CODING: Words stricken are deletions; words underlined are additions.





                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 1                                 .
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 2                                 .
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 3                                 .
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  Representative(s) Safley offered the following:

12

13         Amendment (with title amendment) 

14  Remove from the bill:  Everything after the enacting clause

15

16  and insert in lieu thereof:

17         Section 1.  Section 440.02, Florida Statutes, is

18  amended to read:

19         440.02  Definitions.--When used in this chapter, unless

20  the context clearly requires otherwise, the following terms

21  shall have the following meanings:

22         (1)  "Accident" means only an unexpected or unusual

23  event or result that happens suddenly. A mental or nervous

24  injury due to stress, fright, or excitement only, or

25  disability or death due to the accidental acceleration or

26  aggravation of a venereal disease or of a disease due to the

27  habitual use of alcohol or controlled substances or narcotic

28  drugs, or a disease that manifests itself in the fear of or

29  dislike for an individual because of the individual's race,

30  color, religion, sex, national origin, age, or handicap is not

31  an injury by accident arising out of the employment. If a

                                  1

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  preexisting disease or anomaly is accelerated or aggravated by

 2  an accident arising out of and in the course of employment,

 3  only acceleration of death or acceleration or aggravation of

 4  the preexisting condition reasonably attributable to the

 5  accident is compensable, with respect to death or permanent

 6  impairment.

 7         (2)  "Adoption" or "adopted" means legal adoption prior

 8  to the time of the injury.

 9         (3)  "Carrier" means any person or fund authorized

10  under s. 440.38 to insure under this chapter and includes a

11  self-insurer, and a commercial self-insurance fund authorized

12  under s. 624.462.

13         (4)  "Casual" as used in this section shall be taken to

14  refer only to employments when the work contemplated is to be

15  completed in not exceeding 10 working days, without regard to

16  the number of persons employed, and when the total labor cost

17  of such work is less than $100.

18         (5)  "Child" includes a posthumous child, a child

19  legally adopted prior to the injury of the employee, and a

20  stepchild or acknowledged child born out of wedlock dependent

21  upon the deceased, but does not include married children

22  unless wholly dependent on the employee.  "Grandchild" means a

23  child as above defined of a child as above defined.  "Brother"

24  and "sister" include stepbrothers and stepsisters, half

25  brothers and half sisters, and brothers and sisters by

26  adoption, but does not include married brothers or married

27  sisters unless wholly dependent on the employee. "Child,"

28  "grandchild," "brother," and "sister" include only persons who

29  at the time of the death of the deceased employees are under

30  18 years of age, or under 22 years of age if a full-time

31  student in an accredited educational institution.

                                  2

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1         (6)  "Compensation" means the money allowance payable

 2  to an employee or to his or her dependents as provided for in

 3  this chapter.

 4         (7)  "Construction industry" means for-profit

 5  activities involving the carrying out of any building,

 6  clearing, filling, excavation, or substantial improvement in

 7  the size or use of any structure or the appearance of any

 8  land.  When appropriate to the context, "construction" refers

 9  to the act of construction or the result of construction.

10  However, "construction" shall not mean a landowner's act of

11  construction or the result of a construction upon his or her

12  own premises, provided such premises are not intended to be

13  sold or resold.

14         (8)  "Corporate officer" or "officer of a corporation"

15  means any person who fills an office provided for in the

16  corporate charter or articles of incorporation filed with the

17  Division of Corporations of the Department of State or as

18  permitted or required by chapter 607.

19         (9)(8)  "Date of maximum medical improvement" means the

20  date after which further recovery from, or lasting improvement

21  to, an injury or disease can no longer reasonably be

22  anticipated, based upon reasonable medical probability.

23         (10)(9)  "Death" as a basis for a right to compensation

24  means only death resulting from an injury.

25         (11)(10)  "Department" means the Department of Labor

26  and Employment Security.

27         (12)(11)  "Disability" means incapacity because of the

28  injury to earn in the same or any other employment the wages

29  which the employee was receiving at the time of the injury.

30         (13)(12)  "Division" means the Division of Workers'

31  Compensation of the Department of Labor and Employment

                                  3

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  Security.

 2         (14)(13)(a)  "Employee" means any person engaged in any

 3  employment under any appointment or contract of hire or

 4  apprenticeship, express or implied, oral or written, whether

 5  lawfully or unlawfully employed, and includes, but is not

 6  limited to, aliens and minors.

 7         (b)  "Employee" includes any person who is an officer

 8  of a corporation and who performs services for remuneration

 9  for such corporation within this state, whether or not such

10  services are continuous.

11         1.  Any officer of a corporation may elect to be exempt

12  from this chapter by filing written notice of the election

13  with the division as provided in s. 440.05.

14         2.  As to officers of a corporation who are actively

15  engaged in the construction industry, no more than three

16  officers may elect to be exempt from this chapter by filing

17  written notice of the election with the division as provided

18  in s. 440.05.

19         3.  An officer of a corporation who elects to be exempt

20  from this chapter by filing a written notice of the election

21  with the division as provided in s. 440.05 is not an employee.

22

23  Services are presumed to have been rendered to the corporation

24  if the officer is compensated by other than dividends upon

25  shares of stock of the corporation which the officer owns.

26         (c)  "Employee" includes a sole proprietor or a partner

27  who devotes full time to the proprietorship or partnership

28  and, except as provided in this paragraph, elects to be

29  included in the definition of employee by filing notice

30  thereof as provided in s. 440.05. Partners or sole proprietors

31  actively engaged in the construction industry are considered

                                  4

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  employees unless they elect to be excluded from the definition

 2  of employee by filing written notice of the election with the

 3  division as provided in s. 440.05. However, no more than three

 4  partners in a partnership that is actively engaged in the

 5  construction industry may elect to be excluded. A sole

 6  proprietor or partner who is actively engaged in the

 7  construction industry and who elects to be exempt from this

 8  chapter by filing a written notice of the election with the

 9  division as provided in s. 440.05 is not an employee. For

10  purposes of this chapter, an independent contractor is an

11  employee unless he or she meets all of the conditions set

12  forth in subparagraph (d)1.

13         (d)  "Employee" does not include:

14         1.  An independent contractor, if:

15         a.  The independent contractor maintains a separate

16  business with his or her own work facility, truck, equipment,

17  materials, or similar accommodations;

18         b.  The independent contractor holds or has applied for

19  a federal employer identification number, unless the

20  independent contractor is a sole proprietor who is not

21  required to obtain a federal employer identification number

22  under state or federal requirements;

23         c.  The independent contractor performs or agrees to

24  perform specific services or work for specific amounts of

25  money and controls the means of performing the services or

26  work;

27         d.  The independent contractor incurs the principal

28  expenses related to the service or work that he or she

29  performs or agrees to perform;

30         e.  The independent contractor is responsible for the

31  satisfactory completion of work or services that he or she

                                  5

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  performs or agrees to perform and is or could be held liable

 2  for a failure to complete the work or services;

 3         f.  The independent contractor receives compensation

 4  for work or services performed for a commission or on a

 5  per-job or competitive-bid basis and not on any other basis;

 6         g.  The independent contractor may realize a profit or

 7  suffer a loss in connection with performing work or services;

 8         h.  The independent contractor has continuing or

 9  recurring business liabilities or obligations; and

10         i.  The success or failure of the independent

11  contractor's business depends on the relationship of business

12  receipts to expenditures.

13

14  However, the determination as to whether an individual

15  included in the Standard Industrial Classification Manual of

16  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

17  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,

18  2448, or 2449, or a newspaper delivery person, is an

19  independent contractor is governed not by the criteria in this

20  paragraph but by common-law principles, giving due

21  consideration to the business activity of the individual.

22         2.  A real estate salesperson or agent, if that person

23  agrees, in writing, to perform for remuneration solely by way

24  of commission.

25         3.  Bands, orchestras, and musical and theatrical

26  performers, including disk jockeys, performing in licensed

27  premises as defined in chapter 562, if a written contract

28  evidencing an independent contractor relationship is entered

29  into before the commencement of such entertainment.

30         4.  An owner-operator of a motor vehicle who transports

31  property under a written contract with a motor carrier which

                                  6

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  evidences a relationship by which the owner-operator assumes

 2  the responsibility of an employer for the performance of the

 3  contract, if the owner-operator is required to furnish the

 4  necessary motor vehicle equipment and all costs incidental to

 5  the performance of the contract, including, but not limited

 6  to, fuel, taxes, licenses, repairs, and hired help; and the

 7  owner-operator is paid a commission for transportation service

 8  and is not paid by the hour or on some other time-measured

 9  basis.

10         5.  A person whose employment is both casual and not in

11  the course of the trade, business, profession, or occupation

12  of the employer.

13         6.  A volunteer, except a volunteer worker for the

14  state or a county, municipality, or other governmental entity.

15  A person who does not receive monetary remuneration for

16  services is presumed to be a volunteer unless there is

17  substantial evidence that a valuable consideration was

18  intended by both employer and employee. For purposes of this

19  chapter, the term "volunteer" includes, but is not limited to:

20         a.  Persons who serve in private nonprofit agencies and

21  who receive no compensation other than expenses in an amount

22  less than or equivalent to the standard mileage and per diem

23  expenses provided to salaried employees in the same agency or,

24  if such agency does not have salaried employees who receive

25  mileage and per diem, then such volunteers who receive no

26  compensation other than expenses in an amount less than or

27  equivalent to the customary mileage and per diem paid to

28  salaried workers in the community as determined by the

29  division; and

30         b.  Volunteers participating in federal programs

31  established under Pub. L. No. 93-113.

                                  7

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1         7.  Any officer of a corporation who elects to be

 2  exempt from this chapter.

 3         8.  A sole proprietor or officer of a corporation who

 4  actively engages in the construction industry, and a partner

 5  in a partnership that is actively engaged in the construction

 6  industry, who elects to be exempt from the provisions of this

 7  chapter. Such sole proprietor, officer, or partner is not an

 8  employee for any reason until the notice of revocation of

 9  election filed pursuant to s. 440.05 is effective.

10         9.  An exercise rider who does not work for a single

11  horse farm or breeder, and who is compensated for riding on a

12  case-by-case basis, provided a written contract is entered

13  into prior to the commencement of such activity which

14  evidences that an employee/employer relationship does not

15  exist.

16         10.  A taxicab, limousine, or other passenger

17  vehicle-for-hire driver who operates said vehicles pursuant to

18  a written agreement with a company which provides any

19  dispatch, marketing, insurance, communications, or other

20  services under which the driver and any fees or charges paid

21  by the driver to the company for such services are not

22  conditioned upon, or expressed as a proportion of, fare

23  revenues.

24         (15)(14)  "Employer" means the state and all political

25  subdivisions thereof, all public and quasi-public corporations

26  therein, every person carrying on any employment, and the

27  legal representative of a deceased person or the receiver or

28  trustees of any person. If the employer is a corporation,

29  parties in actual control of the corporation, including, but

30  not limited to, the president, officers who exercise broad

31  corporate powers, directors, and all shareholders who directly

                                  8

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  or indirectly own a controlling interest in the corporation,

 2  are considered the employer for the purposes of ss. 440.105

 3  and 440.106.

 4         (16)(15)(a)  "Employment," subject to the other

 5  provisions of this chapter, means any service performed by an

 6  employee for the person employing him or her.

 7         (b)  "Employment" includes:

 8         1.  Employment by the state and all political

 9  subdivisions thereof and all public and quasi-public

10  corporations therein, including officers elected at the polls.

11         2.  All private employments in which four or more

12  employees are employed by the same employer or, with respect

13  to the construction industry, all private employment in which

14  one or more employees are employed by the same employer.

15         3.  Volunteer firefighters responding to or assisting

16  with fire or medical emergencies whether or not the

17  firefighters are on duty.

18         (c)  "Employment" does not include service performed by

19  or as:

20         1.  Domestic servants in private homes.

21         2.  Agricultural labor performed on a farm in the

22  employ of a bona fide farmer, or association of farmers, who

23  employs 5 or fewer regular employees and who employs fewer

24  than 12 other employees at one time for seasonal agricultural

25  labor that is completed in less than 30 days, provided such

26  seasonal employment does not exceed 45 days in the same

27  calendar year. The term "farm" includes stock, dairy, poultry,

28  fruit, fur-bearing animals, fish, and truck farms, ranches,

29  nurseries, and orchards. The term "agricultural labor"

30  includes field foremen, timekeepers, checkers, and other farm

31  labor supervisory personnel.

                                  9

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1         3.  Professional athletes, such as professional boxers,

 2  wrestlers, baseball, football, basketball, hockey, polo,

 3  tennis, jai alai, and similar players, and motorsports teams

 4  competing in a motor racing event as defined in s. 549.08.

 5         4.  Labor under a sentence of a court to perform

 6  community services as provided in s. 316.193.

 7         (17)(16)  "Misconduct" includes, but is not limited to,

 8  the following, which shall not be construed in pari materia

 9  with each other:

10         (a)  Conduct evincing such willful or wanton disregard

11  of an employer's interests as is found in deliberate violation

12  or disregard of standards of behavior which the employer has

13  the right to expect of the employee; or

14         (b)  Carelessness or negligence of such a degree or

15  recurrence as to manifest culpability, wrongful intent, or

16  evil design, or to show an intentional and substantial

17  disregard of an employer's interests or of the employee's

18  duties and obligations to the employer.

19         (18)(17)  "Injury" means personal injury or death by

20  accident arising out of and in the course of employment, and

21  such diseases or infection as naturally or unavoidably result

22  from such injury.  Damage to dentures, eyeglasses, prosthetic

23  devices, and artificial limbs may be included in this

24  definition only when the damage is shown to be part of, or in

25  conjunction with, an accident. This damage must specifically

26  occur as the result of an accident in the normal course of

27  employment.

28         (19)(18)  "Parent" includes stepparents and parents by

29  adoption, parents-in-law, and any persons who for more than 3

30  years prior to the death of the deceased employee stood in the

31  place of a parent to him or her and were dependent on the

                                  10

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  injured employee.

 2         (20)  "Partner" means any person who is a member of a

 3  partnership that is formed by two or more persons to carry on

 4  as coowners of a business with the understanding that there

 5  will be a proportional sharing of the profits and losses

 6  between them. For the purposes of this chapter, a partner is a

 7  person who participates fully in the management of the

 8  partnership and who is personally liable for its debts.

 9         (21)(19)  "Permanent impairment" means any anatomic or

10  functional abnormality or loss determined as a percentage of

11  the body as a whole, existing after the date of maximum

12  medical improvement, which results from the injury.

13         (22)(20)  "Person" means individual, partnership,

14  association, or corporation, including any public service

15  corporation.

16         (23)(21)  "Self-insurer" means:

17         (a)  Any employer who has secured payment of

18  compensation pursuant to s. 440.38(1)(b) or (6) as an

19  individual self-insurer;

20         (b)  Any employer who has secured payment of

21  compensation through a group self-insurance fund under s.

22  624.4621;

23         (c)  Any group self-insurance fund established under s.

24  624.4621;

25         (d)  A public utility as defined in s. 364.02 or s.

26  366.02 that has assumed by contract the liabilities of

27  contractors or subcontractors pursuant to s. 440.571; or

28         (e)  Any local government self-insurance fund

29  established under s. 624.4622.

30         (24)  "Sole proprietor" means a natural person who owns

31  a form of business in which that person owns all the assets of

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  the business and is solely liable for all the debts of the

 2  business.

 3         (25)(22)  "Spouse" includes only a spouse substantially

 4  dependent for financial support upon the decedent and living

 5  with the decedent at the time of the decedent's injury and

 6  death, or substantially dependent upon the decedent for

 7  financial support and living apart at that time for

 8  justifiable cause.

 9         (26)(23)  "Time of injury" means the time of the

10  occurrence of the accident resulting in the injury.

11         (27)(24)  "Wages" means the money rate at which the

12  service rendered is recompensed under the contract of hiring

13  in force at the time of the injury and includes only the wages

14  earned and reported for federal income tax purposes on the job

15  where the employee is injured and any other concurrent

16  employment where he or she is also subject to workers'

17  compensation coverage and benefits, together with the

18  reasonable value of housing furnished to the employee by the

19  employer which is the permanent year-round residence of the

20  employee, and gratuities to the extent reported to the

21  employer in writing as taxable income received in the course

22  of employment from others than the employer and employer

23  contributions for health insurance for the employee or the

24  employee's dependents. However, housing furnished to migrant

25  workers shall be included in wages unless provided after the

26  time of injury. In employment in which an employee receives

27  consideration for housing, the reasonable value of such

28  housing compensation shall be the actual cost to the employer

29  or based upon the Fair Market Rent Survey promulgated pursuant

30  to s. 8 of the Housing and Urban Development Act of 1974,

31  whichever is less. However, if employer contributions for

                                  12

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  housing or health insurance are continued after the time of

 2  the injury, the contributions are not "wages" for the purpose

 3  of calculating an employee's average weekly wage.

 4         (28)(25)  "Weekly compensation rate" means and refers

 5  to the amount of compensation payable for a period of 7

 6  consecutive days, including any Saturdays, Sundays, holidays,

 7  and other nonworking days which fall within such period of 7

 8  consecutive days.  When Saturdays, Sundays, holidays, or other

 9  nonworking days immediately follow the first 7 days of

10  disability or occur at the end of a period of disability as

11  the last day or days of such period, such nonworking days

12  constitute a part of the period of disability with respect to

13  which compensation is payable.

14         (29)(26)  "Construction design professional" means an

15  architect, professional engineer, landscape architect, or

16  surveyor and mapper, or any corporation, professional or

17  general, that has a certificate to practice in the

18  construction design field from the Department of Business and

19  Professional Regulation.

20         (30)(27)  "Individual self-insurer" means any employer

21  who has secured payment of compensation pursuant to s.

22  440.38(1)(b) as an individual self-insurer.

23         (31)(28)  "Domestic individual self-insurer" means an

24  individual self-insurer:

25         (a)  Which is a corporation formed under the laws of

26  this state;

27         (b)  Who is an individual who is a resident of this

28  state or whose primary place of business is located in this

29  state; or

30         (c)  Which is a partnership whose principals are

31  residents of this state or whose primary place of business is

                                  13

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  located in this state.

 2         (32)(29)  "Foreign individual self-insurer" means an

 3  individual self-insurer:

 4         (a)  Which is a corporation formed under the laws of

 5  any state, district, territory, or commonwealth of the United

 6  States other than this state;

 7         (b)  Who is an individual who is not a resident of this

 8  state and whose primary place of business is not located in

 9  this state; or

10         (c)  Which is a partnership whose principals are not

11  residents of this state and whose primary place of business is

12  not located in this state.

13         (33)(30)  "Insolvent member" means an individual

14  self-insurer which is a member of the Florida Self-Insurers

15  Guaranty Association, Incorporated, or which was a member and

16  has withdrawn pursuant to s. 440.385(1)(b), and which has been

17  found insolvent, as defined in paragraph (34)(a) (31)(a),

18  paragraph (34)(b) (31)(b), or paragraph (34)(c) (31)(c), by a

19  court of competent jurisdiction in this or any other state, or

20  meets the definition of paragraph (34)(d) (31)(d).

21         (34)(31)  "Insolvency" or "insolvent" means:

22         (a)  With respect to an individual self-insurer:

23         1.  That all assets of the individual self-insurer, if

24  made immediately available, would not be sufficient to meet

25  all the individual self-insurer's liabilities;

26         2.  That the individual self-insurer is unable to pay

27  its debts as they become due in the usual course of business;

28         3.  That the individual self-insurer has substantially

29  ceased or suspended the payment of compensation to its

30  employees as required in this chapter; or

31         4.  That the individual self-insurer has sought

                                  14

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  protection under the United States Bankruptcy Code or has been

 2  brought under the jurisdiction of a court of bankruptcy as a

 3  debtor pursuant to the United States Bankruptcy Code.

 4         (b)  With respect to an employee claiming insolvency

 5  pursuant to s. 440.25(5), a person is insolvent who:

 6         1.  Has ceased to pay his or her debts in the ordinary

 7  course of business and cannot pay his or her debts as they

 8  become due; or

 9         2.  Has been adjudicated insolvent pursuant to the

10  federal bankruptcy law.

11         (35)(32)  "Arising out of" pertains to occupational

12  causation. An accidental injury or death arises out of

13  employment if work performed in the course and scope of

14  employment is the major contributing cause of the injury or

15  death.

16         (36)(33)  "Soft-tissue injury" means an injury that

17  produces damage to the soft tissues, rather than to the

18  skeletal tissues or soft organs.

19         (37)(34)  "Catastrophic injury" means a permanent

20  impairment constituted by:

21         (a)  Spinal cord injury involving severe paralysis of

22  an arm, a leg, or the trunk;

23         (b)  Amputation of an arm, a hand, a foot, or a leg

24  involving the effective loss of use of that appendage;

25         (c)  Severe brain or closed-head injury as evidenced

26  by:

27         1.  Severe sensory or motor disturbances;

28         2.  Severe communication disturbances;

29         3.  Severe complex integrated disturbances of cerebral

30  function;

31         4.  Severe episodic neurological disorders; or

                                  15

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 1         5.  Other severe brain and closed-head injury

 2  conditions at least as severe in nature as any condition

 3  provided in subparagraphs 1.-4.;

 4         (d)  Second-degree or third-degree burns of 25 percent

 5  or more of the total body surface or third-degree burns of 5

 6  percent or more to the face and hands;

 7         (e)  Total or industrial blindness; or

 8         (f)  Any other injury that would otherwise qualify

 9  under this chapter of a nature and severity that would qualify

10  an employee to receive disability income benefits under Title

11  II or supplemental security income benefits under Title XVI of

12  the federal Social Security Act as the Social Security Act

13  existed on July 1, 1992, without regard to any time

14  limitations provided under that act.

15         (38)(35)  "Insurer" means a group self-insurers' fund

16  authorized by s. 624.4621, an individual self-insurer

17  authorized by s. 440.38, a commercial self-insurance fund

18  authorized by s. 624.462, an assessable mutual insurer

19  authorized by s. 628.6011, and an insurer licensed to write

20  workers' compensation and employer's liability insurance in

21  this state. The term "carrier," as used in this chapter, means

22  an insurer as defined in this subsection.

23         (39)(36)  "Statement," for the purposes of ss. 440.105

24  and 440.106, includes, but is not limited to, any notice,

25  representation, statement, proof of injury, bill for services,

26  diagnosis, prescription, hospital or doctor record, X ray,

27  test result, or other evidence of loss, injury, or expense.

28         Section 2.  Section 440.05, Florida Statutes, is

29  amended to read:

30         440.05  Election of exemption; revocation of election;

31  notice; certification.--

                                  16

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 1         (1)  Each corporate officer who elects not to accept

 2  the provisions of this chapter or who, after electing such

 3  exemption, revokes that exemption shall mail to the division

 4  in Tallahassee notice to such effect in accordance with a form

 5  to be prescribed by the division.

 6         (2)  Each sole proprietor or partner who elects to be

 7  included in the definition of "employee" or who, after such

 8  election, revokes that election must mail to the division in

 9  Tallahassee notice to such effect, in accordance with a form

10  to be prescribed by the division.

11         (3)  Each sole proprietor, partner, or officer of a

12  corporation who is actively engaged in the construction

13  industry and who elects an exemption from this chapter or who,

14  after electing such exemption, revokes that exemption, must

15  mail a written notice to such effect to the division on a form

16  prescribed by the division. The notice of election to be

17  exempt from the provisions of this chapter must be notarized

18  and under oath. The notice of election to be exempt which is

19  submitted to the division by the sole proprietor, partner, or

20  officer of a corporation must list the name, federal tax

21  identification number, social security number, and all

22  certified or registered licenses issued pursuant to chapter

23  489 held by the person seeking the exemption, a copy of

24  relevant documentation as to employment status filed with the

25  IRS as specified by the division, a copy of the relevant

26  occupational license in the primary jurisdiction of the

27  business, and, for corporate officers and partners, the

28  registration number of the corporation or partnership filed

29  with the Division of Corporations of the Department of State.

30  The notice of election to be exempt form must identify each

31  sole proprietorship, partnership, or corporation that employs

                                  17

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    Amendment No.     (for drafter's use only)





 1  the person electing the exemption and must list the social

 2  security number or federal tax identification number of each

 3  such employer and the additional documentation required by

 4  this section. In addition, the notice of election to be exempt

 5  form must provide that the sole proprietor, partner, or

 6  officer electing an exemption is not entitled to benefits

 7  under this chapter, must provide that the election does not

 8  exceed exemption limits for officers and partnerships provided

 9  in s. 440.02, and must certify that any employees of the sole

10  proprietor, partner, or officer electing an exemption are

11  covered by workers' compensation insurance. Upon receipt of

12  the notice of the election to be exempt, receipt of all

13  application fees, and a determination by the division that the

14  notice meets the requirements of this subsection, the division

15  shall issue a certification of the election to the sole

16  proprietor, partner, or officer, unless the division

17  determines that the information contained in the notice is

18  invalid. The division shall revoke a certificate of election

19  to be exempt from coverage upon a determination by the

20  division that the person does not meet the requirements for

21  exemption or that the information contained in the notice of

22  election to be exempt is invalid. The certificate of election

23  must list the names of the sole proprietorship, partnership,

24  or corporation listed in the request for exemption. A new

25  certificate of election must be obtained each time the person

26  is employed by a new sole proprietorship, partnership, or

27  corporation that is not listed on the certificate of election.

28  A copy of the certificate of election must be sent to each

29  workers' compensation carrier identified in the request for

30  exemption. The certification of the election is valid until

31  the sole proprietor, partner, or officer revokes her or his

                                  18

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    Amendment No.     (for drafter's use only)





 1  election. Upon filing a notice of revocation of election, a

 2  sole proprietor, partner, or officer who is a subcontractor

 3  must notify her or his contractor.  Upon revocation of a

 4  certificate of election of exemption by the division, the

 5  division shall notify the workers' compensation carriers

 6  identified in the request for exemption.

 7         (4)  The notice of election to be exempt from the

 8  provisions of this chapter must contain a notice that clearly

 9  states in substance the following:  "Any person who, knowingly

10  and with intent to injure, defraud, or deceive the division or

11  any employer or employee, insurance company, or purposes

12  program, files a notice of election to be exempt containing

13  any false or misleading information is guilty of a felony of

14  the third degree." Each person filing a notice of election to

15  be exempt shall personally sign the notice and attest that he

16  or she has reviewed, understands, and acknowledges the

17  foregoing notice.

18         (5)(4)  A notice given under subsection (1), subsection

19  (2), or subsection (3) shall become effective when issued by

20  the division or 30 days after an application for an exemption

21  is received by the division, whichever occurs first is not

22  effective until 30 days after the date it is mailed to the

23  division in Tallahassee. However, if an accident or

24  occupational disease occurs less than 30 days after the

25  effective date of the insurance policy under which the payment

26  of compensation is secured or the date the employer qualified

27  as a self-insurer, such notice is effective as of 12:01 a.m.

28  of the day following the date it is mailed to the division in

29  Tallahassee.

30         (6)  A construction industry certificate of election to

31  be exempt which is issued in accordance with this section

                                  19

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    Amendment No.     (for drafter's use only)





 1  shall be valid for 2 years after the effective date stated

 2  thereon. Both the effective date and the expiration date must

 3  be listed on the face of the certificate by the division. The

 4  construction industry certificate must expire at midnight, 2

 5  years from its issue date, as noted on the face of the

 6  exemption certificate. Any person who has received from the

 7  division a construction industry certificate of election to be

 8  exempt which is in effect on December 31, 1998, shall file a

 9  new notice of election to be exempt by the last day in his or

10  her birth month following December 1, 1998. A construction

11  industry certificate of election to be exempt may be revoked

12  before its expiration by the sole proprietor, partner, or

13  officer for whom it was issued or by the division for the

14  reasons stated in this section.  At least 60 days prior to the

15  expiration date of a construction industry certificate of

16  exemption issued after December 1, 1998, the division shall

17  send notice of the expiration date and an application for

18  renewal to the certificateholder at the address on the

19  certificate.

20         (7)(5)  Any contractor responsible for compensation

21  under s. 440.10 may register in writing with the workers'

22  compensation carrier for any subcontractor and shall

23  thereafter be entitled to receive written notice from the

24  carrier of any cancellation or nonrenewal of the policy.

25         (8)(a)(6)  The division may assess a fee, not to exceed

26  $50, with each request for a nonconstruction election or

27  renewal of election under this section.

28         (b)  The division must assess a fee of $50, with each

29  request for a construction industry certificate of election to

30  be exempt or renewal of election to be exempt under this

31  section.

                                  20

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 1         (c)  The funds collected by the division shall be used

 2  to administer this section, and to audit the businesses that

 3  pay the fee for compliance with any requirements of this

 4  chapter, and to enforce compliance with the provisions of this

 5  chapter.

 6         Section 3.  Subsection (4) of section 440.09, Florida

 7  Statutes, is amended to read:

 8         440.09  Coverage.--

 9         (4)  An employee shall not be entitled to compensation

10  or benefits under this chapter if any judge of compensation

11  claims, administrative law judge hearing officer, court, or

12  jury convened in this state determines that the employee has

13  knowingly or intentionally engaged in any of the acts

14  described in s. 440.105 for the purpose of securing workers'

15  compensation benefits.

16         Section 4.  Paragraph (g) of subsection (1) of section

17  440.10, Florida Statutes, is amended to read:

18         440.10  Liability for compensation.--

19         (1)

20         (g)  For purposes of this section, a person is

21  conclusively presumed to be an independent contractor if:

22         1.  The independent contractor provides the general

23  contractor with an affidavit stating that he or she meets all

24  the requirements of s. 440.02(14)(13)(d); and

25         2.  The independent contractor provides the general

26  contractor with a valid certificate of workers' compensation

27  insurance or a valid certificate of exemption issued by the

28  division.

29

30  A sole proprietor, independent contractor, partner, or officer

31  of a corporation who elects exemption from this chapter by

                                  21

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                                                   HOUSE AMENDMENT

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    Amendment No.     (for drafter's use only)





 1  filing a certificate of election under s. 440.05 may not

 2  recover benefits or compensation under this chapter.  An

 3  independent contractor who provides the general contractor

 4  with both an affidavit stating that he or she meets the

 5  requirements of s. 440.02(14)(d) and a certificate of

 6  exemption is not an employee under s. 440.02(14)(c) and may

 7  not recover benefits under this chapter.  For purposes of

 8  determining the appropriate premium for workers' compensation

 9  coverage, carriers may not consider any person who meets the

10  requirements of this paragraph to be an employee.

11         Section 5.  Section 440.103, Florida Statutes, is

12  amended to read:

13         440.103  Building permits; identification of minimum

14  premium policy.--Except as otherwise provided in this chapter,

15  every employer shall, as a condition to receiving a building

16  permit, show proof that it has secured compensation for its

17  employees under this chapter as provided in ss. 440.10 and

18  440.38. Such proof of compensation must be evidenced by a

19  certificate of coverage issued by the carrier, a valid

20  exemption certificate approved by the division, or a copy of

21  the employer's authority to self-insure and shall be presented

22  each time the employer applies for a building permit. As

23  provided in s. 627.413(5), each certificate of coverage must

24  show, on its face, whether or not coverage is secured under

25  the minimum premium provisions of rules adopted by rating

26  organizations licensed by the Department of Insurance the

27  National Council of Compensation Insurers rules. The words

28  "minimum premium policy" or equivalent similar language shall

29  may be typed, printed, stamped, or legibly handwritten.

30         Section 6.  Subsections (1), (2), and (3) of section

31  440.104, Florida Statutes, are amended to read:

                                  22

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 1         440.104  Competitive bidder; civil actions.--

 2         (1)  Any person engaged in the construction industry,

 3  as provided in s. 440.02(7), who loses a competitive bid for a

 4  contract shall have a cause of may bring an action for damages

 5  against the another person who is awarded the contract for

 6  which the bid was made, if the person making the losing bid

 7  establishes that the winning bidder knew or should have known

 8  that he or she was in violation knowingly violated the

 9  provisions of s. 440.10, s. 440.105, or s. 440.38 while

10  performing the work under the contract.

11         (2)  To recover in an action brought under this

12  section, a party must establish a violation of s. 440.10, s.

13  440.105, or s. 440.38 by a preponderance of the evidence.

14         (3)  Upon establishing that the winning bidder knew or

15  should have known of the violation occurred, the person shall

16  recover as liquidated damages 30 10 percent of the total

17  amount bid on the contract by the person bringing the action,

18  or $15,000 $5,000, whichever is greater.

19         Section 7.  Subsections (4), (5), (6), and (7) of

20  section 440.105, Florida Statutes, are amended, and subsection

21  (9) is added to said said, to read:

22         440.105  Prohibited activities; penalties;

23  limitations.--

24         (4)  Whoever violates any provision of this subsection

25  commits insurance fraud a felony of the third degree,

26  punishable as provided in paragraph (f) s. 775.082, s.

27  775.083, or s. 775.084.

28         (a)  It shall be unlawful for any employer to

29  knowingly:

30         1.  Present or cause to be presented any false,

31  fraudulent, or misleading oral or written statement to any

                                  23

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  person as evidence of compliance with s. 440.38.

 2         2.  Make a deduction from the pay of any employee

 3  entitled to the benefits of this chapter for the purpose of

 4  requiring the employee to pay any portion of premium paid by

 5  the employer to a carrier or to contribute to a benefit fund

 6  or department maintained by such employer for the purpose of

 7  providing compensation or medical services and supplies as

 8  required by this chapter.

 9         3.  Fail to secure payment of compensation if required

10  to do so by this chapter.

11         (b)  It shall be unlawful for any person:

12         1.  To knowingly make, or cause to be made, any false,

13  fraudulent, or misleading oral or written statement for the

14  purpose of obtaining or denying any benefit or payment under

15  this chapter.

16         2.  To present or cause to be presented any written or

17  oral statement as part of, or in support of, a claim for

18  payment or of other benefit pursuant to any provision of this

19  chapter, knowing that such statement contains any false,

20  incomplete, or misleading information concerning any fact or

21  thing material to such claim.

22         3.  To prepare or cause to be prepared any written or

23  oral statement that is intended to be presented to any

24  employer, insurance company, or self-insured program in

25  connection with, or in support of, any claim for payment or

26  other benefit pursuant to any provision of this chapter,

27  knowing that such statement contains any false, incomplete, or

28  misleading information concerning any fact or thing material

29  to such claim.

30         4.  To knowingly assist, conspire with, or urge any

31  person to engage in activity prohibited by this section.

                                  24

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1         5.  To knowingly make any false, fraudulent, or

 2  misleading oral or written statement, or to knowingly omit or

 3  conceal material information, required by s. 440.185 or s.

 4  440.381, for the purpose of obtaining workers' compensation

 5  coverage or for the purpose of avoiding, delaying, or

 6  diminishing the amount of payment of any workers' compensation

 7  premiums.

 8         6.  To knowingly misrepresent or conceal payroll,

 9  classification of workers, or information regarding an

10  employer's loss history which would be material to the

11  computation and application of an experience rating

12  modification factor for the purpose of avoiding or diminishing

13  the amount of payment of any workers' compensation premiums.

14         7.  To knowingly present or cause to be presented any

15  false, fraudulent, or misleading oral or written statement to

16  any person as evidence of compliance with s. 440.38, as

17  evidence of eligibility for a certificate of exemption under

18  s. 440.05.

19         (c)  It shall be unlawful for any physician licensed

20  under chapter 458, osteopathic physician licensed under

21  chapter 459, chiropractic physician licensed under chapter

22  460, podiatric physician licensed under chapter 461,

23  optometric physician licensed under chapter 463, or any other

24  practitioner licensed under the laws of this state to

25  knowingly and willfully assist, conspire with, or urge any

26  person to fraudulently violate any of the provisions of this

27  chapter.

28         (d)  It shall be unlawful for any person or

29  governmental entity licensed under chapter 395 to maintain or

30  operate a hospital in such a manner so that such person or

31  governmental entity knowingly and willfully allows the use of

                                  25

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                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  the facilities of such hospital by any person, in a scheme or

 2  conspiracy to fraudulently violate any of the provisions of

 3  this chapter.

 4         (e)  It shall be unlawful for any attorney or other

 5  person, in his or her individual capacity or in his or her

 6  capacity as a public or private employee, or any firm,

 7  corporation, partnership, or association, to knowingly assist,

 8  conspire with, or urge any person to fraudulently violate any

 9  of the provisions of this chapter.

10         (f)  If the amount of any claim or workers'

11  compensation insurance premium involved in any violation of

12  this subsection:

13         1.  Is less than $20,000, the offender commits a felony

14  of the third degree, punishable as provided in s. 775.082, s.

15  775.083, or s. 775.084.

16         2.  Is $20,000 or more, but less than $100,000, the

17  offender commits a felony of the second degree, punishable as

18  provided in s. 775.082, s. 775.083, or s. 775.084.

19         3.  Is $100,000 or more, the offender commits a felony

20  of the first degree, punishable as provided in s. 775.082, s.

21  775.083, or s. 775.084.

22         (5)  It shall be unlawful for any attorney or other

23  person, in his or her individual capacity or in his or her

24  capacity as a public or private employee or for any firm,

25  corporation, partnership, or association, to unlawfully

26  solicit any business in and about city or county hospitals,

27  courts, or any public institution or public place; in and

28  about private hospitals or sanitariums; in and about any

29  private institution; or upon private property of any character

30  whatsoever for the purpose of making workers' compensation

31  claims. Whoever violates any provision of this subsection

                                  26

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  commits a felony of the third degree, punishable as provided

 2  in s. 775.082, s. 775.083, or s. 775.085.

 3         (6)(5)  This section shall not be construed to preclude

 4  the applicability of any other provision of criminal law that

 5  applies or may apply to any transaction.

 6         (7)(6)  For the purpose of the section, the term

 7  "statement" includes, but is not limited to, any notice,

 8  representation, statement, proof of injury, bill for services,

 9  diagnosis, prescription, hospital or doctor records, X ray,

10  test result, or other evidence of loss, injury, or expense.

11         (8)(7)  All claim forms as provided for in this chapter

12  shall contain a notice that clearly states in substance the

13  following: "Any person who, knowingly and with intent to

14  injure, defraud, or deceive any employer or employee,

15  insurance company, or self-insured program, files a statement

16  of claim containing any false or misleading information

17  commits insurance fraud, punishable as provided in s. 817.234

18  is guilty of a felony of the third degree." Each claimant

19  shall personally sign the claim form and attest that he or she

20  has reviewed, understands, and acknowledges the foregoing

21  notice.

22         Section 8.  Present subsections (1) through (7) of

23  section 440.107, Florida Statutes, are redesignated as

24  subsections (5) through (11), respectively, and new

25  subsections (1), (2), (3), and (4) are added to that section

26  to read: 440.107  Division powers to enforce employer

27  compliance with coverage requirements.--

28         (1)  The Legislature finds that the failure of an

29  employer to comply with the workers' compensation coverage

30  requirements under chapter 440 poses an immediate danger to

31  public health, safety, and welfare. The Legislature authorizes

                                  27

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  the division to secure employer compliance with the workers'

 2  compensation coverage requirements and authorizes the division

 3  to conduct investigations for the purpose of ensuring employer

 4  compliance.

 5         (2)  The division and its authorized representatives

 6  may enter and inspect any place of business at any reasonable

 7  time for the limited purpose of investigating compliance with

 8  workers' compensation coverage requirements under this

 9  chapter. Each employer shall keep true and accurate business

10  records that contain such information as the division

11  prescribes by rule. The business records must contain

12  information necessary for the division to determine compliance

13  with workers' compensation coverage requirements and must be

14  maintained within this state by the business, in such a manner

15  as to be accessible within a reasonable time upon request by

16  the division. The business records must be open to inspection

17  and be available for copying by the division at any reasonable

18  time and place and as often as necessary. The division may

19  require from any employer any sworn or unsworn reports,

20  pertaining to persons employed by that employer, deemed

21  necessary for the effective administration of the workers'

22  compensation coverage requirements.

23         (3)  In discharging its duties, the division may

24  administer oaths and affirmations, certify to official acts,

25  issue subpoenas to compel the attendance of witnesses and the

26  production of books, papers, correspondence, memoranda, and

27  other records deemed necessary by the division as evidence in

28  order to ensure proper compliance with the coverage provisions

29  of this chapter.

30         (4)  If a person has refused to obey a subpoena to

31  appear before the division or its authorized representative

                                  28

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                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  and produce evidence requested by the division or to give

 2  testimony about the matter that is under investigation, a

 3  court has jurisdiction to issue an order requiring compliance

 4  with the subpoena if the court has jurisdiction in the

 5  geographical area where the inquiry is being carried on or in

 6  the area where the person who has refused the subpoena is

 7  found, resides, or transacts business. Failure to obey such a

 8  court order may be punished by the court as contempt.

 9         Section 9.  Subsection (7) of section 440.185, Florida

10  Statutes, is amended to read:

11         440.185  Notice of injury or death; reports; penalties

12  for violations.--

13         (7)  Every carrier shall file with the division within

14  21 days after the issuance of a policy or contract of

15  insurance such policy information as the division may require,

16  including notice of whether the policy is a minimum premium

17  policy. Notice of cancellation or expiration of a policy as

18  set out in s. 440.42(2) shall be mailed to the division in

19  accordance with rules promulgated by the division under

20  chapter 120.

21         Section 10.  Subsections (2) and (3) of section 440.42,

22  Florida Statutes, are renumbered as subsections (3) and (4),

23  respectively, and new subsection (2) is added to said section,

24  to read:

25         440.42  Insurance policies; liability.--

26         (2)  A workers' compensation insurance policy may

27  require the employer to release certain employment and wage

28  information maintained by the state pursuant to federal and

29  state unemployment compensation laws except to the extent

30  prohibited or limited under federal law.  By entering into a

31  workers' compensation insurance policy with such a provision,

                                  29

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                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  the employer consents to the release of the information.  The

 2  insurance carrier requiring such consent shall safeguard the

 3  information and maintain its confidentiality.  The carrier

 4  shall limit use of the information to verifying compliance

 5  with the terms of the workers' compensation insurance policy.

 6  The department may charge a fee to cover the cost of

 7  disclosing the information.

 8         Section 11.  Section 440.45, Florida Statutes, is

 9  amended to read:

10         440.45  Office of the Judges of Compensation Claims.--

11         (1)  There is hereby created the Office of the Judges

12  of Compensation Claims within the Department of Labor and

13  Employment Security. The Office of the Judges of Compensation

14  Claims shall be headed by a Chief Judge who shall serve at the

15  pleasure of the Governor and Cabinet.  The Chief Judge shall

16  be appointed by the Governor for a term of 4 years and

17  confirmed by the Cabinet from a list of three two names

18  submitted by the statewide nominating commission created under

19  subsection (2) each of the District Court Judicial Nominating

20  Commissions created by s. 2, Art. V of the State Constitution

21  and s. 43.29. The Chief Judge must possess the same

22  qualifications for appointment as a judge of compensation

23  claims, and the procedure for reappointment of the Chief Judge

24  will be the same as for reappointment of a judge of

25  compensation claims. The office shall be a separate budget

26  entity and the Chief Judge shall be its agency head for all

27  purposes.  The Department of Labor and Employment Security

28  shall provide administrative support and service to the office

29  to the extent requested by the Chief Judge but shall not

30  direct, supervise, or control the Office of the Judges of

31  Compensation Claims in any manner, including but not limited

                                  30

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  to personnel, purchasing, budgetary matters, or property

 2  transactions. The operating budget of the Office of the Judges

 3  of Compensation Claims shall be paid out of the Workers'

 4  Compensation Administration Trust Fund established in s.

 5  440.50.

 6         (2)(a)  The Governor shall appoint full-time judges of

 7  compensation claims to conduct proceedings as required by this

 8  chapter or other law. No person may be nominated to serve

 9  appointed as a judge of compensation claims unless he or she

10  has been a member of The Florida Bar in good standing for the

11  preceding 5 years and is knowledgeable in the practice of law

12  of workers' compensation. No judge of compensation claims

13  shall engage in the private practice of law during a term of

14  office.

15         (b)  Except as provided in paragraph (c), the Governor

16  shall initially appoint a judge of compensation claims from a

17  list of three persons nominated by a statewide nominating

18  commission. The statewide nominating commission shall be

19  composed of the following:

20         1.  Five 5 members, at least one of whom must be a

21  member of a minority group as defined in s. 288.703(3), one of

22  each who resides in each of the territorial jurisdictions of

23  the district courts of appeal, appointed by the Board of

24  Governors of The Florida Bar from among The Florida Bar

25  members who are engaged in the practice of law. On July 1,

26  1999, the term of office of each person appointed by the Board

27  of Governors of The Florida Bar to the commission expires. The

28  Board of Governors shall appoint members who reside in the

29  odd-numbered district court of appeal jurisdictions to 4-year

30  terms each, beginning July 1, 1999, and members who reside in

31  the even-numbered district court of appeal jurisdictions to

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  2-year terms each, beginning July 1, 1999. Thereafter, each

 2  member shall be appointed for a 4-year term;

 3         2.  Five 5 electors, at least one of whom must be a

 4  member of a minority group as defined in s. 288.703(3), one of

 5  each who resides in each of the territorial jurisdictions of

 6  the district courts of appeal, appointed by the Governor. On

 7  July 1, 1999, the term of office of each person appointed by

 8  the Governor to the commission expires. The Governor shall

 9  appoint members who reside in the odd-numbered district court

10  of appeal jurisdictions to 2-year terms each, beginning July

11  1, 1999, and members who reside in the even-numbered district

12  court of appeal jurisdictions to 4-year terms each, beginning

13  July 1, 1999. Thereafter, each member shall be appointed for a

14  4-year term; and

15         3.  Five 5 electors, at least one of whom must be a

16  member of a minority group as defined in s. 288.703(3), one of

17  each who resides in the territorial jurisdictions of the

18  district courts of appeal, selected and appointed by a

19  majority vote of the other 10 members of the commission. On

20  October 1, 1999, the term of office of each person appointed

21  to the commission by its other members expires. A majority of

22  the other members of the commission shall appoint members who

23  reside in the odd-numbered district court of appeal

24  jurisdictions to 2-year terms each, beginning October 1, 1999,

25  and members who reside in the even-numbered district court of

26  appeal jurisdictions to 4-year terms each, beginning October

27  1, 1999. Thereafter, each member shall be appointed for a

28  4-year term.

29

30  A vacancy occurring on the commission shall be filled by the

31  original appointing authority for the unexpired balance of the

                                  32

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  term. No attorney who appears before any judge of compensation

 2  claims more than four times a year is eligible to serve on the

 3  statewide nominating commission. The meetings and

 4  determinations of the nominating commission as to the judges

 5  of compensation claims shall be open to the general public.

 6         (c)  Each judge of compensation claims shall be

 7  appointed for a term of 4 years, but during the term of office

 8  may be removed by the Governor for cause. Prior to the

 9  expiration of a judge's term of office, the statewide

10  nominating commission shall review the judge's conduct and

11  determine whether the judge's performance is satisfactory. If

12  the judge's performance is deemed satisfactory, the commission

13  shall report its finding to the Governor no later than 6

14  months prior to the expiration of the judge's term of office.

15  The Governor shall review the commission's report and may

16  reappoint the judge for an additional 4-year term. If the

17  Governor does not reappoint the judge, the Governor shall

18  inform the commission. The judge shall remain in office until

19  the Governor has appointed a successor judge in accordance

20  with paragraphs (a) and (b). The report of the commission

21  shall include a list of three candidates for appointment. The

22  candidates shall include the judge whose term is expiring, if

23  that judge desires reappointment and the judge's performance

24  is satisfactory upon review by the commission. If a vacancy

25  occurs during a judge's unexpired term, the statewide

26  nominating commission does not find the judge's performance is

27  satisfactory, or the governor does not reappoint the judge,

28  the commission shall issue a report to the Governor shall

29  appoint a successor judge for a term of 4 years in accordance

30  with paragraph (b) which includes a list of three candidates

31  for appointment. The Governor shall review the commission's

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  report, and may select one of the listed candidates. If no

 2  candidate is selected, the Governor shall so inform the

 3  commission, which shall within 2 months issue a report to the

 4  Governor which includes a list of three different candidates

 5  for appointment.

 6         (3)  The Chief Judge shall select from among the full

 7  time judges of the office two or more judges to rotate as

 8  docketing judges. Docketing judges shall review all claims for

 9  benefits for consistency with the requirements of this chapter

10  and the rules of procedure, including but not limited to

11  specificity requirements, and shall dismiss any claim that

12  fails to comport with such rules and requirements. The

13  docketing judge shall not dismiss any claim with prejudice

14  without offering the parties an opportunity to appear and

15  present argument. The Chief Judge may as he or she deems

16  appropriate expand the duties of the docketing judges to

17  include resolution without hearing of other types of

18  procedural and substantive matters, including resolution of

19  fee disputes.

20         (4)  The Chief Judge shall have the discretion to

21  require mediation and to designate qualified persons to act as

22  mediators in any dispute pending before the judges of

23  compensation claims and the division. The Chief Judge shall

24  coordinate with the Director of the Division of Workers'

25  Compensation to establish a mandatory mediation program to

26  facilitate early and efficient resolution of disputes arising

27  under this chapter and to establish training and continuing

28  education for new and sitting judges.

29         (5)  The Office of the Judges of Compensation Claims

30  shall promulgate rules to effect the purposes of this section.

31  Such rules shall include procedural rules applicable to

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  workers' compensation claim resolution and uniform criteria

 2  for measuring the performance of the office, including but not

 3  limited to the number of cases assigned and disposed, the age

 4  of pending and disposed cases, timeliness of decisionmaking,

 5  extraordinary fee awards and other performance indicators. The

 6  workers' compensation rules of procedure approved by the

 7  Supreme Court shall apply until the rules promulgated by the

 8  Office of the Judges of Compensation Claims pursuant to this

 9  section become effective.

10         (6)  Not later than December 1 of each year, the Office

11  of the Judges of Compensation Claims and the Division of

12  Workers' Compensation shall jointly issue a written report to

13  the Governor, the House of Representatives, and the Senate

14  summarizing the amount, cost, and outcome of all litigation

15  resolved in the prior year, summarizing the disposition of

16  applications and motions for mediation conferences and

17  recommending changes or improvements to the dispute resolution

18  elements of the Workers' Compensation Law and regulations.

19         Section 12.  On July 1, 1999, the term of office of the

20  Chief Judge of Compensation Claims expires.  The statewide

21  nominating commission is directed to submit a list of three

22  names to the Governor pursuant to section 440.45(1), Florida

23  Statutes, by March 1, 1999.

24         Section 13.  The revised process for nomination and

25  appointment of judges of compensation claims, as provided in

26  the amendments to section 440.45(2)(c), Florida Statutes,

27  shall take effect on July 1, 1999.

28         Section 14.  Any member of the statewide nominating

29  commission whose term of office expires as a result of the

30  amendment of section 440.45, Florida Statutes, by this act is

31  eligible for reappointment.

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1         Section 15.  Subsection (9) is added to section

 2  626.989, Florida Statutes, to read:

 3         626.989  Division of Insurance Fraud; definition;

 4  investigative, subpoena powers; protection from civil

 5  liability; reports to division; division investigator's power

 6  to execute warrants and make arrests.--

 7         (9)  In recognition of the complementary roles of

 8  investigating instances of workers' compensation fraud and

 9  enforcing compliance with the workers' compensation coverage

10  requirements under chapter 440, the Division of Insurance

11  Fraud of the Department of Insurance and the Division of

12  Workers' Compensation of the Department of Labor and

13  Employment Security are directed to prepare and submit a joint

14  performance report to the President of the Senate and the

15  Speaker of the House of Representatives by November 1 of each

16  year for each of the next 2 years, and then every 3 years

17  thereafter, describing the results obtained in achieving

18  compliance with the workers' compensation coverage

19  requirements and reducing the incidence of workers'

20  compensation fraud.

21         Section 16.  Subsection (5) is added to section

22  627.413, Florida Statutes, to read:

23         627.413  Contents of policies, in general;

24  identification.--

25         (5)  Any policy that is a minimum premium policy issued

26  by an insurer pursuant to the minimum premium provisions of

27  rules adopted by rating organizations licensed by the

28  Department of Insurance, shall have typed, printed, stamped,

29  or legibly handwritten on the certificate the words "minimum

30  premium policy" or equivalent language.  The department may

31  impose an administrative fine pursuant to s. 624.4211 if the

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1  department finds any violation of this subsection.

 2         Section 17.  Paragraph (h) is added to subsection (2)

 3  of section 775.15, Florida Statutes, to read:

 4         775.15  Time limitations.--

 5         (2)  Except as otherwise provided in this section,

 6  prosecutions for other offenses are subject to the following

 7  periods of limitation:

 8         (h)  A prosecution for a felony violation of s. 440.105

 9  must be commenced within 5 years after the violation is

10  committed.

11         Section 18.  Effective July 1, 1998, the Division of

12  Workers' Compensation shall notify all persons holding a

13  construction industry certificate of election of exemption of

14  the requirements of section 440.05, Florida Statutes, as

15  amended by this act.

16         Section 19.  There is hereby appropriated to the

17  Department of Labor and Employment Security from the Workers'

18  Compensation Administration Trust Fund for the fiscal year

19  1998-1999, 15 positions and $1,100,000 to carry out the

20  provisions of this act.  This section shall take effect July

21  1, 1998.

22         Section 20.  Except as otherwise provided in this act,

23  this act shall take effect January 1, 1999.

24

25

26  ================ T I T L E   A M E N D M E N T ===============

27  And the title is amended as follows:

28         On page 1, line 3 through page 2, line 31

29  remove from the title of the bill:  all of said lines

30

31  and insert in lieu thereof:

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1         amending s. 440.02, F.S.; defining the terms

 2         "corporate officer," "partner," and "sole

 3         proprietor," as used in ch. 440, F.S.; amending

 4         s. 440.05, F.S.; authorizing the Division of

 5         Workers' Compensation of the Department of

 6         Labor and Employment Security to approve and

 7         revoke certificates of exemption; specifying

 8         requirements for notices of election to be

 9         exempt; providing for renewal of exemption

10         certificates; requiring notice on election

11         forms that providing false information is a

12         felony; revising fees for exemptions and

13         specifying use of fees by the division;

14         amending s. 440.09, F.S.; conforming references

15         to judges of compensation claims and

16         administrative law judges; amending s. 440.10,

17         F.S.; relating to liability for compensation;

18         revising provisions relating to when a person

19         is conclusively presumed to be an independent

20         contractor; providing circumstances in which

21         carriers may not consider a person to be an

22         employee; amending s. 440.103, F.S.; revising

23         the documentation that must be filed by an

24         employer that obtains a building permit;

25         specifying requirements for certificates of

26         coverage; amending s. 440.104, F.S.; revising

27         the cause of action and remedies available to

28         losers of competitive bidding against persons

29         who violate certain provisions; increasing

30         recoverable damages; amending s. 440.105, F.S.;

31         providing penalties; providing a time

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1         limitation for bringing an action under s.

 2         440.105(4), F.S.; amending s. 440.107, F.S.;

 3         providing legislative findings related to

 4         noncompliance with workers' compensation

 5         coverage requirements; authorizing the division

 6         to enter and inspect places of business for

 7         investigating compliance; requiring employers

 8         to maintain records required by the division by

 9         rule; authorizing the division to require sworn

10         reports from employers, to administer oaths,

11         and to issue subpoenas to enforce compliance;

12         providing penalties for refusal to obey a

13         subpoena; amending s. 440.185, F.S.; requiring

14         carriers to notify the division whether certain

15         policies are minimum premium policies; amending

16         s. 440.42, F.S.; authorizing workers'

17         compensation policies to require employers to

18         release certain employment and wage

19         information; amending s. 440.45, F.S.; revising

20         term of office, qualifications, and method of

21         nomination for the Chief Judge of the Office of

22         the Judges of Compensation Claims; providing

23         for expiration of term of office for members of

24         the statewide nominating commission for judges

25         of compensation claims; providing for new

26         appointments to the nominating commission and

27         staggered terms; revising the procedures for

28         nominating commission regarding performance of

29         sitting judges and regarding nominations of

30         applicants; providing for expiration of the

31         term of office and reappointment of the Chief

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                                                   HOUSE AMENDMENT

                                    Bill No. CS for CS for SB 1406

    Amendment No.     (for drafter's use only)





 1         Judge of Compensation Claims; amending s.

 2         626.989, F.S.; requiring the Division of

 3         Insurance Fraud of the Department of Insurance

 4         and the Division of Workers' Compensation of

 5         the Department of Labor and Employment Security

 6         to periodically submit a joint performance

 7         report to the Legislature; amending s. 627.413,

 8         F.S.; specifying notice requirements for

 9         minimum premium policies; requiring the

10         division to notify certain persons of certain

11         requirements of this act; providing an

12         appropriation; s. amending s. 775.15, F.S.;

13         providing a statute of limitations for certain

14         insurance fraud violations; providing an

15         effective date.

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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