Senate Bill 1422

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



    Florida Senate - 1998                                  SB 1422

    By Senator Gutman





    34-846-98

  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 20.171, F.S.; creating the Workers'

  4         Compensation Appeals Commission within the

  5         Department of Labor and Employment Security;

  6         providing for its membership, terms, powers,

  7         and duties; amending s. 440.02, F.S.;

  8         redefining the terms "wages" and "catastrophic

  9         injury"; amending s. 440.05, F.S.; providing

10         that specified persons may not be exempt;

11         amending s. 440.09, F.S.; requiring findings by

12         a psychiatrist for specific coverage; providing

13         a rebuttable presumption; amending s. 440.10,

14         F.S.; revising exemptions from liability;

15         amending s. 440.107, F.S.; increasing civil

16         penalties against employers; amending s.

17         440.13, F.S.; providing for medical treatment

18         in a managed care arrangement; providing for

19         costs associated with independent medical

20         examinations; amending s. 440.134, F.S.;

21         defining the terms "informal grievance,"

22         "formal grievance," and "certified case

23         manager"; authorizing employers who self-insure

24         to opt out of mandatory managed care

25         arrangements; providing procedures for managed

26         care arrangement grievances; revising

27         compliance procedures; amending s. 440.14,

28         F.S.; revising criteria for determination of

29         pay; amending s. 440.15, F.S.; providing for

30         eligibility for permanent total disability,

31         temporary total disability, permanent

                                  1

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         impairment, and wage-loss benefits;

  2         establishing a system for wage-loss benefits;

  3         revising compensation for temporary partial

  4         disability; amending s. 440.191, F.S.;

  5         requiring employees to provide additional

  6         notice when seeking benefits; amending s.

  7         440.192, F.S.; revising procedures for

  8         resolving benefit disputes; amending s. 440.20,

  9         F.S.; removing a process for denying

10         compensability and the corresponding notice;

11         providing procedures for approving or

12         disapproving lump-sum settlements; amending s.

13         440.34, F.S.; revising criteria for attorney's

14         fees; creating s. 440.595, F.S.; authorizing

15         the Division of Workers' Compensation to

16         administer oaths and subpoena witnesses and

17         materials; creating s. 440.596, F.S.; creating

18         a nonprofit corporation to be known as the

19         Florida Workers' Compensation Management Board,

20         Incorporated; providing for its membership,

21         terms, powers, and duties; providing an

22         effective date.

23

24  Be It Enacted by the Legislature of the State of Florida:

25

26         Section 1.  Subsection (3) of section 20.171, Florida

27  Statutes, is amended, and subsection (5) is added to that

28  section, to read:

29         20.171  Department of Labor and Employment

30  Security.--There is created a Department of Labor and

31  Employment Security.

                                  2

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (3)  The following commissions are established within

  2  the Department of Labor and Employment Security:

  3         (a)  Public Employees Relations Commission.

  4         (b)  Unemployment Appeals Commission.

  5         (c)  Workers' Compensation Appeals Commission.

  6         (5)(a)  There is created within the Department of Labor

  7  and Employment Security a Workers' Compensation Appeals

  8  Commission to consist of a presiding judge and four other

  9  judges, all to be appointed by the Governor. Each appointee

10  must have the qualifications required by law for judges of the

11  District Courts of Appeal. In addition to these

12  qualifications, the judges of the commission must be

13  substantially experienced in the field of workers'

14  compensation.

15         1.  Initially, the Governor shall appoint after October

16  1, 1998, but before May 15, 1999, two judges for terms of 4

17  years, two judges for terms of 3 years, and one judge for a

18  term of 2 years. Thereafter, each full-time judge shall be

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

20  may be removed by the Governor for cause.

21         2.  The appointments shall be made from nominees

22  submitted to the Governor by the Supreme Court Judicial

23  Nominating Commission. The Supreme Court Judicial Nominating

24  Commission shall nominate to the Governor by August 1, 1998,

25  fifteen candidates for the initial five appointments.

26         3.  Before the expiration of the term of office of a

27  judge, the conduct of the judge shall be reviewed by the

28  Supreme Court Judicial Nominating Commission. A report of the

29  Supreme Court Judicial Nominating Commission regarding

30  retention shall be furnished to the Governor no less than 6

31  months before the expiration of the term of the judge. If the

                                  3

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  Supreme Court Judicial Nominating Commission issues a

  2  favorable report, the Governor shall reappoint the judge.

  3  However, if the Supreme Court Judicial Nominating Commission

  4  issues an unfavorable report, the Supreme Court Judicial

  5  Nominating Commission must nominate three candidates for

  6  appointment. If a vacancy occurs during an unexpired term of a

  7  judge on the Workers' Compensation Appeals Commission, the

  8  Supreme Court Judicial Nominating Commission shall nominate

  9  three candidates for appointment.

10         4.  The Workers' Compensation Appeals Commission judges

11  are subject to the jurisdiction of the Judicial Qualifications

12  Commission during their term of office.

13         (b)  The presiding judge may, by order filed in the

14  records of the commission and with the approval of the

15  Governor, appoint associate judges to serve as temporary

16  judges of the commission. The appointment may be made only of

17  a currently commissioned judge of compensation claims. This

18  appointment must be for such periods of time as not to cause

19  an undue burden on the caseload in the judges's jurisdiction.

20  An associate judge appointed shall receive no additional pay

21  during the appointment except for expenses incurred in the

22  performance of the additional duties.

23         (c)  The total salaries and benefits of all judges of

24  the commission are to be paid from the trust fund created by

25  s. 440.50. Notwithstanding any other provision of law, the

26  judges shall be paid a salary equal to that paid under state

27  law to the judges of District Courts of Appeal.

28         (d)1.  The Workers' Compensation Appeals Commission is

29  vested with all authority, powers, duties, and

30  responsibilities relating to review of orders of judges of

31  compensation claims in workers' compensation proceedings under

                                  4

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  chapter 440. The commission shall review by appeal final

  2  orders of the judges of compensation claims entered pursuant

  3  to chapter 440. The First District Court of Appeal shall

  4  retain jurisdiction over all workers' compensation proceedings

  5  pending before it on October 1, 1998. The commission may hold

  6  sessions and conduct hearings at any place within the state.

  7  Three judges must consider each case and the concurrence of

  8  two is necessary for a decision. Any judge may request an en

  9  banc hearing for review of a final order of a judge of

10  compensation claims.

11         2.  The Workers' Compensation Appeals Commission is

12  assigned to the Department of Labor and Employment Security

13  for administrative purposes but, in the performance of its

14  powers and duties under chapter 440, is not subject to

15  control, supervision, or direction by the Department of Labor

16  and Employment Security. The commission is not an agency for

17  purposes of chapter 120.

18         3.  The property, personnel, and appropriations related

19  to the commission's specified authority, powers, duties, and

20  responsibilities shall be provided to the commission by the

21  Department of Labor and Employment Security.

22         (e)  The commission shall make such expenditures,

23  including expenditures for personnel services and rent at the

24  seat of government and elsewhere, for law books, reference

25  materials, periodicals, furniture, equipment, and supplies,

26  and for printing and binding, as is necessary in exercising

27  its authority and powers and carrying out its duties and

28  responsibilities. All expenditures of the commission must be

29  allowed and paid as provided in s. 440.50 upon the

30  presentation of itemized vouchers therefor approved by the

31  presiding judge.

                                  5

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (f)  The commission may charge, in its discretion, for

  2  publications, subscriptions, and copies of records and

  3  documents. The fees must be deposited in the fund established

  4  in s. 440.50.

  5         (g)1.  The presiding judge shall exercise

  6  administrative supervision over the Workers' Compensation

  7  Appeals Commission and over the judges and other officers of

  8  such courts.

  9         2.  The presiding judge of the Workers' Compensation

10  Appeals Commission has the power:

11         a.  To assign judges to hear appeals from final orders

12  of judges of compensation claims.

13         b.  To hire and assign clerks and staff.

14         c.  To regulate use of courtrooms.

15         d.  To supervise dockets and calendars.

16         e.  To do everything necessary to promote the prompt

17  and efficient administration of justice in the courts over

18  which he or she presides.

19         3.  The presiding judge shall be selected by a majority

20  of the judges for a term of 2 years. The presiding judge may

21  succeed himself or herself.

22         4.  There may be an executive assistant to the

23  presiding judge to perform such duties as the presiding judge

24  may direct. Additionally, each judge may have research

25  assistants or law clerks.

26         (h)1.  The commission shall maintain and keep open

27  during reasonable business hours a clerk's office, in the

28  Capitol or some other suitable building in Leon County, for

29  the transaction of its business. All books, papers, records,

30  files, and the seal of the commission must be kept at this

31

                                  6

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  office. The office shall be furnished and equipped by the

  2  commission.

  3         2.  The Workers' Compensation Appeals Commission shall

  4  appoint a clerk to serve at the pleasure of the commission.

  5  The clerk shall give bond in the sum of $5,000 payable to the

  6  Governor or his or her successors in office, to be approved by

  7  a majority of the members of the commission, conditioned upon

  8  the faithful discharge of the duties of the office, which bond

  9  shall be filed in the office of the Secretary of State.

10         3.  The clerk shall be paid an annual salary to be

11  determined in accordance with s. 25.302.

12         4.  The clerk may employ such deputies and clerical

13  assistants as are necessary. Their number and compensation

14  must be approved by the commission and paid from the annual

15  appropriation for the commission from the Workers'

16  Compensation Administration Trust Fund.

17         5.  The clerk, upon the filing of a certified copy of a

18  notice of appeal or petition, shall charge and collect a

19  filing fee of $250 for each case docketed, and shall charge

20  and collect for copying, certifying, or furnishing opinions,

21  records, papers, or other instruments, and for other services

22  the same service charges as provided in s. 28.24. The state or

23  its agencies, when appearing as appellant or petitioner, is

24  exempt from the filing fee required by this subsection.

25         6.  The clerk of the Workers' Compensation Appeals

26  Commission shall prepare a statement of all fees collected in

27  duplicate each month and remit one copy of the statement,

28  together with all fees collected by him or her, to the State

29  Comptroller, who shall place the same to the credit of the

30  Workers' Compensation Administration Trust Fund.

31

                                  7

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (i)  The commission shall have a seal for

  2  authenticating its orders, awards, and proceedings, upon which

  3  shall be inscribed the words "State of Florida Workers'

  4  Compensation Appeals Commission--Seal", and it shall be

  5  judicially noticed.

  6         (j)  The commission may destroy obsolete records of the

  7  commission.

  8         (k)  Workers' Compensation Appeals Commission judges

  9  shall be reimbursed for travel expenses as provided in s.

10  112.061.

11         (l)  The practice and procedure before the commission

12  and the judges of compensation claims are governed by rules

13  adopted by the Supreme Court except to the extent that the

14  rules conflict with the provisions of chapter 440.

15         Section 2.  Subsections (24) and (34) of section

16  440.02, Florida Statutes, are amended to read:

17         440.02  Definitions.--When used in this chapter, unless

18  the context clearly requires otherwise, the following terms

19  shall have the following meanings:

20         (24)  "Wages" means the money rate at which the service

21  rendered is recompensed under the contract of hiring in force

22  at the time of the injury and includes only the wages earned

23  and reported for federal income tax purposes on the job where

24  the employee is injured and any other concurrent employment

25  where he or she is also subject to workers' compensation

26  coverage and benefits, together with the reasonable value of

27  housing furnished to the employee by the employer which is the

28  permanent year-round residence of the employee, and gratuities

29  to the extent reported to the employer in writing as taxable

30  income received in the course of employment from others than

31  the employer and employer contributions for health insurance

                                  8

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  for the employee or the employee's dependents. However,

  2  housing furnished to migrant workers shall be included in

  3  wages unless provided after the time of injury. In employment

  4  in which an employee receives consideration for housing, the

  5  reasonable value of such housing compensation shall be the

  6  actual cost to the employer or based upon the Fair Market Rent

  7  Survey promulgated pursuant to s. 8 of the Housing and Urban

  8  Development Act of 1974, whichever is less. However, if

  9  employer contributions for housing or health insurance are

10  continued after the time of the injury, the contributions are

11  not "wages" for the purpose of calculating an employee's

12  average weekly wage.

13         (34)  "Catastrophic injury" means a permanent

14  impairment constituted by:

15         (a)  Spinal cord injury involving severe paralysis of

16  an arm, a leg, or the trunk;

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

18  involving the effective loss of use of that appendage;

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

20  by:

21         1.  Severe sensory or motor disturbances;

22         2.  Severe communication disturbances;

23         3.  Severe complex integrated disturbances of cerebral

24  function;

25         4.  Severe episodic neurological disorders; or

26         5.  Other severe brain and closed-head injury

27  conditions at least as severe in nature as any condition

28  provided in subparagraphs 1.-4.;

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

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

31  percent or more to the face and hands; or

                                  9

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (e)  Total or industrial blindness.; or

  2         (f)  Any other injury that would otherwise qualify

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

  4  an employee to receive disability income benefits under Title

  5  II or supplemental security income benefits under Title XVI of

  6  the federal Social Security Act as the Social Security Act

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

  8  limitations provided under that act.

  9         Section 3.  Subsection (3) of section 440.05, Florida

10  Statutes, is amended to read:

11         440.05  Election of exemption; revocation of election;

12  notice; certification.--

13         (3)  An officer of a corporation, sole proprietor,

14  independent contractor, or partner engaged in the construction

15  industry is not exempt from coverage under this chapter. Each

16  sole proprietor, partner, or officer of a corporation who is

17  actively engaged in the construction industry and who elects

18  an exemption from this chapter or who, after electing such

19  exemption, revokes that exemption, must mail a written notice

20  to such effect to the division on a form prescribed by the

21  division. The notice of election to be exempt from the

22  provisions of this chapter must be notarized and under oath.

23  The election must list the name, federal tax identification

24  number, social security number, and all certified or

25  registered licenses issued pursuant to chapter 489 held by the

26  person seeking the exemption. The form must identify each sole

27  proprietorship, partnership, or corporation that employs the

28  person electing the exemption and must list the social

29  security number or federal tax identification number of each

30  such employer. In addition, the election form must provide

31  that the sole proprietor, partner, or officer electing an

                                  10

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  exemption is not entitled to benefits under this chapter, must

  2  provide that the election does not exceed exemption limits for

  3  officers and partnerships provided in s. 440.02, and must

  4  certify that any employees of the sole proprietor, partner, or

  5  officer electing an exemption are covered by workers'

  6  compensation insurance. Upon receipt of the notice of the

  7  election to be exempt and a determination that the notice

  8  meets the requirements of this subsection, the division shall

  9  issue a certification of the election to the sole proprietor,

10  partner, or officer. The certificate of election must list the

11  names of the sole proprietorship, partnership, or corporation

12  listed in the request for exemption. A new certificate of

13  election must be obtained each time the person is employed by

14  a new sole proprietorship, partnership, or corporation that is

15  not listed on the certificate of election. A copy of the

16  certificate of election must be sent to each workers'

17  compensation carrier identified in the request for exemption.

18  The certification of the election is valid until the sole

19  proprietor, partner, or officer revokes her or his election.

20  Upon filing a notice of revocation of election, a sole

21  proprietor, partner, or officer who is a subcontractor must

22  notify her or his contractor.

23         Section 4.  Subsections (1) and (7) of section 440.09,

24  Florida Statutes, are amended to read:

25         440.09  Coverage.--

26         (1)  The employer shall pay compensation or furnish

27  benefits required by this chapter if the employee suffers an

28  accidental compensable injury or death arising out of work

29  performed in the course and the scope of employment. The

30  injury, its occupational cause, and any resulting

31  manifestations or disability or impairment shall be

                                  11

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  established to a reasonable degree of medical certainty and by

  2  objective medical findings. Mental or nervous injuries

  3  occurring as a manifestation of an injury compensable under

  4  this section must shall be demonstrated by clear and

  5  convincing evidence, supported by objective medical findings

  6  from a division-certified psychiatrist. Compensation is not

  7  payable after maximum medical improvement as a result of any

  8  impairment rating for psychiatric impairments.

  9         (a)  This chapter does not require any compensation or

10  benefits for any subsequent injury the employee suffers as a

11  result of an original injury arising out of and in the course

12  of employment unless the original injury is the major

13  contributing cause of the subsequent injury.

14         (b)  If an injury arising out of and in the course of

15  employment combines with a preexisting disease or condition to

16  cause or prolong disability or need for treatment, the

17  employer must pay compensation or benefits required by this

18  chapter only to the extent that the injury arising out of and

19  in the course of employment is and remains the major

20  contributing cause of the disability or need for treatment.

21         (c)  Death resulting from an operation by a surgeon

22  furnished by the employer for the cure of hernia as required

23  in s. 440.15(6) shall for the purpose of this chapter be

24  considered to be a death resulting from the accident causing

25  the hernia.

26         (d)  If an accident happens while the employee is

27  employed elsewhere than in this state, which would entitle the

28  employee or his or her dependents to compensation if it had

29  happened in this state, the employee or his or her dependents

30  are entitled to compensation if the contract of employment was

31  made in this state, or the employment was principally

                                  12

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  localized in this state. However, if an employee receives

  2  compensation or damages under the laws of any other state, the

  3  total compensation for the injury may not be greater than is

  4  provided in this chapter.

  5         (7)(a)  To ensure that the workplace is a drug-free

  6  environment and to deter the use of drugs and alcohol at the

  7  workplace, if the employer has reason to suspect that the

  8  injury was occasioned primarily by the intoxication of the

  9  employee or by the use of any drug, as defined in this

10  chapter, which affected the employee to the extent that the

11  employee's normal faculties were impaired, and the employer

12  has not implemented a drug-free workplace pursuant to ss.

13  440.101 and 440.102, the employer may require the employee to

14  submit to a test for the presence of any or all drugs or

15  alcohol in his or her system.

16         (b)  If the employee has, at the time of the injury, a

17  blood alcohol level equal to or greater than the level

18  specified in s. 316.193, or if the employee has a positive

19  confirmation of a drug as defined in this act, it is presumed

20  that the injury was occasioned primarily by the intoxication

21  of, or by the influence of the drug upon, the employee. With

22  respect to a drug-free workplace program, this presumption may

23  be rebutted by evidence beyond a reasonable doubt that the

24  intoxication or influence of the drug did not contribute to

25  the injury. In the absence of a drug-free workplace program,

26  this presumption may be rebutted by clear and convincing

27  evidence that the intoxication or influence of the drug did

28  not contribute to the injury. Percent by weight of alcohol in

29  the blood must be based upon grams of alcohol per 100

30  milliliters of blood. If the results are positive, the testing

31  facility must maintain the specimen for a minimum of 90 days.

                                  13

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  Blood serum may be used for testing purposes under this

  2  chapter; however, if this test is used, the presumptions under

  3  this section do not arise unless the blood alcohol level is

  4  proved to be medically and scientifically equivalent to or

  5  greater than the comparable blood alcohol level that would

  6  have been obtained if the test were based on percent by weight

  7  of alcohol in the blood. However, if, before the accident, the

  8  employer had actual knowledge of and expressly acquiesced in

  9  the employee's presence at the workplace while under the

10  influence of such alcohol or drug, the presumptions specified

11  in this subsection do not apply.

12         (c)  If the injured worker refuses to submit to a drug

13  and alcohol test, it shall be presumed in the absence of clear

14  and convincing evidence to the contrary that the injury was

15  occasioned primarily by the influence of drugs or alcohol.

16         (d)  The division shall provide by rule for the

17  authorization and regulation of drug-testing policies,

18  procedures, and methods. Testing of injured employees shall

19  not commence until such rules are adopted.

20         Section 5.  Subsection (1) of section 440.10, Florida

21  Statutes, is amended to read:

22         440.10  Liability for compensation.--

23         (1)(a)  Every employer coming within the provisions of

24  this chapter, including any brought within the chapter by

25  waiver of exclusion or of exemption, shall be liable for, and

26  shall secure, the payment to his or her employees, or any

27  physician, surgeon, or pharmacist providing services under the

28  provisions of s. 440.13, of the compensation payable under ss.

29  440.13, 440.15, and 440.16. Any contractor or subcontractor

30  who engages in any public or private construction in the state

31

                                  14

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  shall secure and maintain compensation for his or her

  2  employees under this chapter as provided in s. 440.38.

  3         (b)  In case a contractor sublets any part or parts of

  4  his or her contract work to a subcontractor or subcontractors,

  5  all of the employees of such contractor and subcontractor or

  6  subcontractors engaged on such contract work shall be deemed

  7  to be employed in one and the same business or establishment;

  8  and the contractor shall be liable for, and shall secure, the

  9  payment of compensation to all such employees, except to

10  employees of a subcontractor who has secured such payment.

11         (c)  A contractor may require a subcontractor to

12  provide evidence of workers' compensation insurance or a copy

13  of his or her certificate of election. A subcontractor

14  electing to be exempt as a sole proprietor, partner, or

15  officer of a corporation shall provide a copy of his or her

16  certificate of election to the contractor.

17         (d)1.  If a contractor becomes liable for the payment

18  of compensation to the employees of a subcontractor who has

19  failed to secure such payment in violation of s. 440.38, the

20  contractor or other third-party payor shall be entitled to

21  recover from the subcontractor all benefits paid or payable

22  plus interest unless the contractor and subcontractor have

23  agreed in writing that the contractor will provide coverage.

24         2.  If a contractor or third-party payor becomes liable

25  for the payment of compensation to the employee of a

26  subcontractor who is actively engaged in the construction

27  industry and has elected to be exempt from the provisions of

28  this chapter, but whose election is invalid, the contractor or

29  third-party payor may recover from the independent contractor

30  claimant, partnership, or corporation all benefits paid or

31  payable plus interest, unless the contractor and the

                                  15

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  subcontractor have agreed in writing that the contractor will

  2  provide coverage.

  3         (e)  A subcontractor is not liable for the payment of

  4  compensation to the employees of another subcontractor on such

  5  contract work and is not protected by the

  6  exclusiveness-of-liability provisions of s. 440.11 from action

  7  at law or in admiralty on account of injury of such employee

  8  of another subcontractor.

  9         (f)  If an employer willfully fails to secure

10  compensation as required by this chapter, the division shall

11  may assess against the employer a penalty not to exceed $5,000

12  for each employee of that employer who is classified by the

13  employer as an independent contractor but who is found by the

14  division or a judge of compensation claims to not meet the

15  criteria for an independent contractor that are set forth in

16  s. 440.02.

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

18  conclusively presumed to be an independent contractor if:

19         1.  The independent contractor provides the general

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

21  the requirements of s. 440.02(13)(d); or and

22         2.  The independent contractor provides the general

23  contractor with a valid certificate of workers' compensation

24  insurance or a valid certificate of exemption issued by the

25  division.

26

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

28  of a corporation who elects exemption from this chapter by

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

30  recover benefits or compensation under this chapter.

31

                                  16

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         Section 6.  Subsections (1) and (3) of section 440.107,

  2  Florida Statutes, are amended to read:

  3         440.107  Division powers to enforce employer compliance

  4  with coverage requirements.--

  5         (1)  Whenever the division determines that an employer

  6  who is required to secure the payment to his or her employees

  7  of the compensation provided for by this chapter has failed to

  8  do so, such failure shall be deemed an immediate serious

  9  danger to public health, safety, or welfare sufficient to

10  justify service by the division of a stop-work order on the

11  employer, requiring the cessation of all business operations

12  at the place of employment or job site. The order shall take

13  effect upon the date of service upon the employer, unless the

14  employer provides evidence satisfactory to the division of

15  having secured any necessary insurance or self-insurance and

16  pays a civil penalty to the division, to be deposited by the

17  division into the Workers' Compensation Administration Trust

18  Fund, in the amount of $100 per day for each day the employer

19  was not in compliance with this chapter. If the division does

20  not issue a stop-work order, it shall assess a civil penalty,

21  to be deposited by the division into the Workers' Compensation

22  Administration Trust Fund, in an amount of $200 per day for

23  each day the employer was not in compliance with this chapter.

24         (3)  In addition to any penalty, stop-work order, or

25  injunction, The division shall may assess against any

26  employer, who has failed to secure any the payment of

27  compensation as required by this chapter, a penalty in the

28  amount of:

29         (a)  Three times Twice the amount the employer would

30  have paid during periods it illegally failed to secure payment

31

                                  17

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  of compensation in the preceding 3-year period based on the

  2  employer's payroll during the preceding 3-year period; or

  3         (b)  One thousand dollars, whichever is greater.

  4

  5  Any penalty assessed under this subsection is due within 30

  6  days after the date on which the employer is notified, except

  7  that, if the division has posted a stop-work order or obtained

  8  injunctive relief against the employer, payment is due, in

  9  addition to those conditions set forth in this section, as a

10  condition to relief from a stop-work order or an injunction.

11  Interest shall accrue on amounts not paid when due at the rate

12  of 1 percent per month.

13         Section 7.  Paragraph (f) is added to subsection (2) of

14  section 440.13, Florida Statutes, and paragraph (c) of

15  subsection (4) and subsection (5) of that section are amended,

16  to read:

17         440.13  Medical services and supplies; penalty for

18  violations; limitations.--

19         (2)  MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.--

20         (f)  If the employee is not enrolled in a managed-care

21  arrangement and requests alternative medical care, and the

22  request is denied by the carrier, the employee must establish

23  by clear and convincing evidence that the alternative medical

24  care in the same or another specialty is medically necessary.

25  Alternative medical care for employees enrolled in a

26  managed-care arrangement must be provided by the managed-care

27  arrangement.

28         (4)  NOTICE OF TREATMENT TO CARRIER; FILING WITH

29  DIVISION.--

30         (c)  It is the policy for the administration of the

31  workers' compensation system that there be reasonable access

                                  18

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  to medical information by all parties to facilitate the

  2  self-executing features of the law. Notwithstanding the

  3  limitations in s. 455.241 and subject to the limitations in s.

  4  381.004, upon the request of the employer, the carrier, or the

  5  attorney for either of them, the medical records of an injured

  6  employee must be furnished to those persons and the medical

  7  condition of the injured employee must be discussed with those

  8  persons, if the records and the discussions are restricted to

  9  conditions relating to the workplace injury. Any such

10  discussions may be held before or after the filing of a claim

11  without the knowledge, consent, or presence of any other party

12  or his or her agent or representative. A health care provider

13  who willfully refuses to provide medical records or to discuss

14  the medical condition of the injured employee, after a

15  reasonable request is made for such information pursuant to

16  this subsection, shall be subject by the division to one or

17  more of the penalties set forth in paragraph (8)(b). For

18  purposes of this section, the term "discussion" means the free

19  interchange of ideas, facts, and findings among the parties

20  and health care providers which is designed to aid the parties

21  in reaching conclusions that will enable them to carry out

22  their legal obligations and responsibilities.

23         (5)  INDEPENDENT MEDICAL EXAMINATIONS.--

24         (a)  In any dispute concerning overutilization, medical

25  benefits, compensability, or disability under this chapter,

26  the carrier or the employee may select an independent medical

27  examiner. The examiner may be a health care provider treating

28  or providing other care to the employee. An independent

29  medical examiner may not render an opinion outside his or her

30  area of expertise, as demonstrated by licensure and applicable

31  practice parameters.

                                  19

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (b)  Each party is bound by his or her selection of an

  2  independent medical examiner and is entitled to an alternate

  3  examiner only if:

  4         1.  The examiner is not qualified to render an opinion

  5  upon an aspect of the employee's illness or injury which is

  6  material to the claim or petition for benefits;

  7         2.  The examiner ceases to practice in the specialty

  8  relevant to the employee's condition;

  9         3.  The examiner is unavailable due to injury, death,

10  or relocation outside a reasonably accessible geographic area;

11  or

12         4.  The parties agree to an alternate examiner.

13

14  Any party may request, or a judge of compensation claims may

15  require, designation of a division medical advisor as an

16  independent medical examiner. The opinion of the advisors

17  acting as examiners shall not be afforded the presumption set

18  forth in paragraph (9)(c).

19         (c)  The carrier may, at its election, contact the

20  claimant directly to schedule a reasonable time for an

21  independent medical examination when the carrier elects to

22  schedule the examination. The carrier must confirm the

23  scheduling agreement in writing within 5 days and notify

24  claimant's counsel, if any, at least 7 days before the date

25  upon which the independent medical examination is scheduled to

26  occur. An attorney representing a claimant is not authorized

27  to schedule independent medical evaluations under this

28  subsection. This section does not prohibit the attorney from

29  scheduling an examination with an independent medical examiner

30  selected by the employee.

31

                                  20

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (d)  Each party is responsible for any costs incurred

  2  for an independent medical examination. An injured employee

  3  may recover the costs incurred for the independent medical

  4  examination if the injured employee successfully prosecutes a

  5  claim against the carrier and the independent medical

  6  examination was directly relevant to that successful

  7  prosecution.

  8         (e)(d)  If the employee fails to appear for the

  9  carrier-requested independent medical examination without good

10  cause and fails to advise the physician at least 24 hours

11  before the scheduled date for the examination that he or she

12  cannot appear, the employee is barred from recovering

13  compensation for any period during which he or she has refused

14  to submit to such examination. Further, the employee shall

15  reimburse the carrier 50 percent of the physician's

16  cancellation or no-show fee for the carrier-requested

17  independent medical examination unless the carrier that

18  schedules the examination fails to timely provide to the

19  employee a written confirmation of the date of the examination

20  pursuant to paragraph (c) which includes an explanation of why

21  he or she failed to appear. The employee may appeal to a judge

22  of compensation claims for reimbursement when the carrier

23  withholds payment in excess of the authority granted by this

24  section.

25         (f)(e)  No medical opinion other than the opinion of a

26  medical advisor appointed by the judge of compensation claims

27  or division, an independent medical examiner, or an authorized

28  treating provider is admissible in proceedings before the

29  judges of compensation claims.

30         (g)(f)  Attorney's fees incurred by an injured employee

31  in connection with delay of or opposition to an independent

                                  21

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  medical examination, including, but not limited to, motions

  2  for protective orders, are not recoverable under this chapter.

  3         Section 8.  Subsections (1), (2), (10), (15), and (18)

  4  of section 440.134, are amended to read:

  5         440.134  Workers' compensation managed care

  6  arrangement.--

  7         (1)  As used in this section, the term:

  8         (a)  "Agency" means the Agency for Health Care

  9  Administration.

10         (b)  "Complaint" means any dissatisfaction expressed by

11  an injured worker concerning an insurer's workers'

12  compensation managed care arrangement.

13         (c)  "Emergency care" means medical services as defined

14  in chapter 395.

15         (d)  "Grievance" means dissatisfaction with the medical

16  care provided by an insurer's workers' compensation managed

17  care arrangement health care providers, expressed in writing

18  by an injured worker.

19         (e)  "Informal grievance" means a verbal complaint,

20  expressed by the injured employee or provider, of

21  dissatisfaction with care, services, or benefits and addressed

22  immediately through telephonic or personal interaction at the

23  time the complaint is made known.

24         (f)  "Formal grievance" means a written expression of

25  dissatisfaction with care, services, or benefits received

26  which is submitted by a provider or injured employee, or on

27  the employee's behalf by an agent or a provider.

28         (g)(e)  "Insurer" means an insurance carrier,

29  self-insurance fund, assessable mutual insurer, or

30  individually self-insured employer.

31

                                  22

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (h)(f)  "Service area" means the agency-approved

  2  geographic area within which an insurer is authorized to offer

  3  a workers' compensation managed care arrangement.

  4         (i)  "Certified case manager" means an individual who

  5  is responsible for timely coordinating quality health care

  6  services to meet an individual's specific health care needs in

  7  a cost-effective manner. The division shall adopt by rule the

  8  minimum qualifications for designation as a certified case

  9  manager. Until the division adopts its rules, a registered

10  nurse licensed under chapter 464 or a graduate of a medical

11  school accredited by the American Medical Association who has

12  had at least 1 year of experience as a case manager in

13  workers' compensation or a similar environment is qualified to

14  perform the duties of a certified case manager.

15         (j)(g)  "Workers' compensation managed care

16  arrangement" means an arrangement under which a provider of

17  health care, a health care facility, a group of providers of

18  health care, a group of providers of health care and health

19  care facilities, an insurer that has an exclusive provider

20  organization approved under s. 627.6472 or a health

21  maintenance organization licensed under part I of chapter 641

22  has entered into a written agreement directly or indirectly

23  with an insurer to provide and to manage appropriate remedial

24  treatment, care, and attendance to injured workers in

25  accordance with this chapter.

26         (k)(h)  "Capitated contract" means a contract in which

27  an insurer pays directly or indirectly a fixed amount to a

28  health care provider in exchange for the future rendering of

29  medical services for covered expenses.

30         (l)(i)  "Medical care coordinator" means a primary care

31  provider within a provider network who is responsible for

                                  23

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  managing the medical care of an injured worker including

  2  determining other health care providers and health care

  3  facilities to which the injured employee will be referred for

  4  evaluation or treatment. A medical care coordinator shall be a

  5  physician licensed under chapter 458 or an osteopathic

  6  physician licensed under chapter 459.

  7         (m)(j)  "Provider network" means a comprehensive panel

  8  of health care providers and health care facilities who have

  9  contracted directly or indirectly with an insurer to provide

10  appropriate remedial treatment, care, and attendance to

11  injured workers in accordance with this chapter.

12         (n)(k)  "Primary care provider" means, except in the

13  case of emergency treatment, the initial treating physician

14  and, when appropriate, continuing treating physician, who may

15  be a family practitioner, general practitioner, or internist

16  physician licensed under chapter 458; a family practitioner,

17  general practitioner, or internist osteopathic physician

18  licensed under chapter 459; a chiropractor licensed under

19  chapter 460; a podiatrist licensed under chapter 461; an

20  optometrist licensed under chapter 463; or a dentist licensed

21  under chapter 466.

22         (2)(a)  The agency shall, beginning April 1, 1994,

23  authorize an insurer to offer or utilize a workers'

24  compensation managed care arrangement after the insurer files

25  a completed application along with the payment of a $1,000

26  application fee, and upon the agency's being satisfied that

27  the applicant has the ability to provide quality of care

28  consistent with the prevailing professional standards of care

29  and the insurer and its workers' compensation managed care

30  arrangement otherwise meets the requirements of this section.

31  Effective April 1, 1994, no insurer may offer or utilize a

                                  24

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  managed care arrangement without such authorization. The

  2  authorization, unless sooner suspended or revoked, shall

  3  automatically expire 2 years after the date of issuance unless

  4  renewed by the insurer. The authorization shall be renewed

  5  upon application for renewal and payment of a renewal fee of

  6  $1,000, provided that the insurer is in compliance with the

  7  requirements of this section and any rules adopted hereunder.

  8  An application for renewal of the authorization shall be made

  9  90 days prior to expiration of the authorization, on forms

10  provided by the agency. The renewal application shall not

11  require the resubmission of any documents previously filed

12  with the agency if such documents have remained valid and

13  unchanged since their original filing.

14         (b)  Effective January 1, 1997, the employer shall,

15  subject to the limitations specified elsewhere in this

16  chapter, furnish to the employee solely through managed care

17  arrangements such medically necessary remedial treatment,

18  care, and attendance for such period as the nature of the

19  injury or the process of recovery requires. However, employers

20  who self-insure under s. 440.38 may opt out of the mandatory

21  managed-care arrangements and this section by providing such

22  medically necessary remedial treatment, care, and attendance

23  for such periods as the nature of the injury or process of

24  recovery requires, as specified in s. 440.13. This section may

25  not be construed to prevent an employer who has self-insured

26  under s. 440.38 from choosing to use managed-care arrangements

27  to provide treatment to its employees.

28         (10)  Written procedures and methods for the management

29  of an injured worker's medical care by a medical care

30  coordinator or certified case manager, including:

31

                                  25

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (a)  The mechanism for assuring that covered employees

  2  receive all initial covered services from a primary care

  3  provider participating in the provider network, except for

  4  emergency care.

  5         (b)  The mechanism for assuring that all continuing

  6  covered services be received from the same primary care

  7  provider participating in the provider network that provided

  8  the initial covered services, except when services from

  9  another provider are authorized by the medical care

10  coordinator or certified case manager, pursuant to paragraph

11  (d).

12         (c)  The policies and procedures for allowing an

13  employee one change to another provider within the same

14  specialty and provider network as the authorized treating

15  physician during the course of treatment for a work-related

16  injury, if a request is made to the medical care coordinator

17  or certified case manager by the employee; and requiring that

18  special provision be made for more than one such referral

19  through the arrangement's grievance procedures.

20         (d)  The process for assuring that all referrals

21  authorized by a medical care coordinator or certified case

22  manager are made to the participating network providers,

23  unless medically necessary treatment, care, and attendance are

24  not available and accessible to the injured worker in the

25  provider network.

26         (15)(a)  A workers' compensation managed care

27  arrangement must have and use procedures for hearing

28  complaints and resolving written grievances from injured

29  workers and health care providers. The procedures must be

30  aimed at mutual agreement for settlement and may include

31

                                  26

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  arbitration procedures. Procedures provided herein are in

  2  addition to other procedures contained in this chapter.

  3         (b)  The grievance procedure must be described in

  4  writing and provided to the affected workers and health care

  5  providers.

  6         (c)  Informal grievances must be initiated and

  7  concluded within 7 calendar days unless the parties and the

  8  managed-care arrangement mutually agree to an extension. The 7

  9  days commence upon telephonic or personal contact by the

10  employee, the provider, the agency, or the division. If the

11  informal grievance remains unresolved, the managed-care

12  arrangement must notify the party of the result in writing and

13  advise the party of his or her rights to institute formal

14  grievance. The written notification must include the name,

15  address, and telephone number of the contact person

16  responsible for instituting the formal grievance. The

17  managed-care arrangement must also advise the employee to

18  contact the employee assistance office for additional

19  information concerning his or her rights and responsibilities

20  and the dispute-resolution process under the Florida Workers'

21  Compensation Law.

22         (d)  In order to ensure that there are no undue delays

23  in the dispute-resolution process, the managed-care grievance

24  coordinator shall, within 3 business days, forward a copy of

25  the formal grievance to the division's employee assistance

26  office. Formal grievances must be initiated and concluded

27  within 30 days after receipt by the managed-care arrangement

28  unless the employee or provider and the managed-care

29  arrangement mutually agree to an extension. If the grievance

30  involves the collection of information outside the service

31  area, the managed-care arrangement has an additional 15

                                  27

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  calendar days to process the formal grievance. The

  2  managed-care arrangement shall notify the employee in writing

  3  that additional information is required to complete review of

  4  the grievance and that a maximum of 45 days will be allowed

  5  for this review. Within 5 business days, the managed-care

  6  arrangement shall notify the party of these requirements in

  7  writing.

  8         (e)  The managed-care arrangement shall provide written

  9  notice to its employees and providers of the right to proceed

10  under s. 440.191 with the Department of Labor and Employment

11  Security, Division of Workers' Compensation, upon completion

12  of the formal grievance procedure if the issues are not

13  resolved. The managed-care arrangement must furnish a copy of

14  the final decision letter from the managed-care arrangement

15  regarding the grievance to the employer, the carrier, and the

16  Division of Workers' Compensation upon request.

17         (f)(c)  At the time the workers' compensation managed

18  care arrangement is implemented, the insurer must provide

19  detailed information to workers and health care providers

20  describing how a grievance may be registered with the insurer.

21         (g)(d)  Grievances must be considered in a timely

22  manner and must be transmitted to appropriate decisionmakers

23  who have the authority to fully investigate the issue and take

24  corrective action.

25         (h)(e)  If a grievance is found to be valid, corrective

26  action must be taken promptly.

27         (i)(f)  All concerned parties must be notified of the

28  results of a grievance.

29         (j)(g)  The insurer must report annually, no later than

30  March 31, to the agency regarding its grievance procedure

31  activities for the prior calendar year. The report must be in

                                  28

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  a format prescribed by the agency and must contain the number

  2  of grievances filed in the past year and a summary of the

  3  subject, nature, and resolution of such grievances.

  4         (18)  The agency may suspend the authority of an

  5  insurer to offer a workers' compensation managed care

  6  arrangement or order compliance within 60 days, if it finds

  7  that:

  8         (a)  The insurer is in substantial violation of its

  9  contracts;

10         (b)  The insurer is unable to fulfill its obligations

11  under outstanding contracts entered into with its employers;

12         (c)  The insurer knowingly utilizes a provider who is

13  furnishing or has furnished health care services and who does

14  not have an existing license or other authority to practice or

15  furnish health care services in this state;

16         (d)  The insurer no longer meets the requirements for

17  the authorization as originally issued; or

18         (e)  The insurer has violated any lawful rule or order

19  of the agency or any provision of this section.

20         (f)  Injuries that require medical treatment for which

21  charges will be incurred whether or not they are reported to

22  the carrier but which do not disable the employee for more

23  than 7 days as a result of the injury may not be used by the

24  Agency for Health Care Administration in determining insurer

25  compliance with this section.

26         Section 9.  Section 440.14, Florida Statutes, is

27  amended to read:

28         440.14  Determination of pay.--

29         (1)  Except as otherwise provided in this chapter, the

30  average weekly wages of the injured employee at the time of

31  the injury shall be taken as the basis upon which to compute

                                  29

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  compensation and shall be determined, subject to the

  2  limitations of s. 440.12(2), as follows:

  3         (a)  If the injured employee has been employed

  4  full-time or part-time by the employer for at least 13

  5  consecutive weeks immediately preceding the date of the injury

  6  worked in the employment in which she or he was working at the

  7  time of the injury, whether for the same or another employer,

  8  during substantially the whole of 13 weeks immediately

  9  preceding the injury, her or his average weekly wage shall be

10  one-thirteenth of the total amount of wages earned in such

11  employment during the 13 weeks.  As used in this paragraph,

12  the term "substantially the whole of 13 weeks" shall be deemed

13  to mean and refer to a constructive period of 13 weeks as a

14  whole, which shall be defined as a consecutive period of 91

15  days, and the term "during substantially the whole of 13

16  weeks" shall be deemed to mean during not less than 90 percent

17  of the total customary full-time hours of employment within

18  such period considered as a whole.

19         (b)  If the injured employee has not worked in such

20  employment during substantially the whole of 13 consecutive

21  weeks immediately preceding the injury, the wages of a similar

22  employee in the same employment who has worked substantially

23  the whole of such 13 consecutive weeks shall be used in making

24  the determination under the preceding paragraph.

25         (c)  If an employee is a seasonal worker and the

26  foregoing method cannot be fairly applied in determining the

27  average weekly wage, then the employee may use, instead of the

28  13 weeks immediately preceding the injury, the calendar year

29  or the 52 weeks immediately preceding the injury. The employee

30  will have the burden of proving that this method will be more

31  reasonable and fairer than the method set forth in paragraphs

                                  30

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  (a) and (b) and, further, must document prior earnings with

  2  W-2 forms, written wage statements, or income tax returns. The

  3  employer shall have 30 days following the receipt of this

  4  written proof to adjust the compensation rate, including the

  5  making of any additional payment due for prior weekly

  6  payments, based on the lower rate compensation.

  7         (d)  If any of the foregoing methods cannot reasonably

  8  and fairly be applied, the full-time weekly wages of the

  9  injured employee shall be used, except as otherwise provided

10  in paragraph (e) or paragraph (f).

11         (e)  If it is established that the injured employee was

12  under 22 years of age when injured and that under normal

13  conditions her or his wages should be expected to increase

14  during the period of disability, the fact may be considered in

15  arriving at her or his average weekly wages.

16         (f)  If it established that the injured employee was a

17  part-time worker at the time of the injury, that she or he had

18  adopted part-time employment as a customary practice, and that

19  under normal working conditions she or he probably would have

20  remained a part-time worker during the period of disability,

21  these factors shall be considered in arriving at her or his

22  average weekly wages.  For the purpose of this paragraph, the

23  term "part-time worker" means an individual who customarily

24  works less than the full-time hours or full-time workweek of a

25  similar employee in the same employment.

26         (f)(g)  If compensation is due for a fractional part of

27  the week, the compensation for such fractional part shall be

28  determined by dividing the weekly compensation rate by the

29  number of days employed per week to compute the amount due for

30  each day.

31

                                  31

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (g)  Any issue relating to the average weekly wage is

  2  not subject to attorney's fees. If an attorney is necessary,

  3  the employee shall be represented by an attorney as set forth

  4  in s. 440.191(1)(e).

  5         (2)  If the employee's employment has been irregular or

  6  if the employee has lost time from work immediately preceding

  7  the injury because of illness, bad weather, or another cause

  8  beyond the control of the employee, the actual wages earned

  9  must be used.

10         (3)(2)  If, during the period of disability, the

11  employer continues to provide consideration, including board,

12  rent, housing, or lodging, the value of such consideration

13  shall be deducted when calculating the average weekly wage of

14  the employee so long as these benefits continue to be

15  provided.

16         (4)(3)  The division shall establish by rule a form

17  which shall contain a simplified checklist of those items

18  which may be included as "wage" for determining the average

19  weekly wage.

20         (5)(4)  Upon termination of the employee or upon

21  termination of the payment of fringe benefits of any employee

22  who is collecting indemnity benefits pursuant to s. 440.15(2)

23  or (3)(b), the employer shall within 7 days of such

24  termination file a corrected 13-week wage statement reflecting

25  the wages paid and the fringe benefits that had been paid to

26  the injured employee as defined in s. 440.02(24).

27         Section 10.  Paragraphs (b) and (d) of subsection (1),

28  paragraph (a) of subsection (2), subsections (3) and (4), and

29  paragraph (a) of subsection (10) of section 440.15, Florida

30  Statutes, are amended to read:

31

                                  32

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         440.15  Compensation for disability.--Compensation for

  2  disability shall be paid to the employee, subject to the

  3  limits provided in s. 440.12(2), as follows:

  4         (1)  PERMANENT TOTAL DISABILITY.--

  5         (b)  Only a catastrophic injury as defined in s. 440.02

  6  shall, in the absence of conclusive proof of a substantial

  7  earning capacity, constitute permanent total disability. Only

  8  claimants with catastrophic injuries are eligible for

  9  permanent total benefits. Any other compensable injury must be

10  of a nature and severity that prevents the employee from being

11  able to perform his or her prior work or any work commonly

12  available within the national economy. If the employee is

13  engaged in or is physically capable of engaging in any gainful

14  employment, including sheltered employment, the employee is

15  not entitled to permanent total disability. The burden is on

16  the employee to establish that he or she is unable to perform,

17  due to physical limitations, even part-time sedentary work

18  available within a 100-mile radius of the employee's

19  residence. In no other case may permanent total disability be

20  awarded.

21         (d)

22         1.  If an employee who is being paid compensation for

23  permanent total disability becomes rehabilitated to the extent

24  that she or he establishes an earning capacity, the employee

25  shall be paid, instead of the compensation provided in

26  paragraph (a), benefits pursuant to subsection (3). The

27  division shall adopt rules to enable a permanently and totally

28  disabled employee who may have reestablished an earning

29  capacity to undertake a trial period of reemployment without

30  prejudicing her or his return to permanent total status in the

31

                                  33

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  case that such employee is unable to sustain an earning

  2  capacity.

  3         2.  Entitlement to permanent total disability payments

  4  ceases at age 70.

  5         (2)  TEMPORARY TOTAL DISABILITY.--

  6         (a)  In case of disability total in character but

  7  temporary in quality, 66 2/3 percent of the average weekly

  8  wages shall be paid to the employee during the continuance

  9  thereof, not to exceed 200 104 weeks, including temporary

10  partial wage-loss benefits, except as provided in this

11  subsection, s. 440.12(1), and s. 440.14(3). Once the employee

12  reaches the maximum number of weeks allowed, or the employee

13  reaches the date of maximum medical improvement, whichever

14  occurs earlier, temporary disability benefits shall cease and

15  the injured worker's permanent impairment shall be determined.

16         (3)  PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.--

17         (a)  Impairment benefits.--

18         1.  In case of permanent impairment due to amputation;

19  loss of 80 percent or more of the vision in either eye, after

20  correction; or serious facial or head disfigurement resulting

21  from an injury other than an injury entitling the injured

22  worker to permanent total disability benefits pursuant to

23  subsection (1), there shall be paid to the injured worker the

24  following:

25         a.  Two hundred and fifty dollars for each percent of

26  permanent impairment of the body as a whole, from 1 percent

27  through 10 percent; and

28         b.  Five hundred dollars for each percent of permanent

29  impairment of the body as a whole for that portion in excess

30  of 10 percent.

31

                                  34

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         2.1.  Once the employee has reached the date of maximum

  2  medical improvement, impairment benefits are due and payable

  3  within 20 days after the carrier has knowledge of the

  4  impairment.

  5         3.2.  The three-member panel, in cooperation with the

  6  division, shall establish and use a uniform permanent

  7  impairment rating schedule. This schedule must be based on

  8  medically or scientifically demonstrable findings as well as

  9  the systems and criteria set forth in the American Medical

10  Association's Guides to the Evaluation of Permanent

11  Impairment; the Snellen Charts, published by American Medical

12  Association Committee for Eye Injuries; and the Minnesota

13  Department of Labor and Industry Disability Schedules. The

14  schedule should be based upon objective findings. The schedule

15  shall be more comprehensive than the AMA Guides to the

16  Evaluation of Permanent Impairment and shall expand the areas

17  already addressed and address additional areas not currently

18  contained in the guides. On August 1, 1979, and pending the

19  adoption, by rule, of a permanent schedule, Guides to the

20  Evaluation of Permanent Impairment, copyright 1977, 1971,

21  1988, by the American Medical Association, shall be the

22  temporary schedule and shall be used for the purposes hereof.

23  For injuries after July 1, 1990, pending the adoption by

24  division rule of a uniform disability rating schedule, the

25  Minnesota Department of Labor and Industry Disability Schedule

26  shall be used unless that schedule does not address an injury.

27  In such case, the Guides to the Evaluation of Permanent

28  Impairment by the American Medical Association shall be used.

29  Determination of permanent impairment under this schedule must

30  be made by a physician licensed under chapter 458, a doctor of

31  osteopathic medicine licensed under chapters 458 and 459, a

                                  35

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  chiropractor licensed under chapter 460, a podiatrist licensed

  2  under chapter 461, an optometrist licensed under chapter 463,

  3  or a dentist licensed under chapter 466, as appropriate

  4  considering the nature of the injury. No other persons are

  5  authorized to render opinions regarding the existence of or

  6  the extent of permanent impairment.

  7         3.  All impairment income benefits shall be based on an

  8  impairment rating using the impairment schedule referred to in

  9  subparagraph 2. Impairment income benefits are paid weekly at

10  the rate of 50 percent of the employee's average weekly

11  temporary total disability benefit not to exceed the maximum

12  weekly benefit under s. 440.12. An employee's entitlement to

13  impairment income benefits begins the day after the employee

14  reaches maximum medical improvement or the expiration of

15  temporary benefits, whichever occurs earlier, and continues

16  until the earlier of:

17         a.  The expiration of a period computed at the rate of

18  3 weeks for each percentage point of impairment; or

19         b.  The death of the employee.

20         4.  After the employee has been certified by a doctor

21  as having reached maximum medical improvement or 6 weeks

22  before the expiration of temporary benefits, whichever occurs

23  earlier, the certifying doctor shall evaluate the condition of

24  the employee and assign an impairment rating, using the

25  impairment schedule referred to in subparagraph 2.

26  Compensation is not payable for the mental, psychological, or

27  emotional injury arising out of depression from being out of

28  work. If the certification and evaluation are performed by a

29  doctor other than the employee's treating doctor, the

30  certification and evaluation must be submitted to the treating

31  doctor, and the treating doctor must indicate agreement or

                                  36

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  disagreement with the certification and evaluation. The

  2  certifying doctor shall issue a written report to the

  3  division, the employee, and the carrier certifying that

  4  maximum medical improvement has been reached, stating the

  5  impairment rating, and providing any other information

  6  required by the division. If the employee has not been

  7  certified as having reached maximum medical improvement before

  8  the expiration of 102 weeks after the date temporary total

  9  disability benefits begin to accrue, the carrier shall notify

10  the treating doctor of the requirements of this section.

11         5.  The carrier shall pay the employee impairment

12  income benefits for a period based on the impairment rating.

13         (b)  Supplemental benefits.--

14         1.  All supplemental benefits must be paid in

15  accordance with this subsection. An employee is entitled to

16  supplemental benefits as provided in this paragraph as of the

17  expiration of the impairment period, if:

18         a.  The employee has an impairment rating from the

19  compensable injury of 20 percent or more as determined

20  pursuant to this chapter;

21         b.  The employee has not returned to work or has

22  returned to work earning less than 80 percent of the

23  employee's average weekly wage as a direct result of the

24  employee's impairment; and

25         c.  The employee has in good faith attempted to obtain

26  employment commensurate with the employee's ability to work.

27         2.  If an employee is not entitled to supplemental

28  benefits at the time of payment of the final weekly impairment

29  income benefit because the employee is earning at least 80

30  percent of the employee's average weekly wage, the employee

31  may become entitled to supplemental benefits at any time

                                  37

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  within 1 year after the impairment income benefit period ends

  2  if:

  3         a.  The employee earns wages that are less than 80

  4  percent of the employee's average weekly wage for a period of

  5  at least 90 days;

  6         b.  The employee meets the other requirements of

  7  subparagraph 1.; and

  8         c.  The employee's decrease in earnings is a direct

  9  result of the employee's impairment from the compensable

10  injury.

11         3.  If an employee earns wages that are at least 80

12  percent of the employee's average weekly wage for a period of

13  at least 90 days during which the employee is receiving

14  supplemental benefits, the employee ceases to be entitled to

15  supplemental benefits for the filing period. Supplemental

16  benefits that have been terminated shall be reinstated when

17  the employee satisfies the conditions enumerated in

18  subparagraph 2. and files the statement required under

19  subparagraph 5. Notwithstanding any other provision, if an

20  employee is not entitled to supplemental benefits for 12

21  consecutive months, the employee ceases to be entitled to any

22  additional income benefits for the compensable injury. If the

23  employee is discharged within 12 months after losing

24  entitlement under this subsection, benefits may be reinstated

25  if the employee was discharged at that time with the intent to

26  deprive the employee of supplemental benefits.

27         5.4.  During the period that wage-loss impairment

28  income benefits or supplemental income benefits are being

29  paid, the carrier has the affirmative duty to determine at

30  least annually whether any extended unemployment or

31  underemployment is a direct result of the employee's

                                  38

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  impairment. To accomplish this purpose, the division may

  2  require periodic reports from the employee and the carrier,

  3  and it may, at the carrier's expense, require any physical or

  4  other examinations, vocational assessments, or other tests or

  5  diagnoses necessary to verify that the carrier is performing

  6  its duty. Not more than once in each 12 calendar months, the

  7  employee and the carrier may each request that the division

  8  review the status of the employee and determine whether the

  9  carrier has performed its duty with respect to whether the

10  employee's unemployment or underemployment is a direct result

11  of impairment from the compensable injury.

12         (b)  Wage-loss benefits.--

13         1.  Each injured worker who suffers a permanent

14  impairment, which permanent impairment is determined, pursuant

15  to the schedule adopted in accordance with subparagraph (a)3.,

16  not to be based solely on subjective complaints, and which

17  results in one or more work-related physical restrictions that

18  are directly attributable to the injury, may be entitled to

19  wage-loss benefits under this subsection if the permanent

20  impairment results in a work-related physical restriction that

21  affects the employee's ability to perform the activities of

22  his or her usual or other appropriate employment. The benefits

23  must be based on actual wage loss and are not subject to the

24  minimum compensation rate set forth in s. 440.12(2). Subject

25  to the maximum compensation rate as set forth in s. 440.12(2),

26  the wage-loss benefits must be equal to 80 percent of the

27  difference between 80 percent of the employee's average weekly

28  wage and the salary, wages, and other remuneration the

29  employee is able to earn after reaching maximum medical

30  improvement, as compared weekly; however, the weekly wage-loss

31  benefits may not exceed an amount equal to 66 2/3 percent of

                                  39

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  the employee's average weekly wage at the time of injury. In

  2  determining the amount the employee is able to earn in any

  3  month after injury, commissions and similar irregular payments

  4  must be allocated first to the week in which they are

  5  received, in an amount that when added to other earnings for

  6  that week does not exceed the employee's average weekly wage,

  7  and the balance in the same manner to the subsequent weeks

  8  until fully allocated, but not to exceed 52 weeks from the

  9  week that the commission or a similar irregular payment was

10  received.

11         2.  The amount determined to be the salary, wages, and

12  other remunerations the employee is able to earn after

13  reaching the date of maximum medical improvement may in no

14  case be less than the sum actually being earned by the

15  employee, including earnings from sheltered employment. In the

16  case of an employee who has not voluntarily limited his or her

17  income or who has not failed to accept employment commensurate

18  with the employee's abilities or who was not terminated from

19  employment due to the employee's own misconduct, and who has

20  made a good-faith attempt to find employment where employment

21  actually exists after attaining maximum medical improvement,

22  but who remains unemployed, it is presumed that the salary,

23  wages, and other remuneration the employee is able to earn was

24  zero for each week that the employee made a good-faith attempt

25  to find employment within the employee's physical and

26  vocational capabilities. Wage-loss forms and job-search

27  reports are to be mailed to the employer, carrier, or

28  servicing agent within 14 days after the time benefits are

29  due. Failure of an employee to timely request benefits and

30  file the appropriate job-search forms showing that the

31  employee has looked for a minimum of five jobs where

                                  40

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  employment was actually available in each biweekly period

  2  after the employee has had knowledge that a job search is

  3  required, whether the employee has been advised by the

  4  employer, the carrier, the servicing agent, or the employee's

  5  attorney, results in benefits not being payable during the

  6  time that the employee fails to timely file a request for

  7  wage-loss forms and job-search reports. However, beginning the

  8  13th week after the employee has attained maximum medical

  9  improvement, if an employee does not obtain and maintain

10  employment, the employer may show that the salary, wages, and

11  other remuneration the employee is able to earn is greater

12  than zero by proving the existence of actual openings for jobs

13  within a reasonable geographical area which the employee is

14  physically and vocationally capable of performing, in which

15  case the amount the employee is able to earn may be deemed to

16  be the amount that the employee could earn in such jobs. The

17  amount so deemed must be applied against the next 3 biweekly

18  payments.

19         3.  An injured worker requesting wage-loss benefits for

20  any period during which the injured worker was unemployed

21  shall have a duty to make reasonable and good-faith efforts to

22  obtain suitable gainful employment where employment actually

23  exists on a consistent basis.  As used in this subsection, the

24  term "suitable gainful employment" means employment that is

25  reasonably attainable in light of the individual's age,

26  education, personal aptitudes, previous vocational experience,

27  and physical abilities. For any period, the employer may

28  require the injured worker's request for wage-loss benefits to

29  include verification of the injured worker's efforts to obtain

30  suitable gainful employment, which verification must be made

31  on forms prescribed by the division. In determining whether

                                  41

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  the injured worker has made reasonable and good-faith efforts

  2  to obtain suitable gainful employment, the judge of

  3  compensation claims shall consider the availability of

  4  suitable employment in the area of the injured worker's

  5  residence and the effect of the injured worker's physical

  6  impairment upon the injured worker's ability to conduct

  7  job-search activities. Whenever a wage-loss benefit may be

  8  payable, the burden is on the employee to establish that any

  9  wage-loss claimed is the result of the compensable injury. It

10  is also the burden of the employee to show that the inability

11  to obtain employment or to earn as much as was earned at the

12  time of the industrial accident is due to physical limitation

13  related to the accident and not because of economic conditions

14  or the unavailability of employment or the employee's own

15  misconduct. Unless otherwise provided under this section, an

16  injured worker requesting wage-loss benefits for any period

17  during which he or she is unemployed is not entitled to

18  benefits if the injured worker failed or refused to make

19  reasonable and good-faith efforts to obtain suitable gainful

20  employment during the period.

21         4.  The right to wage-loss benefits terminates upon the

22  occurrence of the earliest of the following:

23         a.  As of the end of a 1-year period commencing at any

24  time subsequent to the month when the injured employee reaches

25  the date of maximum medical improvement, unless during the

26  1-year period wage-loss benefits were payable during at least

27  3 consecutive months. This limitation period is not tolled or

28  extended by the incarceration of the employee or by virtue of

29  the employee becoming an inmate of a penal institution.

30

31

                                  42

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         b.  For injuries occurring on or before July 1, 1980,

  2  350 weeks after the injured employee reaches the date of

  3  maximum medical improvement.

  4         c.  For injuries occurring after July 1, 1980, but

  5  before July 1, 1990, 525 weeks after the injured employee

  6  reaches maximum medical improvement.

  7         d.  For injuries occurring after June 30, 1997, the

  8  employee's eligibility for wage-loss benefits must be

  9  determined according to the following schedule:

10         (I)  Twenty-six weeks of eligibility for permanent

11  impairment ratings up to and including 3 percent;

12         (II)  Fifty-two weeks of eligibility for permanent

13  impairment ratings greater than 3 and up to and including 6

14  percent;

15         (III)  Seventy-eight weeks of eligibility for permanent

16  impairment ratings greater than 6 and up to and including 9

17  percent;

18         (IV)  One hundred and four weeks of eligibility for

19  permanent impairment ratings greater than 9 and up to and

20  including 12 percent; and

21         (V)  One hundred and twenty weeks of eligibility for

22  permanent impairment ratings greater than 12 percent and up to

23  and including 15 percent; 140 weeks of eligibility for

24  permanent impairment ratings greater than 15 percent and up to

25  and including 18 percent; 180 weeks of eligibility for

26  permanent impairment ratings greater than 18 and up to and

27  including 21 percent; 190 weeks of eligibility for permanent

28  impairment ratings greater than 21 percent and up to and

29  including 24 percent; and 200 weeks of eligibility for

30  permanent impairment ratings greater than 24 percent.

31

                                  43

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         5.  Notwithstanding subparagraph 4., the right to

  2  wage-loss benefits terminates if there are three occurrences

  3  of any of the following incidents:

  4         a.  The employee voluntarily terminates his employment

  5  for any reason unrelated to his compensable injury.

  6         b.  The employee refuses an offer of suitable or

  7  reasonable employment within his restrictions and abilities.

  8         c.  The employee is terminated from employment due to

  9  his own misconduct as defined in s. 440.02(16).

10         d.  The employee voluntarily limits his income.

11

12  Each of the three occurrences must be in a different biweekly

13  period. Additionally, for each of the above occurrences, the

14  employee may be disqualified from receiving wage-loss benefits

15  for 3 biweekly periods.

16         6.  The right to wage-loss benefits terminates if an

17  employee is convicted of conduct punishable under s. 775.082

18  or s. 775.083 or is subjected to imprisonment under chapter

19  316 which directly affects the employee's ability to perform

20  the activities of his usual or other appropriate employment.

21  For purposes of this subparagraph, the term "convicted" means

22  an adjudication of guilt by a court of competent jurisdiction;

23  a plea of guilty or of nolo contendere; or a jury verdict of

24  guilty when adjudication of guilt is withheld and the accused

25  is placed on probation.

26         7.  The right to wage-loss share terminates at age 70.

27         8.  Wage-loss benefits are not payable to illegal

28  aliens or to an employee who does not have the documents

29  required to work in the United States.

30         9.  If an employee is entitled to both wage-loss

31  benefits and social security retirement benefits under 42

                                  44

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  U.S.C. ss. 402 and 405, the social security retirement

  2  benefits and social security disability benefits under 42

  3  U.S.C. s. 423 are primary and the wage-loss benefits are

  4  supplemental only. The sum of the two benefits may not exceed

  5  the amount of wage-loss benefits which would otherwise be

  6  payable. For the purpose of termination of wage-loss benefits

  7  pursuant to sub-subparagraph 4.a., the term "payable" includes

  8  payment of social security retirement benefits in lieu of

  9  wage-loss benefits.

10         5.  After the initial determination of supplemental

11  benefits, the employee must file a statement with the carrier

12  stating that the employee has earned less than 80 percent of

13  the employee's average weekly wage as a direct result of the

14  employee's impairment, stating the amount of wages the

15  employee earned in the filing period, and stating that the

16  employee has in good faith sought employment commensurate with

17  the employee's ability to work. The statement must be filed

18  quarterly on a form and in the manner prescribed by the

19  division. The division may modify the filing period as

20  appropriate to an individual case. Failure to file a statement

21  relieves the carrier of liability for supplemental benefits

22  for the period during which a statement is not filed.

23         6.  The carrier shall begin payment of supplemental

24  benefits not later than the seventh day after the expiration

25  date of the impairment income benefit period and shall

26  continue to timely pay those benefits. The carrier may request

27  a mediation conference for the purpose of contesting the

28  employee's entitlement to or the amount of supplemental income

29  benefits.

30         7.  Supplemental benefits are calculated quarterly and

31  paid monthly. For purposes of calculating supplemental

                                  45

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  benefits, 80 percent of the employee's average weekly wage and

  2  the average wages the employee has earned per week are

  3  compared quarterly. For purposes of this paragraph, if the

  4  employee is offered a bona fide position of employment that

  5  the employee is capable of performing, given the physical

  6  condition of the employee and the geographic accessibility of

  7  the position, the employee's weekly wages are considered

  8  equivalent to the weekly wages for the position offered to the

  9  employee.

10         8.  Supplemental benefits are payable at the rate of 80

11  percent of the difference between 80 percent of the employee's

12  average weekly wage determined pursuant to s. 440.14 and the

13  weekly wages the employee has earned during the reporting

14  period, not to exceed the maximum weekly income benefit under

15  s. 440.12.

16         (c)  Duration of temporary total, temporary partial

17  wage-loss, and wage-loss impairment and supplemental income

18  benefits.--The employee's eligibility for temporary total,

19  temporary partial wage-loss, and wage-loss benefits,

20  impairment income benefits, and supplemental benefits

21  terminates on the expiration of 400 401 weeks after the date

22  of injury, except as provided in subsection (7).

23         (4)  TEMPORARY PARTIAL DISABILITY.--

24         (a)  In case of temporary partial disability, benefits

25  must be based on actual wage loss and are not subject to the

26  minimum compensation rate set forth in s. 440.12(2). The

27  compensation must be equal to 80 percent of the difference

28  between 80 percent of the employee's average weekly wage and

29  the salary, wages, and other remuneration the employee is able

30  to earn, as compared weekly; however, the weekly wage-loss

31  benefits may not exceed an amount equal to 66 2/3 percent of

                                  46

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  the employee's average weekly wage at the time of injury. The

  2  amount determined to be the salary, wages, and other

  3  remuneration the employee is able to earn may in no case be

  4  less than the sum actually being earned by the employee,

  5  including earnings from sheltered employment.

  6         (b)  Whenever a temporary partial wage-loss benefit as

  7  set forth in paragraph (a) may be payable, the burden is on

  8  the employee to establish that any wage loss claimed is the

  9  result of the compensable injury. It is also the burden of the

10  employee to show that the inability to obtain employment or to

11  earn as much as earned at the time of the industrial accident

12  is due to physical limitation related to the accident and not

13  because of economic conditions or the unavailability of

14  employment or the employee's own misconduct. Wage-loss forms

15  and job-search reports are to be mailed to the employer,

16  carrier, or servicing agent within 14 days after these

17  benefits are due. Failure of an employee to timely request

18  benefits and file the appropriate job-search forms showing

19  that the employee looked for a minimum of five jobs where

20  employment was actually available in each biweekly period

21  after the employee has knowledge that a job search is

22  required, whether the employee has been advised by the

23  employer, the carrier, the servicing agent, or the employee's

24  attorney, results in benefits not being payable during the

25  time during which the employee fails to timely file his

26  request for wage-loss forms and job-search reports. If the

27  employee voluntarily limits the employee's income, or fails to

28  accept employment commensurate with the employee's abilities,

29  or is terminated from employment due to the employee's own

30  misconduct, it is presumed, in the absence of evidence to the

31  contrary, that the salary, wages, and other remuneration that

                                  47

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  the employee was able to earn for such period that the

  2  employee voluntarily limited the employee's income, or failed

  3  to accept employment commensurate with the employee's

  4  abilities, or was terminated from employment due to the

  5  employee's own misconduct is the amount that would have been

  6  earned if the employee had not limited the employee's income

  7  or failed to accept appropriate employment or had not been

  8  terminated from employment due to the employee's own

  9  misconduct. That amount must be applied against the next 3

10  biweekly payments. In the case of an employee who has not

11  voluntarily limited the employee's income, or who has not

12  failed to accept employment commensurate with the employee's

13  abilities, or who was not terminated from employment due to

14  the employee's own misconduct and who has made a good-faith

15  attempt to find employment where employment exists but remains

16  unemployed, it is presumed that the salary, wages, and other

17  remuneration the employee is able to earn was zero for each

18  week that the employee made a good-faith attempt to find

19  employment within the employee's physical and vocational

20  capabilities. However, beginning the 13th week after the

21  employee has received the first payment of a temporary partial

22  wage-loss benefit, if the employee does not obtain or maintain

23  employment, the employer or carrier may show that the salary,

24  wages, and other remuneration the employee is able to earn is

25  greater than zero by proving the existence of actual job

26  openings within a reasonable geographical area which the

27  employee is physically and vocationally capable of performing,

28  in which case the amount the employee is able to earn may be

29  deemed to be the amount the employee could earn in such jobs.

30  The amount so deemed must be applied against the next 3

31  biweekly payments.

                                  48

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (c)  Temporary partial wage-loss benefits are not

  2  payable to illegal aliens or to an employee who does not have

  3  the required documents for work in the United States.

  4         (d)  Temporary partial wage-loss benefits together with

  5  temporary total disability benefits must be paid during the

  6  continuance of such disability, not to exceed a period of 200

  7  weeks. Once the employee reaches the maximum number of weeks,

  8  benefits cease and the injured worker's permanent impairment

  9  must be determined.

10         (a)  In case of temporary partial disability,

11  compensation shall be equal to 80 percent of the difference

12  between 80 percent of the employee's average weekly wage and

13  the salary, wages, and other remuneration the employee is able

14  to earn, as compared weekly; however, the weekly benefits may

15  not exceed an amount equal to 66 2/3  percent of the

16  employee's average weekly wage at the time of injury. In order

17  to simplify the comparison of the preinjury average weekly

18  wage with the salary, wages, and other remuneration the

19  employee is able to earn, the division may by rule provide for

20  the modification of the weekly comparison so as to coincide as

21  closely as possible with the injured worker's pay periods. The

22  amount determined to be the salary, wages, and other

23  remuneration the employee is able to earn shall in no case be

24  less than the sum actually being earned by the employee,

25  including earnings from sheltered employment.

26         (b)  Such benefits shall be paid during the continuance

27  of such disability, not to exceed a period of 104 weeks, as

28  provided by this subsection and subsection (2). Once the

29  injured employee reaches the maximum number of weeks,

30  temporary disability benefits cease and the injured worker's

31  permanent impairment must be determined.

                                  49

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (10)  EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER

  2  AND FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE

  3  ACT.--

  4         (a)  Weekly compensation benefits payable under this

  5  chapter for disability resulting from injuries to an employee

  6  who becomes eligible for benefits under 42 U.S.C. s. 423 shall

  7  be reduced to an amount whereby the sum of such compensation

  8  benefits payable under this chapter and such total benefits

  9  otherwise payable for such period to the employee and her or

10  his dependents, had such employee not been entitled to

11  benefits under this chapter, under 42 U.S.C. ss. 402 or and

12  423, does not exceed 80 percent of the employee's average

13  weekly wage, including the additional average weekly

14  compensation benefits allowed under s. 440.15(1)(f). However,

15  this provision shall not operate to reduce an injured worker's

16  benefits under this chapter to a greater extent than such

17  benefits would have otherwise been reduced under 42 U.S.C. s.

18  424(a). This reduction of compensation benefits is not

19  applicable to any compensation benefits payable for any week

20  subsequent to the week in which the injured worker reaches the

21  age of 62 years.

22         Section 11.  Paragraph (b) of subsection (2) of section

23  440.191, Florida Statutes, is amended to read:

24         440.191  Employee Assistance and Ombudsman Office.--

25         (2)

26         (b)  If at any time the employer or its carrier fails

27  to provide benefits to which the employee believes she or he

28  is entitled, the employee shall contact the office to request

29  assistance in resolving the dispute. The employee shall

30  simultaneously notify the employer, its carrier, and the

31  carrier's attorney, if known, in writing of the benefits to

                                  50

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  which the employee believes he or she is entitled and for

  2  which he or she is requesting the assistance of the office.

  3  The office shall investigate the dispute and shall attempt to

  4  facilitate an agreement between the employee and the employer

  5  or carrier. The employee, the employer, and the carrier shall

  6  cooperate with the office and shall timely provide the office

  7  with any documents or other information that it may require in

  8  connection with its efforts under this section.

  9         Section 12.  Subsection (8) of section 440.192, Florida

10  Statutes, is amended to read:

11         440.192  Procedure for resolving benefit disputes.--

12         (8)  Within 14 days after receipt of a petition for

13  benefits by certified mail, the carrier must either pay the

14  requested benefits without prejudice to its right to deny

15  within 120 days from receipt of the petition or file a notice

16  of intent denial with the division. The carrier must list all

17  benefits requested but not paid and explain its justification

18  for nonpayment in the notice of intent denial. A carrier that

19  does not deny compensability in accordance with s. 440.20(4)

20  is deemed to have accepted the employee's injuries as

21  compensable, unless it can establish material facts relevant

22  to the issue of compensability that could not have been

23  discovered through reasonable investigation within the 120-day

24  period. The carrier shall provide copies of the notice to the

25  filing party, employer, and claimant by certified mail.

26         Section 13.  Section 440.20, Florida Statutes, is

27  amended to read:

28         440.20  Time for payment of compensation; penalties for

29  late payment.--

30         (1)(a)  Unless it denies compensability or entitlement

31  to benefits, the carrier shall pay compensation directly to

                                  51

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  the employee as required by ss. 440.14, 440.15, and 440.16, in

  2  accordance with the obligations set forth in such sections.

  3         (b)  Notwithstanding any other provision of this

  4  chapter, all insurance carriers, group self-insurance funds,

  5  assessable mutual insurers, and the Joint Underwriting

  6  Association authorized to write workers' compensation

  7  insurance in this state shall make available a notice in

  8  writing to the employer the fact that a state-authorized

  9  deductible plan is available. Under this plan, an employer may

10  pay, for each injury for which an employee files a claim under

11  this chapter as a deductible, up to the first $2,500 of the

12  total amount payable under compensable claims related to such

13  injury. An employer shall not be reimbursed for any amount

14  paid under this paragraph; however, the reporting requirements

15  of the employer, relating to injuries required under any

16  provision under this chapter, are not altered or alleviated.

17  The rate base of any workers' compensation insurance offered

18  pursuant to this chapter shall include the deductible

19  provision authorized by this paragraph. Any amounts paid by an

20  employer pursuant to this paragraph shall not apply in any way

21  to such employer's experience rating for injury.

22         (2)  The carrier must pay the first installment of

23  compensation or deny compensability no later than the 14th day

24  after the employer receives notice of the injury or death. The

25  carrier shall thereafter pay compensation in biweekly

26  installments or as otherwise provided in s. 440.15, unless the

27  judge of compensation claims determines or the parties agree

28  that an alternate installment schedule is in the best

29  interests of the employee.

30         (3)  Upon making payment, or upon suspension or

31  cessation of payment for any reason, the carrier shall

                                  52

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  immediately notify the division that it has commenced,

  2  suspended, or ceased payment of compensation. The division may

  3  require such notification in any format it deems necessary to

  4  obtain accurate and timely reporting.

  5         (4)  If the carrier is uncertain of its obligation to

  6  provide benefits or compensation, it may initiate payment

  7  without prejudice and without admitting liability. The carrier

  8  shall immediately and in good faith commence investigation of

  9  the employee's entitlement to benefits under this chapter and

10  shall admit or deny compensability within 120 days after the

11  initial provision of compensation or benefits. Upon

12  commencement of payment, the carrier shall provide written

13  notice to the employee that it has elected to pay all or part

14  of the claim pending further investigation, and that it will

15  advise the employee of claim acceptance or denial within 120

16  days. A carrier that fails to deny compensability within 120

17  days after the initial provision of benefits or payment of

18  compensation waives the right to deny compensability, unless

19  the carrier can establish material facts relevant to the issue

20  of compensability that it could not have discovered through

21  reasonable investigation within the 120-day period.

22         (4)(5)  If the employer has advanced compensation

23  payments or benefits to the employee, the carrier shall

24  reimburse the employer for the advanced payments if the

25  employee is entitled to compensation and benefits pursuant to

26  this chapter. The carrier may deduct such reimbursements from

27  the employee's compensation installments or, if applicable,

28  from payments to the employee ordered by a judge of

29  compensation claims.

30         (5)(6)  If any installment of compensation for death or

31  dependency benefits, disability, permanent impairment, or wage

                                  53

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  loss payable without an award is not paid within 14 7 days

  2  after it becomes due, as provided in subsection (2) or,

  3  subsection (3), or subsection (4), there shall be added to

  4  such unpaid installment a punitive penalty of an amount equal

  5  to 20 percent of the unpaid installment or $5, which shall be

  6  paid at the same time as, but in addition to, such installment

  7  of compensation, unless notice is filed under subsection (4)

  8  or unless such nonpayment results from conditions over which

  9  the employer or carrier had no control. When any installment

10  of compensation payable without an award has not been paid

11  within 14 7 days after it became due and the claimant

12  concludes the prosecution of the claim before a judge of

13  compensation claims without having specifically claimed

14  additional compensation in the nature of a penalty under this

15  section, the claimant will be deemed to have acknowledged

16  that, owing to conditions over which the employer or carrier

17  had no control, such installment could not be paid within the

18  period prescribed for payment and to have waived the right to

19  claim such penalty. However, during the course of a hearing,

20  the judge of compensation claims shall on her or his own

21  motion raise the question of whether such penalty should be

22  awarded or excused. The division may assess without a hearing

23  the punitive penalty against either the employer or the

24  insurance carrier, depending upon who was at fault in causing

25  the delay. The insurance policy cannot provide that this sum

26  will be paid by the carrier if the division or the judge of

27  compensation claims determines that the punitive penalty

28  should be made by the employer rather than the carrier. Any

29  additional installment of compensation paid by the carrier

30  pursuant to this section shall be paid directly to the

31  employee.

                                  54

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (6)(7)  If any compensation, payable under the terms of

  2  an award, is not paid within 7 days after it becomes due,

  3  there shall be added to such unpaid compensation an amount

  4  equal to 20 percent thereof, which shall be paid at the same

  5  time as, but in addition to, such compensation, unless review

  6  of the compensation order making such award is had as provided

  7  in s. 440.25.

  8         (7)(8)  In addition to any other penalties provided by

  9  this chapter for late payment, if any installment of

10  compensation is not paid when it becomes due, the employer,

11  carrier, or servicing agent shall pay interest thereon at the

12  rate of 12 percent per year from the date the installment

13  becomes due until it is paid, whether such installment is

14  payable without an order or under the terms of an order. The

15  interest payment shall be the greater of the amount of

16  interest due or $5.

17         (a)  Within 30 days after final payment of compensation

18  has been made, the employer, carrier, or servicing agent shall

19  send to the division a notice, in accordance with a form

20  prescribed by the division, stating that such final payment

21  has been made and stating the total amount of compensation

22  paid, the name of the employee and of any other person to whom

23  compensation has been paid, the date of the injury or death,

24  and the date to which compensation has been paid.

25         (b)  If the employer, carrier, or servicing agent fails

26  to so notify the division within such time, the division shall

27  assess against such employer, carrier, or servicing agent a

28  civil penalty in an amount not over $100.

29         (c)  In order to ensure carrier compliance under this

30  chapter, the division shall monitor the performance of

31  carriers. The division shall establish by rule minimum

                                  55

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  performance standards for carriers to ensure that a minimum of

  2  90 percent of all compensation benefits are timely paid. The

  3  division shall fine a carrier as provided in s. 440.13(11)(b)

  4  up to $50 for each late payment of compensation that is below

  5  the minimum 90 percent performance standard. This paragraph

  6  does not affect the imposition of any penalties or interest

  7  due to the claimant. If a carrier contracts with a servicing

  8  agent to fulfill its administrative responsibilities under

  9  this chapter, the payment practices of the servicing agent are

10  deemed the payment practices of the carrier for the purpose of

11  assessing penalties against the carrier.

12         (8)(9)  The division may upon its own initiative at any

13  time in a case in which payments are being made without an

14  award investigate same and shall, in any case in which the

15  right to compensation is controverted, or in which payments of

16  compensation have been stopped or suspended, upon receipt of

17  notice from any person entitled to compensation or from the

18  employer that the right to compensation is controverted or

19  that payments of compensation have been stopped or suspended,

20  make such investigations, cause such medical examination to be

21  made, or hold such hearings, and take such further action as

22  it considers will properly protect the rights of all parties.

23         (9)(10)  Whenever the division deems it advisable, it

24  may require any employer to make a deposit with the Treasurer

25  to secure the prompt and convenient payments of such

26  compensation; and payments therefrom upon any awards shall be

27  made upon order of the division or judge of compensation

28  claims.

29         (10)(11)(a)  Upon joint petition of all interested

30  parties, a lump-sum payment in exchange for the employer's or

31  carrier's release from liability for future medical expenses,

                                  56

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  as well as future payments of compensation expenses and any

  2  other benefits provided under this chapter, shall be allowed

  3  at any time in any case in which the employer or carrier has

  4  filed a written notice of denial within 120 days after the

  5  date of the injury, and the judge of compensation claims at a

  6  hearing to consider the settlement proposal finds a

  7  justiciable controversy as to legal or medical compensability

  8  of the claimed injury or the alleged accident. The employer or

  9  carrier may not pay any attorney's fees on behalf of the

10  claimant for any settlement under this section unless

11  expressly authorized elsewhere in this chapter. Upon the joint

12  petition of all interested parties and after giving due

13  consideration to the interests of all interested parties, the

14  judge of compensation claims may enter a compensation order

15  approving and authorizing the discharge of the liability of

16  the employer for compensation and remedial treatment, care,

17  and attendance, as well as rehabilitation expenses, by the

18  payment of a lump sum. Such a compensation order so entered

19  upon joint petition of all interested parties is not subject

20  to modification or review under s. 440.28. If the settlement

21  proposal together with supporting evidence is not approved by

22  the judge of compensation claims, it shall be considered void.

23  Upon approval of a lump-sum settlement under this subsection,

24  the judge of compensation claims shall send a report to the

25  Chief Judge of the amount of the settlement and a statement of

26  the nature of the controversy. The Chief Judge shall keep a

27  record of all such reports filed by each judge of compensation

28  claims and shall submit to the Legislature a summary of all

29  such reports filed under this subsection annually by September

30  15.

31

                                  57

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (b)  Upon joint petition of all interested parties, a

  2  lump-sum payment in exchange for the employer's or carrier's

  3  release from liability for future medical expenses, as well as

  4  future payments of compensation and rehabilitation expenses,

  5  and any other benefits provided under this chapter, may be

  6  allowed at any time in any case after the injured employee has

  7  attained maximum medical improvement. If the claimant is

  8  represented by counsel, final approval of the lump-sum

  9  settlement agreement, as provided for in a joint petition and

10  stipulation, must be approved by entry of an order within 7

11  days after the filing of the joint petition and stipulation

12  without a hearing, unless the judge of compensation claims

13  determines, in his or her discretion, that additional

14  testimony is needed before a settlement can be approved or

15  disapproved and so notifies the parties. In hearings conducted

16  for purposes of approving or disapproving a lump-sum

17  settlement agreement, the judge of compensation claims shall

18  allow any party to appear by telephone unless circumstances,

19  in the judge's discretion, require live testimony, and shall

20  also give consideration to other means by which the economic

21  burden on parties can be minimized. An employer or carrier may

22  not pay any attorney's fees on behalf of the claimant for any

23  settlement, unless expressly authorized elsewhere in this

24  chapter. A compensation order so entered upon joint petition

25  of all interested parties shall not be subject to modification

26  or review under s. 440.28. However, a judge of compensation

27  claims is not required to approve any award for lump-sum

28  payment when it is determined by the judge of compensation

29  claims that the payment being made is in excess of the value

30  of benefits the claimant would be entitled to under this

31  chapter. The judge of compensation claims shall make or cause

                                  58

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  to be made such investigations as she or he considers

  2  necessary, in each case in which the parties have stipulated

  3  that a proposed final settlement of liability of the employer

  4  for compensation shall not be subject to modification or

  5  review under s. 440.28, to determine whether such final

  6  disposition will definitely aid the rehabilitation of the

  7  injured worker or otherwise is clearly for the best interests

  8  of the person entitled to compensation and, in her or his

  9  discretion, may have an investigation made by the

10  Rehabilitation Section of the Division of Workers'

11  Compensation. The joint petition and the report of any

12  investigation so made will be deemed a part of the proceeding.

13  An employer shall have the right to appear at any hearing

14  pursuant to this subsection which relates to the discharge of

15  such employer's liability and to present testimony at such

16  hearing. The carrier shall provide reasonable notice to the

17  employer of the time and date of any such hearing and inform

18  the employer of her or his rights to appear and testify. When

19  the claimant is represented by counsel or when the claimant

20  and carrier or employer are represented by counsel, final

21  approval of the lump-sum settlement agreement, as provided for

22  in a joint petition and stipulation, shall be approved by

23  entry of an order within 7 days after the filing of such joint

24  petition and stipulation without a hearing, unless the judge

25  of compensation claims determines, in her or his discretion,

26  that additional testimony is needed before such settlement can

27  be approved or disapproved and so notifies the parties. The

28  probability of the death of the injured employee or other

29  person entitled to compensation before the expiration of the

30  period during which such person is entitled to compensation

31  shall, in the absence of special circumstances making such

                                  59

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  course improper, be determined in accordance with the most

  2  recent United States Life Tables published by the National

  3  Office of Vital Statistics of the United States Department of

  4  Health and Human Services. The probability of the happening of

  5  any other contingency affecting the amount or duration of the

  6  compensation, except the possibility of the remarriage of a

  7  surviving spouse, shall be disregarded. As a condition of

  8  approving a lump-sum payment to a surviving spouse, the judge

  9  of compensation claims, in the judge of compensation claims'

10  discretion, may require security which will ensure that, in

11  the event of the remarriage of such surviving spouse, any

12  unaccrued future payments so paid may be recovered or recouped

13  by the employer or carrier. Such applications shall be

14  considered and determined in accordance with s. 440.25.

15         (c)  This section applies to all claims that the

16  parties have not previously settled, regardless of the date of

17  accident.

18         (11)(12)(a)  Liability of an employer for future

19  payments of compensation may not be discharged by advance

20  payment unless prior approval of a judge of compensation

21  claims or the division has been obtained as hereinafter

22  provided. The approval shall not constitute an adjudication of

23  the claimant's percentage of disability.

24         (b)  When the claimant has reached maximum recovery and

25  returned to her or his former or equivalent employment with no

26  substantial reduction in wages, such approval of a reasonable

27  advance payment of a part of the compensation payable to the

28  claimant may be given informally by letter by a judge of

29  compensation claims, by the division director, or by the

30  administrator of claims of the division.

31

                                  60

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (c)  In the event the claimant has not returned to the

  2  same or equivalent employment with no substantial reduction in

  3  wages or has suffered a substantial loss of earning capacity

  4  or a physical impairment, actual or apparent:

  5         1.  An advance payment of compensation not in excess of

  6  $2,000 may be approved informally by letter, without hearing,

  7  by any judge of compensation claims or the Chief Judge.

  8         2.  An advance payment of compensation not in excess of

  9  $2,000 may be ordered by any judge of compensation claims

10  after giving the interested parties an opportunity for a

11  hearing thereon pursuant to not less than 10 days' notice by

12  mail, unless such notice is waived, and after giving due

13  consideration to the interests of the person entitled thereto.

14  When the parties have stipulated to an advance payment of

15  compensation not in excess of $2,000, such advance may be

16  approved by an order of a judge of compensation claims, with

17  or without hearing, or informally by letter by any such judge

18  of compensation claims, or by the division director, if such

19  advance is found to be for the best interests of the person

20  entitled thereto.

21         3.  When the parties have stipulated to an advance

22  payment in excess of $2,000, subject to the approval of the

23  division, such payment may be approved by a judge of

24  compensation claims by order if the judge finds that such

25  advance payment is for the best interests of the person

26  entitled thereto and is reasonable under the circumstances of

27  the particular case. The judge of compensation claims shall

28  make or cause to be made such investigations as she or he

29  considers necessary concerning the stipulation and, in her or

30  his discretion, may have an investigation of the matter made

31  by the Rehabilitation Section of the division. The stipulation

                                  61

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  and the report of any investigation shall be deemed a part of

  2  the record of the proceedings.

  3         (d)  When an application for an advance payment in

  4  excess of $2,000 is opposed by the employer or carrier, it

  5  shall be heard by a judge of compensation claims after giving

  6  the interested parties not less than 10 days' notice of such

  7  hearing by mail, unless such notice is waived. In her or his

  8  discretion, the judge of compensation claims may have an

  9  investigation of the matter made by the Rehabilitation Section

10  of the division, in which event the report and recommendation

11  of that section will be deemed a part of the record of the

12  proceedings. If the judge of compensation claims finds that

13  such advance payment is for the best interests of the person

14  entitled to compensation, will not materially prejudice the

15  rights of the employer and carrier, and is reasonable under

16  the circumstances of the case, she or he may order the same

17  paid. However, in no event may any such advance payment under

18  this paragraph be granted in excess of $7,500 or 26 weeks of

19  benefits in any 48-month period, whichever is greater, from

20  the date of the last advance payment.

21         (12)(13)  If the employer has made advance payments of

22  compensation, she or he shall be entitled to be reimbursed out

23  of any unpaid installment or installments of compensation due.

24         (13)(14)  When an employee is injured and the employer

25  pays the employee's full wages or any part thereof during the

26  period of disability, or pays medical expenses for such

27  employee, and the case is contested by the carrier or the

28  carrier and employer and thereafter the carrier, either

29  voluntarily or pursuant to an award, makes a payment of

30  compensation or medical benefits, the employer shall be

31  entitled to reimbursement to the extent of the compensation

                                  62

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  paid or awarded, plus medical benefits, if any, out of the

  2  first proceeds paid by the carrier in compliance with such

  3  voluntary payment or award, provided the employer furnishes

  4  satisfactory proof to the judge of compensation claims of such

  5  payment of compensation and medical benefits. Any payment by

  6  the employer over and above compensation paid or awarded and

  7  medical benefits, pursuant to subsection (12) (13), shall be

  8  considered a gratuity.

  9         (14)(15)(a)  The division shall examine on an ongoing

10  basis claims files in order to identify questionable

11  claims-handling techniques, questionable patterns or practices

12  of claims, or a pattern of repeated unreasonably controverted

13  claims by employers, carriers, self-insurers, health care

14  providers, health care facilities, training and education

15  providers, or any others providing services to employees

16  pursuant to this chapter and may certify its findings to the

17  Department of Insurance. Such questionable techniques,

18  patterns, or repeated unreasonably controverted claims as

19  constitute a general business practice of a carrier in the

20  judgment of the division shall be certified in its findings by

21  the division to the Department of Insurance or such other

22  appropriate licensing agency. Such certification by the

23  division is exempt from the provisions of chapter 120. Upon

24  receipt of any such certification, the Department of Insurance

25  shall take appropriate action so as to bring such general

26  business practices to a halt pursuant to s. 440.38(3)(a). The

27  division may initiate investigations of questionable

28  techniques, patterns, practices, or repeated unreasonably

29  controverted claims.

30

31

                                  63

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (b)  As to any examination, investigation, or hearing

  2  being conducted under this chapter, the Secretary of Labor and

  3  Employment Security or the secretary's designee:

  4         1.  May administer oaths, examine and cross-examine

  5  witnesses, receive oral and documentary evidence; and

  6         2.  Shall have the power to subpoena witnesses, compel

  7  their attendance and testimony, and require by subpoena the

  8  production of books, papers, records, files, correspondence,

  9  documents, or other evidence which is relevant to the inquiry.

10         (c)  If any person refuses to comply with any such

11  subpoena or to testify as to any matter concerning which she

12  or he may be lawfully interrogated, the Circuit Court of Leon

13  County or of the county wherein such examination,

14  investigation, or hearing is being conducted, or of the county

15  wherein such person resides, may, on the application of the

16  department, issue an order requiring such person to comply

17  with the subpoena and to testify.

18         (d)  Subpoenas shall be served, and proof of such

19  service made, in the same manner as if issued by a circuit

20  court. Witness fees, costs, and reasonable travel expenses, if

21  claimed, shall be allowed the same as for testimony in a

22  circuit court.

23         (e)  The division shall publish annually a report which

24  indicates the promptness of first payment of compensation

25  records of each carrier or self-insurer so as to focus

26  attention on those carriers or self-insurers with poor payment

27  records for the preceding year. A copy of such report shall be

28  certified to the Department of Insurance which shall take

29  appropriate steps so as to cause such poor carrier payment

30  practices to halt pursuant to s. 440.38(3)(a). In addition,

31  the division shall take appropriate action so as to halt such

                                  64

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  poor payment practices of self-insurers. "Poor payment

  2  practice" means a practice of late payment sufficient to

  3  constitute a general business practice.

  4         (f)  The division shall promulgate rules providing

  5  guidelines to carriers, self-insurers, and employers to

  6  indicate behavior that may be construed as questionable

  7  claims-handling techniques, questionable patterns of claims,

  8  repeated unreasonably controverted claims, or poor payment

  9  practices.

10         (15)(16)  No penalty assessed under this section may be

11  recouped by any carrier or self-insurer in the rate base, the

12  premium, or any rate filing. In the case of carriers, the

13  Department of Insurance shall enforce this subsection; and in

14  the case of self-insurers, the division shall enforce this

15  subsection.

16         Section 14.  Section 440.34, Florida Statutes, is

17  amended to read:

18         440.34  Attorney's fees; costs.--

19         (1)  A fee, gratuity, or other consideration may not be

20  paid for services rendered for a claimant in connection with

21  any proceedings arising under this chapter, unless approved as

22  reasonable by the judge of compensation claims or court having

23  jurisdiction over such proceedings. Except as provided by this

24  subsection, any attorney's fee approved by a judge of

25  compensation claims for services rendered to a claimant must

26  equal to 20 percent of the first $5,000 of the amount of the

27  benefits actually paid under an order or joint stipulation

28  secured, 15 percent of the next $5,000 of the amount of the

29  benefits actually paid under an order or joint stipulation

30  secured, 10 percent of the remaining amount of the benefits

31  actually paid under an order or joint stipulation secured to

                                  65

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  be provided during the first 10 years after the date the claim

  2  is filed, and 5 percent of the benefits actually paid under an

  3  order or joint stipulation secured after 10 years.

  4         (2)  Under no circumstances may an attorney's fee be

  5  awarded other than on a contingency basis. The calculation of

  6  fees based on an hourly rate is prohibited.

  7         (3)  Prejudgment or postjudgment interest may not be

  8  included in attorney's fees awarded under this section.

  9         (4)  The employee must be given notice of the

10  attorney's fee hearing and has the right to testify at the

11  hearing. The employee must receive a copy of any stipulation

12  or order awarding attorney's fees. However, the judge of

13  compensation claims shall consider the following factors in

14  each case and may increase or decrease the attorney's fee if,

15  in her or his judgment, the circumstances of the particular

16  case warrant such action:

17         (a)  The time and labor required, the novelty and

18  difficulty of the questions involved, and the skill requisite

19  to perform the legal service properly.

20         (b)  The fee customarily charged in the locality for

21  similar legal services.

22         (c)  The amount involved in the controversy and the

23  benefits resulting to the claimant.

24         (d)  The time limitation imposed by the claimant or the

25  circumstances.

26         (e)  The experience, reputation, and ability of the

27  lawyer or lawyers performing services.

28         (f)  The contingency or certainty of a fee.

29         (5)(2)  In awarding a reasonable claimant's attorney's

30  fee, the judge of compensation claims shall consider only

31  those benefits to the claimant that the attorney is

                                  66

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  responsible for under an order or stipulation securing. The

  2  amount, statutory basis, and type of benefits obtained through

  3  legal representation shall be listed on all attorney's fees

  4  awarded by the judge of compensation claims. For purposes of

  5  this section, the term "benefits paid secured" means benefits

  6  obtained as a result of the claimant's attorney's legal

  7  services rendered in connection with the petition claim for

  8  benefits. However, such term does not include future medical

  9  benefits to be provided on any date more than 5 years after

10  the date the petition claim is filed.

11         (6)(3)  If the claimant should prevail in any

12  proceedings before a judge of compensation claims or court,

13  there shall be taxed against the employer the reasonable costs

14  of such proceedings, not to include the attorney's fees of the

15  claimant. A claimant shall be responsible for the payment of

16  her or his own attorney's fees, except that a claimant shall

17  be entitled to recover a reasonable attorney's fee from a

18  carrier or employer:

19         (a)  Against whom she or he successfully asserts a

20  petition claim for medical benefits only, of an amount $1,000

21  or greater if the claimant has not filed or is not entitled to

22  file at such time a petition claim for disability, permanent

23  impairment, wage-loss, or death benefits, arising out of the

24  same accident; or

25         (b)  In any case in which the employer or carrier files

26  a notice of denial with the division, which notice of denial

27  denies the benefits sought, and the injured person has

28  employed an attorney in the successful prosecution of the

29  petition, except on issues as to the average weekly wage

30  claim; or

31

                                  67

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (c)  In a proceeding in which a carrier or employer

  2  denies that an injury occurred for which compensation benefits

  3  are payable, and the claimant prevails on the issue of

  4  compensability; or

  5         (d)  In cases where the claimant successfully prevails

  6  in proceedings filed under s. 440.24 or s. 440.28.

  7

  8  In applying the factors set forth in subsection (1) to cases

  9  arising under paragraphs (a), (b), (c), and (d), the judge of

10  compensation claims must only consider only such benefits and

11  the time reasonably spent in obtaining them as were secured

12  for the claimant within the scope of paragraphs (a), (b), (c),

13  and (d).

14         (7)(4)  In such cases in which the claimant is

15  responsible for the payment of her or his own attorney's fees,

16  such fees are a lien upon compensation payable to the

17  claimant, notwithstanding s. 440.22.

18         (8)(5)  If any proceedings are had for review of any

19  petition claim, award, or compensation order before any court,

20  the court may award the injured employee or dependent an

21  attorney's fee to be paid by the employer or carrier, in its

22  discretion, which shall be paid as the court directs when

23  benefits have been awarded to the claimant under the appeal

24  may direct. The fee may not equal more than $125 an hour.

25         (9)(6)  A judge of compensation claims may not enter an

26  order approving the contents of a retainer agreement that

27  permits the escrowing of any portion of the employee's

28  compensation until benefits have been secured.

29         Section 15.  Section 440.595, Florida Statutes, is

30  created to read:

31

                                  68

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         440.595  Oaths and witnesses.--The division may

  2  administer oaths and affirmations and issue subpoenas to

  3  compel the attendance of witnesses and the production of

  4  books, papers, correspondence, memoranda, and other records

  5  deemed necessary as evidence in order to ensure proper

  6  compliance with the coverage provisions of this chapter.

  7         Section 16.  Section 440.596, Florida Statutes, is

  8  created to read:

  9         440.596  Florida Workers' Compensation Management

10  Board, Inc.--

11         (1)  There is created a nonprofit corporation to be

12  known as the "Florida Workers' Compensation Management Board,

13  Inc." The corporation shall operate under a plan developed by

14  its board of directors and approved by the Division of

15  Workers' Compensation. The board is not a state agency, board,

16  or commission.

17         (2)  The purpose of the corporation is to provide

18  management operations and services necessary for the

19  administration of the workers' compensation system which are

20  more efficiently performed by private enterprise. By

21  transferring most of the duties of the Division of Workers'

22  Compensation to the corporation, the state will have the

23  resources to undertake and focus on functions that are

24  appropriate and within the purview of state government. The

25  use of private enterprise facilitates an efficient,

26  cost-effective system that will more quickly respond to

27  dynamic changes within the compensation system.

28         (3)(a)  The board of directors of the corporation shall

29  consist of nine members, eight of whom shall be appointed by

30  the Governor. The Governor shall appoint four members as

31  representatives of labor interests and four members as

                                  69

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  representatives of employers. A ninth member shall be elected

  2  by a majority vote of the other members. Two members appointed

  3  as representatives of labor interests and two members

  4  appointed as representatives of management interests shall be

  5  appointed for 2-year terms. The remaining appointees shall be

  6  appointed to serve 4-year terms. Thereafter all members shall

  7  be appointed to serve for terms of 4 years, except that a

  8  vacancy shall be filled by appointment for the remainder of

  9  the term. Directors may be reappointed but may not serve for

10  more than two consecutive terms. All directors must have

11  significant experience in the workers' compensation system,

12  must not have an ownership or material financial interest in

13  any entity that receives payments from the compensation

14  system, and may not receive contracts from the corporation for

15  services while serving on the board of directors or within 2

16  years after service on the board of directors.

17         (b)  Each member is accountable to the Governor for

18  proper performance of his or her duties as a member of the

19  board of directors. The Governor may remove any member from

20  office for malfeasance, misfeasance, neglect of duty,

21  drunkenness, incompetence, or permanent inability to perform

22  official duties, or for pleading guilty or nolo contendere to,

23  or having been adjudicated guilty of, a felony or a

24  first-degree misdemeanor.

25         (c)  The directors shall serve without salary, but each

26  director shall be reimbursed for actual and necessary expenses

27  incurred in the performance of his or her official duties as a

28  director, in accordance with s. 112.061. The directors shall

29  not be subject to any liability under any theory of recovery

30  without a showing of fraud or malice.

31

                                  70

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1         (4)  The appropriations dedicated to the plan of

  2  operation shall be administered by the board of directors. On

  3  or before September 1, 1999, the directors of the corporation

  4  shall submit to the Division of Workers' Compensation for

  5  review a plan of operation. The plan must provide for

  6  efficient administration of the system and for prompt

  7  processing of forms, efficient methods of data collection, and

  8  creation of alternative dispute-resolution mechanisms that

  9  will facilitate a self-executing workers' compensation system.

10  The plan of operation may be changed at any time by the board

11  of directors or upon request by the Department of Labor and

12  Employment Security. The plan of operation and all changes

13  thereto are subject to the approval of the department. The

14  plan of operation must include, but is not limited to,

15  components authorizing the board to:

16         (a)  Engage in the activities necessary and incidental

17  to provide the management functions necessary for the

18  operation of the workers' compensation system.

19         (b)  Provide consulting services to the Division of

20  Workers' Compensation and the Department of Labor and

21  Employment Security.

22         (c)  Borrow money.

23         (d)  Efficiently process reporting requirements

24  required by law.

25         (e)  Develop alternative dispute-resolution mechanisms,

26  including funding of personnel, equipment, and facilities that

27  will enhance the expedient resolution of conflicts between

28  injured employees and the employer or carrier.

29         (f)  Enter contractual arrangements with the state to

30  allow for the purchase or lease of surplus office equipment,

31  computers, or data systems from the Division of Workers'

                                  71

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  Compensation, or from any other state entity, which will allow

  2  for an efficient transition of functions from the Division of

  3  Workers' Compensation to operations by the corporation.

  4         (g)  Provide for annual reports to the department on

  5  expenditures and completion of plan objectives and

  6  recommendations for future plan goals.

  7         (h)  Delegate and enter contractual arrangements for

  8  administering and completing corporation responsibilities.

  9         (i)  Provide for the processing and dissemination of

10  payments approved by the division from the Special Disability

11  Trust Fund.

12         (5)(a)  The board of directors shall employ a chief

13  operating officer to conduct the day-to-day operations of the

14  corporation in accordance with policies established by the

15  board of directors and otherwise implement the policy of the

16  board of directors. The chief operating officer shall hire

17  personnel according to policies adopted by the board of

18  directors to assist in completing the corporation's

19  objectives.

20         (b)  All personnel hired by the board of directors,

21  including the chief executive officer, are corporation

22  employees that serve at the pleasure of the board of directors

23  and are not subject to state employee hiring and termination

24  requirements.

25         (c)  The plan shall include provisions for a retirement

26  program for plan employees. The retirement program shall

27  provide credit for years of service working for the Department

28  of Labor and Employment Security.

29         (6)  The board of directors shall appoint a standing

30  technical advisory committee to advise it on the implications

31  of data-reporting requirements and recommend alternative

                                  72

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






    Florida Senate - 1998                                  SB 1422
    34-846-98




  1  reporting and processing requirements that will enhance plan

  2  efficiency. The technical advisory committee shall be

  3  appointed by the chief executive officer with the concurrence

  4  of the board of directors and shall include representatives of

  5  insurance entities from group self-insurance funds authorized

  6  by s. 624.462, assessable mutual insurers authorized under s.

  7  628.6011, and insurers licensed to write workers' compensation

  8  and employer's liability insurance in this state.

  9         Section 17.  Paragraph (f) of subsection (2) of section

10  20.711 and section 440.4416, Florida Statutes, are repealed.

11         Section 18.  This act shall take effect October 1,

12  1998.

13

14            *****************************************

15                          SENATE SUMMARY

16    Creates the Workers' Compensation Appeals Commission and
      the Florida Workers' Compensation Management Board,
17    Incorporated. Provides for the membership, terms, powers,
      and duties of the commission and the board. Amends
18    various sections of chapter 440, F.S., revising
      procedures and criteria for the administration of the
19    workers' compensation system. (See bill for details.)

20

21

22

23

24

25

26

27

28

29

30

31

                                  73