House Bill 3935

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    Florida House of Representatives - 1998                HB 3935

        By Representative Arnall






  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 20.171, F.S.; deleting the Division

  4         of Safety of the Department of Labor and

  5         Employment Security; creating the Workers'

  6         Compensation Appeals Commission; providing for

  7         appointments of commission judges; providing

  8         qualifications; providing authority, powers,

  9         duties, and responsibilities of judges;

10         authorizing certain expenditures; authorizing

11         imposition of charges and fees; providing

12         powers of the presiding judge; requiring the

13         commission to operate a clerk's office;

14         providing for appointment of a clerk; providing

15         duties of the clerk; providing for a seal;

16         authorizing destruction of obsolete records;

17         providing for reimbursement of travel expenses;

18         providing for rules governing practice and

19         procedure; amending s. 440.02, F.S.; revising

20         certain definitions; amending s. 440.05, F.S.;

21         proscribing exemption from application for

22         certain persons; amending s. 440.10, F.S., to

23         conform; amending s. 440.09, F.S.; specifying

24         criteria for coverage of certain mental or

25         nervous injuries; prohibiting compensation for

26         psychiatric impairments; providing for

27         rebutting a presumption; providing for alcohol

28         testing; amending s. 440.107, F.S.; requiring

29         the Division of Workers' Compensation to assess

30         civil penalties under certain circumstances;

31         requiring the division to assess certain

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  1         penalties against certain employers under

  2         certain circumstances; amending s. 440.13,

  3         F.S.; providing for alternative medical care;

  4         providing construction; providing for

  5         independent medical examinations; providing for

  6         responsibility for costs of independent medical

  7         examination a; amending s. 440.134, F.S.;

  8         providing additional definitions; authorizing

  9         certain employers to opt out of mandatory

10         managed care arrangements under certain

11         circumstances; providing for informal and

12         formal grievance procedures; providing criteria

13         and requirements; excluding certain injuries

14         from determinations by the Agency for Health

15         Care Administration of compliance; amending s.

16         440.14, F.S.; revising provisions relating to

17         determinations of pay; excluding average weekly

18         wage issues from attorney's fees; providing for

19         use of actual wages earned under certain

20         circumstances; amending s. 440.15, F.S.;

21         revising provisions providing for payment of

22         compensation for disability relating to

23         permanent total disability, temporary total

24         disability, permanent impairment and wage-loss

25         benefits, and temporary partial disability;

26         replacing criteria, procedures, and

27         requirements for payment of supplemental

28         benefits with such provisions for wage-loss

29         benefits; amending s. 440.191, F.S.; requiring

30         employees to notify certain persons of expected

31         benefits; amending s. 440.192, F.S.; clarifying

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  1         a procedure for resolving benefit disputes;

  2         deleting a presumption; amending s. 440.20,

  3         F.S.; increasing a time period for payment of

  4         certain compensation without penalty; providing

  5         for approval of lump sum settlement agreements

  6         under certain circumstances; amending s.

  7         440.34, F.S.; clarifying award of attorney's

  8         fees; deleting authorization to adjust

  9         attorney's fees; prohibiting attorney's fees

10         based on an hourly rate; prescribing award of

11         attorney's fees on a contingency basis;

12         excluding certain interest in awarding

13         attorney's fees; requiring notice to employees

14         of attorney fee hearings; clarifying

15         assessments of costs of certain proceedings;

16         limiting attorney's fees in certain

17         proceedings; creating s. 440.594, F.S.;

18         requiring employers to keep certain records and

19         reports; creating s. 440.595, F.S.; providing

20         for oaths and witnesses; creating s. 440.596,

21         F.S.; creating the Florida Workers'

22         Compensation Management Board; providing

23         purposes; providing for membership and terms

24         and qualifications of members; providing for

25         removal of members; providing for reimbursing

26         members for certain expenses; providing powers

27         and duties of the board; requiring the board to

28         employ a chief operating officer for certain

29         purposes; requiring the board to appoint a

30         standing technical advisory committee for

31         certain purposes; providing for membership;

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  1         amending ss. 442.003, 442.014, 442.023, 442.20,

  2         627.0915, 627.212, and 627.311, F.S.; providing

  3         for certain duties and responsibilities of the

  4         Division of Safety of the Department of Labor

  5         and Employment Security to be performed by the

  6         Division of Workers' Compensation; repealing s.

  7         440.4416, F.S., relating to the Workers'

  8         Compensation Oversight Board; providing an

  9         effective date.

10

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

12

13         Section 1.  Subsections (2) and (3) of section 20.171,

14  Florida Statutes, are amended, and subsection (5) is added to

15  said section, to read:

16         20.171  Department of Labor and Employment

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

18  Employment Security.

19         (2)  The following divisions, and bureaus within the

20  divisions, of the Department of Labor and Employment Security

21  are established:

22         (a)  Division of Jobs and Benefits.

23         (b)  Division of Unemployment Compensation.

24         (c)  Division of Administrative Services.

25         (d)  Division of Workers' Compensation.

26         (e)  Division of Vocational Rehabilitation.

27         (f)  Division of Safety.

28         (f)(g)  Division of Blind Services.

29         (3)  The following commissions are established within

30  the Department of Labor and Employment Security:

31         (a)  Public Employees Relations Commission.

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  1         (b)  Unemployment Appeals Commission.

  2         (c)  Workers' Compensation Appeals Commission.

  3         (5)(a)1.a.  There is created within the Department of

  4  Labor and Employment Security a Workers' Compensation Appeals

  5  Commission consisting of a presiding judge and four other

  6  judges, appointed by the Governor after October 1, 1998, but

  7  before May 15, 1999, and serving full time. Each appointee

  8  shall have the qualifications required by law for judges of

  9  the District Courts of Appeal. In addition to such

10  qualifications, the judges of the Workers' Compensation

11  Appeals Commission shall be substantially experienced in the

12  field of workers' compensation.

13         b.  Initially, the Governor shall appoint two judges

14  for terms of 4 years, two judges for terms of 3 years, and one

15  judge for a term of 2 years. Thereafter, each full time judge

16  shall be appointed for a term of 4 years, but during the term

17  of office may be removed by the Governor for cause.

18         c.  The initial appointment process, retention process,

19  and filling of vacancies of unexpired terms for the judges

20  shall be pursuant to nominations by the Workers' Compensation

21  Appeals Nominating Commission. The Workers' Compensation

22  Appeals Nominating Commission shall submit a list to the

23  Governor by August 1, 1998, of fifteen candidates for the five

24  initial appointments from which list the Governor shall

25  appoint the judges of the commission.

26         d.  Prior to the expiration of the term of office of a

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

28  Workers' Compensation Appeals Nominating Commission. A report

29  of the Workers' Compensation Appeals Nominating Commission

30  regarding retention shall be furnished to the Governor no

31  later than 6 months prior to the expiration of the term of the

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  1  judge. If the Workers' Compensation Appeals Nominating

  2  Commission issues a favorable report, the Governor shall

  3  reappoint the judge. However, if the Workers' Compensation

  4  Appeals Nominating Commission issues an unfavorable report,

  5  the Workers' Compensation Appeals Nominating Commission shall

  6  issue a report to the Governor which shall include a list of

  7  three candidates for appointment. In the event a vacancy

  8  occurs during an unexpired term of a judge on the Workers'

  9  Compensation Appeals Commission, the Workers' Compensation

10  Appeals Nominating Commission shall issue a report to the

11  Governor which shall include a list of three candidates for

12  appointment.

13         e.  Judges of the Workers' Compensation Appeals

14  Commission are subject to the jurisdiction of the Judicial

15  Qualifications Commission during their term of office.

16         2.  The presiding judge may, by order filed with the

17  commission and approved by the Governor, appoint an associate

18  judge to serve as a temporary judge of the commission. Such

19  appointment may be made only of a currently commissioned judge

20  of compensation claims. Such appointment shall be for such

21  period of time as to not cause an undue burden on the caseload

22  in the judge's jurisdiction. Each associate judge shall

23  receive no additional pay during the appointment except for

24  expenses incurred in the performance of the additional duties.

25         3.  Total salaries and benefits of judges of the

26  commission are to be paid from the Workers' Compensation

27  Administration Trust Fund established under s. 440.50.

28  Notwithstanding any other provision of law, commission judges

29  shall be paid a salary equal to that paid by law to judges of

30  District Courts of Appeal.

31

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  1         (b)1.  The commission is vested with all authority,

  2  powers, duties, and responsibilities relating to review of

  3  orders of judges of compensation claims in workers'

  4  compensation proceedings under chapter 440. The commission

  5  shall review by appeal final orders of the judges of

  6  compensation claims entered pursuant to chapter 440. The First

  7  District Court of Appeal shall retain jurisdiction over all

  8  workers' compensation proceedings pending before the court on

  9  October 1, 1998. The commission may hold sessions and conduct

10  hearings at any place within the state. Three judges shall

11  consider each case and the concurrence of two shall be

12  necessary for any decision. Any judge may request an en banc

13  hearing for review of a final order of a judge of compensation

14  claims.

15         2.  The Workers' Compensation Appeals Commission shall

16  be within the Department of Labor and Employment Security but,

17  in the performance of its powers and duties under chapter 440,

18  shall not be subject to control, supervision, or direction by

19  the Department of Labor and Employment Security. The

20  commission is not an agency for purposes of chapter 120.

21         3.  The property, personnel, and appropriations related

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

23  responsibilities shall be provided to the commission by the

24  Department of Labor and Employment Security.

25         (c)  The commission shall make such expenditures,

26  including expenditures for personnel services and rent at the

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

28  materials, periodicals, furniture, equipment, and supplies,

29  and for printing and binding, as may be necessary in

30  exercising its authority and powers and carrying out its

31  duties and responsibilities. All such expenditures of the

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  1  commission shall be allowed and paid as provided in s. 440.50

  2  upon the presentation of itemized vouchers for such

  3  expenditures, approved by the presiding judge.

  4         (d)  The commission may charge, in its discretion, for

  5  publications, subscriptions, and copies of records and

  6  documents. Such fees shall be deposited into the Workers'

  7  Compensation Administration Trust Fund.

  8         (e)1.  The presiding judge shall exercise

  9  administrative supervision over the Workers' Compensation

10  Appeals Commission and over the judges and other officers of

11  the commission.

12         2.  The presiding judge of the Workers' Compensation

13  Appeals Commission may:

14         a.  Assign judges to hear appeals from final orders of

15  judges of compensation claims.

16         b.  Hire and assign clerks and staff.

17         c.  Regulate use of courtrooms.

18         d.  Supervise dockets and calendars.

19         e.  Do everything necessary to promote the prompt and

20  efficient administration of justice in the courts over which

21  he or she presides.

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

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

24  succeed himself or herself for successive terms.

25         4.  The presiding judge may employ an executive

26  assistant who shall perform such duties as the presiding judge

27  may direct. Additionally, each judge may have research

28  assistants or law clerks.

29         (f)1.  The commission shall maintain and keep open

30  during reasonable business hours a clerk's office, located in

31  the Capitol or some other suitable building in Leon County,

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  1  for the transaction of commission business. All books, papers,

  2  records, files, and the seal of the commission shall be kept

  3  at such office. The office shall be furnished and equipped by

  4  the commission.

  5         2.  The Workers' Compensation Appeals Commission shall

  6  appoint a clerk who shall hold office at the pleasure of the

  7  commission. Before discharging the duties of the clerk, the

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

  9  Governor of the state, to be approved by a majority of the

10  members of the commission and conditioned upon the faithful

11  discharge of the duties of the clerk's office, which bond

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

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

14  determined in accordance with s. 25.382.

15         4.  The clerk may employ such deputies and clerical

16  assistants as may be necessary. The number and compensation of

17  such deputies and assistants shall be as approved by the

18  commission and paid from the annual appropriation for the

19  Workers' Compensation Appeals Commission from the Workers'

20  Compensation Administration Trust Fund.

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

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

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

24  collect for copying, certifying, or furnishing opinions,

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

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

27  an agency of the state, when appearing as appellant or

28  petitioner, is exempt from such filing fee.

29         6.  The clerk of the Workers' Compensation Appeals

30  Commission shall prepare a statement of all fees collected

31  each month, in duplicate, and shall remit one copy of such

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  1  statement, together with all fees collected by the clerk, to

  2  the Comptroller who shall deposit such fees into the Workers'

  3  Compensation Administration Trust Fund.

  4         (g)  The commission shall have a seal for

  5  authentication of orders, awards, and proceedings and upon

  6  which shall be inscribed the words "State of Florida Workers'

  7  Compensation Appeals Commission--Seal", and the seal shall be

  8  judicially noticed.

  9         (h)  The commission may destroy obsolete records of the

10  commission.

11         (i)  Judges of the Workers' Compensation Appeals

12  Commission shall be reimbursed for travel expenses as provided

13  in s. 112.061.

14         (j)  Practice and procedure before the commission and

15  of judges of compensation claims shall be governed by rules

16  adopted by the Supreme Court except to the extent such rules

17  conflict with the provisions of chapter 440.

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

19  440.02, Florida Statutes, are amended to read:

20         440.02  Definitions.--When used in this chapter, unless

21  the context clearly requires otherwise, the following terms

22  shall have the following meanings:

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

24  rendered is recompensed under the contract of hiring in force

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

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

27  the employee is injured and any other concurrent employment

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

29  coverage and benefits, together with the reasonable value of

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

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

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

  2  income received in the course of employment from others than

  3  the employer and employer contributions for health insurance

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

  5  housing furnished to migrant workers shall be included in

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

  7  in which an employee receives consideration for housing, the

  8  reasonable value of such housing compensation shall be the

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

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

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

12  employer contributions for housing or health insurance are

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

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

15  average weekly wage.

16         (34)  "Catastrophic injury" means a permanent

17  impairment constituted by:

18         (a)  Spinal cord injury involving severe paralysis of

19  an arm, a leg, or the trunk;

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

21  involving the effective loss of use of that appendage;

22         (c)  Severe brain or closed-head injury caused by head

23  trauma as evidenced by:

24         1.  Severe sensory or motor disturbances;

25         2.  Severe communication disturbances;

26         3.  Severe complex integrated disturbances of cerebral

27  function;

28         4.  Severe episodic neurological disorders; or

29         5.  Other severe brain and closed-head injury

30  conditions at least as severe in nature as any condition

31  provided in subparagraphs 1.-4.;

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

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

  3  percent or more to the face and hands; or

  4         (e)  Total or industrial blindness; or

  5         (f)  Any other injury that would otherwise qualify

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

  7  an employee to receive disability income benefits under Title

  8  II or supplemental security income benefits under Title XVI of

  9  the federal Social Security Act as the Social Security Act

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

11  limitations provided under that act.

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

13  Statutes, is amended to read:

14         440.05  Election of exemption; revocation of election;

15  notice; certification.--

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

17  independent contractor, or partner engaged in the construction

18  industry may not be exempt from coverage under this chapter.

19  Each sole proprietor, partner, or officer of a corporation who

20  is actively engaged in the construction industry and who

21  elects an exemption from this chapter or who, after electing

22  such exemption, revokes that exemption, must mail a written

23  notice to such effect to the division on a form prescribed by

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

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

26  The election must list the name, federal tax identification

27  number, social security number, and all certified or

28  registered licenses issued pursuant to chapter 489 held by the

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

30  proprietorship, partnership, or corporation that employs the

31  person electing the exemption and must list the social

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  1  security number or federal tax identification number of each

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

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

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

  5  provide that the election does not exceed exemption limits for

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

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

  8  officer electing an exemption are covered by workers'

  9  compensation insurance. Upon receipt of the notice of the

10  election to be exempt and a determination that the notice

11  meets the requirements of this subsection, the division shall

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

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

14  names of the sole proprietorship, partnership, or corporation

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

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

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

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

19  certificate of election must be sent to each workers'

20  compensation carrier identified in the request for exemption.

21  The certification of the election is valid until the sole

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

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

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

25  notify her or his contractor.

26         Section 4.  Subsection (1) and paragraphs (b) and (c)

27  of subsection (7) of section 440.09, Florida Statutes, are

28  amended to read:

29         440.09  Coverage.--

30         (1)  The employer shall pay compensation or furnish

31  benefits required by this chapter if the employee suffers an

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  1  accidental compensable injury or death arising out of work

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

  3  injury, its occupational cause, and any resulting

  4  manifestations, or disability, or impairment shall be

  5  established to a reasonable degree of medical certainty and by

  6  objective medical findings. Mental or nervous injuries

  7  occurring as a manifestation of an injury compensable under

  8  this section shall be demonstrated by clear and convincing

  9  evidence by objective medical findings as a result of the

10  injury from a division certified psychiatrist. In no event is

11  compensation payable as a result of any impairment rating for

12  psychiatric impairments.

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

14  benefits for any subsequent injury the employee suffers as a

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

16  of employment unless the original injury is the major

17  contributing cause of the subsequent injury.

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

19  employment combines with a preexisting disease or condition to

20  cause or prolong disability or need for treatment, the

21  employer must pay compensation or benefits required by this

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

23  in the course of employment is and remains the major

24  contributing cause of the disability or need for treatment.

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

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

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

28  considered to be a death resulting from the accident causing

29  the hernia.

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

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

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

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

  3  are entitled to compensation if the contract of employment was

  4  made in this state, or the employment was principally

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

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

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

  8  provided in this chapter.

  9         (7)

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

11  blood alcohol level equal to or greater than the level

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

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

14  that the injury was occasioned primarily by the intoxication

15  of, or by the influence of the drug upon, the employee. In the

16  presence of a drug-free workplace program, this presumption

17  may be rebutted by the employee with evidence beyond a

18  reasonable doubt that the intoxication or influence of the

19  drug did not contribute to the injury. In the absence of a

20  drug-free workplace program, this presumption may be rebutted

21  by clear and convincing evidence that the intoxication or

22  influence of the drug did not contribute to the injury.

23  Percent by weight of alcohol in the blood must be based upon

24  grams of alcohol per 100 milliliters of blood. If the results

25  are positive, the testing facility must maintain the specimen

26  for a minimum of 90 days. Blood serum may be used for testing

27  purposes under this chapter; however, if this test is used,

28  the presumptions under this section do not arise unless the

29  blood alcohol level is proved to be medically and

30  scientifically equivalent to or greater than the comparable

31  blood alcohol level that would have been obtained if the test

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  1  were based on percent by weight of alcohol in the blood.

  2  However, if, before the accident, the employer had actual

  3  knowledge of and expressly acquiesced in the employee's

  4  presence at the workplace while under the influence of such

  5  alcohol or drug, the presumptions specified in this subsection

  6  do not apply.

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

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

  9  and convincing evidence to the contrary that the injury was

10  occasioned primarily by the influence of drugs or alcohol.

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

12  Statutes, is amended to read:

13         440.10  Liability for compensation.--

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

15  this chapter, including any brought within the chapter by

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

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

18  physician, surgeon, or pharmacist providing services under the

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

20  440.13, 440.15, and 440.16. Any contractor or subcontractor

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

22  shall secure and maintain compensation for his or her

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

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

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

26  all of the employees of such contractor and subcontractor or

27  subcontractors engaged on such contract work shall be deemed

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

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

30  payment of compensation to all such employees, except to

31  employees of a subcontractor who has secured such payment.

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  1         (c)  A contractor may require a subcontractor to

  2  provide evidence of workers' compensation insurance or a copy

  3  of his or her certificate of election. A subcontractor

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

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

  6  certificate of election to the contractor.

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

  8  of compensation to the employees of a subcontractor who has

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

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

11  recover from the subcontractor all benefits paid or payable

12  plus interest unless the contractor and subcontractor have

13  agreed in writing that the contractor will provide coverage.

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

15  for the payment of compensation to the employee of a

16  subcontractor who is actively engaged in the construction

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

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

19  third-party payor may recover from the independent contractor

20  claimant, partnership, or corporation all benefits paid or

21  payable plus interest, unless the contractor and the

22  subcontractor have agreed in writing that the contractor will

23  provide coverage.

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

25  compensation to the employees of another subcontractor on such

26  contract work and is not protected by the

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

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

29  of another subcontractor.

30         (f)  If an employer willfully fails to secure

31  compensation as required by this chapter, the division shall

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

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

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

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

  5  criteria for an independent contractor that are set forth in

  6  s. 440.02.

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

  8  conclusively presumed to be an independent contractor if:

  9         1.  The independent contractor provides the general

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

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

12         2.  The independent contractor provides the general

13  contractor with a valid certificate of workers' compensation

14  insurance or a valid certificate of exemption issued by the

15  division.

16

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

18  of a corporation who elects exemption from this chapter by

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

20  recover benefits or compensation under this chapter.

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

22  Florida Statutes, are amended to read:

23         440.107  Division powers to enforce employer compliance

24  with coverage requirements.--

25         (1)  Whenever the division determines that an employer

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

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

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

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

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

31  employer, requiring the cessation of all business operations

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

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

  3  employer provides evidence satisfactory to the division of

  4  having secured any necessary insurance or self-insurance and

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

  6  division into the Workers' Compensation Administration Trust

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

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

  9  not issue a stop-work order, the division shall assess a civil

10  penalty against the employer, payable to the division, to be

11  deposited by the division into the Workers' Compensation

12  Administration Trust Fund, in an amount of $200.00 per day for

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

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

15  injunction, The division shall may assess against any

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

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

18  amount of:

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

20  have paid during periods it illegally failed to secure payment

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

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

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

24

25  Any penalty assessed under this subsection is due within 30

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

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

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

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

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

31

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

  2  of 1 percent per month.

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

  4  section 440.13, Florida Statutes, and subsections (4) and (5)

  5  of said section are amended, to read:

  6         440.13  Medical services and supplies; penalty for

  7  violations; limitations.--

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

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

10  arrangement and requests alternative medical care, and the

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

12  by clear and convincing evidence that the alternative medical

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

14  Alternative medical care for employees enrolled in a managed

15  care arrangement shall be pursuant to such managed care

16  arrangement.

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

18  DIVISION.--

19         (a)  Any health care provider providing necessary

20  remedial treatment, care, or attendance to any injured worker

21  shall submit treatment reports to the carrier in a format

22  prescribed by the division. A claim for medical or surgical

23  treatment is not valid or enforceable against such employer or

24  employee, unless, by the close of the third business day

25  following the first treatment, the physician providing the

26  treatment furnishes to the employer or carrier a preliminary

27  notice of the injury and treatment on forms prescribed by the

28  division and, within 15 days thereafter, furnishes to the

29  employer or carrier a complete report, and subsequent thereto

30  furnishes progress reports, if requested by the employer or

31  insurance carrier, at intervals of not less than 3 weeks apart

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  1  or at less frequent intervals if requested on forms prescribed

  2  by the division.

  3         (b)  Each medical report or bill obtained or received

  4  by the employer, the carrier, or the injured employee, or the

  5  attorney for the employer, carrier, or injured employee, with

  6  respect to the remedial treatment or care of the injured

  7  employee, including any report of an examination, diagnosis,

  8  or disability evaluation, must be filed with the Division of

  9  Workers' Compensation pursuant to rules adopted by the

10  division. The health care provider shall also furnish to the

11  injured employee or to his or her attorney, on demand, a copy

12  of his or her office chart, records, and reports, and may

13  charge the injured employee an amount authorized by the

14  division for the copies. Each such health care provider shall

15  provide to the division any additional information about the

16  remedial treatment, care, and attendance that the division

17  reasonably requests.

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

19  workers' compensation system that there be reasonable access

20  to medical information by all parties to facilitate the

21  self-executing features of the law. Notwithstanding the

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

23  381.004, upon the request of the employer, the carrier, or the

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

25  employee must be furnished to those persons and the medical

26  condition of the injured employee must be discussed with those

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

28  conditions relating to the workplace injury. Any such

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

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

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

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  1  who willfully refuses to provide medical records or to discuss

  2  the medical condition of the injured employee, after a

  3  reasonable request is made for such information pursuant to

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

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

  6         For purposes of this section, "discussion" means the

  7  free interchange of ideas, facts, and findings among the

  8  parties and health care providers designed to aid the parties

  9  in reaching conclusions that will enable them to carry out

10  their legal obligations and responsibilities.

11         (5)  INDEPENDENT MEDICAL EXAMINATIONS.--

12         (a)  In any dispute concerning overutilization, medical

13  benefits, compensability, or disability under this chapter,

14  the carrier or the employee may select an independent medical

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

16  or providing other care to the employee. An independent

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

18  area of expertise, as demonstrated by licensure and applicable

19  practice parameters.

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

21  independent medical examiner and is entitled to an alternate

22  examiner only if:

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

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

25  material to the claim or petition for benefits;

26         2.  The examiner ceases to practice in the specialty

27  relevant to the employee's condition;

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

29  or relocation outside a reasonably accessible geographic area;

30  or

31         4.  The parties agree to an alternate examiner.

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  1

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

  3  require, designation of a division medical advisor as an

  4  independent medical examiner. The opinion of the advisors

  5  acting as examiners shall not be afforded the presumption set

  6  forth in paragraph (9)(c).

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

  8  claimant directly to schedule a reasonable time for an

  9  independent medical examination when the carrier elects to

10  request such an examination. The carrier must confirm the

11  scheduling agreement in writing within 5 days and notify

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

13  upon which the independent medical examination is scheduled to

14  occur. An attorney representing a claimant is not authorized

15  to schedule independent medical evaluations under this

16  subsection. Nothing in this paragraph prohibits the attorney

17  from scheduling an examination with an independent medical

18  examiner selected by the employee.

19         (d)  Each party shall be responsible for any costs

20  incurred for an independent medical examination. An injured

21  employee may recover the costs incurred for an independent

22  medical examination if the injured employee is successful in

23  the prosecution of a claim against the carrier and the

24  independent medical examination was directly relevant to the

25  success of the claim.

26         (e)(d)  If the employee, without good cause, fails to

27  appear for the independent medical examination requested by

28  the carrier without good cause and fails to advise the

29  physician at least 24 hours before the scheduled date for the

30  examination that he or she cannot appear, the employee is

31  barred from recovering compensation for any period during

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  1  which he or she has refused to submit to such examination.

  2  Further, the employee shall reimburse the carrier 50 percent

  3  of the physician's cancellation or no-show fee for such

  4  examination unless the carrier that schedules the examination

  5  fails to timely provide to the employee a written confirmation

  6  of the date of the examination pursuant to paragraph (c) which

  7  includes an explanation of why he or she failed to appear. The

  8  employee may appeal to a judge of compensation claims for

  9  reimbursement when the carrier withholds payment in excess of

10  the authority granted by this section.

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

12  medical advisor appointed by the judge of compensation claims

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

14  treating provider is admissible in proceedings before the

15  judges of compensation claims.

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

17  in connection with delay of or opposition to an independent

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

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

20         Section 8.  Subsections (1), (2), (10), and (15) of

21  section 440.134, Florida Statutes, are amended, and subsection

22  (25) is added to said section, to read:

23         440.134  Workers' compensation managed care

24  arrangement.--

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

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

27  Administration.

28         (b)(h)  "Capitated contract" means a contract in which

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

30  health care provider in exchange for the future rendering of

31  medical services for covered expenses.

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  1         (c)  "Certified case manager" means an individual who

  2  is responsible for the timely coordination of quality health

  3  care services to meet an individual's specific health care

  4  needs in a cost-effective manner.

  5         (d)(b)  "Complaint" means any dissatisfaction expressed

  6  by an injured worker concerning an insurer's workers'

  7  compensation managed care arrangement.

  8         (e)(c)  "Emergency care" means medical services as

  9  defined in chapter 395.

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

11  dissatisfaction with the care, services, or benefits received,

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

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

14         (g)(d)  "Grievance" means dissatisfaction with the

15  medical care provided by an insurer's workers' compensation

16  managed care arrangement health care providers, expressed in

17  writing by an injured worker.

18         (h)  "Informal grievance" means a verbal complaint of

19  dissatisfaction, expressed by the injured employee or

20  provider, with the care, services, or benefits received and

21  addressed immediately through telephonic or personal

22  interaction at the time the complaint is made known.

23         (i)(e)  "Insurer" means an insurance carrier,

24  self-insurance fund, assessable mutual insurer, or

25  individually self-insured employer.

26         (j)(i)  "Medical care coordinator" means a primary care

27  provider within a provider network who is responsible for

28  managing the medical care of an injured worker including

29  determining other health care providers and health care

30  facilities to which the injured employee will be referred for

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

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  1  physician licensed under chapter 458 or an osteopathic

  2  physician licensed under chapter 459.

  3         (k)  "Primary care provider" means, except in the case

  4  of emergency treatment, the initial treating physician and,

  5  when appropriate, continuing treating physician, who may be a

  6  family practitioner, general practitioner, or internist

  7  physician licensed under chapter 458; a family practitioner,

  8  general practitioner, or internist osteopathic physician

  9  licensed under chapter 459; a chiropractor licensed under

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

11  optometrist licensed under chapter 463; or a dentist licensed

12  under chapter 466.

13         (l)(j)  "Provider network" means a comprehensive panel

14  of health care providers and health care facilities who have

15  contracted directly or indirectly with an insurer to provide

16  appropriate remedial treatment, care, and attendance to

17  injured workers in accordance with this chapter.

18         (m)(f)  "Service area" means the agency-approved

19  geographic area within which an insurer is authorized to offer

20  a workers' compensation managed care arrangement.

21         (n)(g)  "Workers' compensation managed care

22  arrangement" means an arrangement under which a provider of

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

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

25  care facilities, an insurer that has an exclusive provider

26  organization approved under s. 627.6472 or a health

27  maintenance organization licensed under part I of chapter 641

28  has entered into a written agreement directly or indirectly

29  with an insurer to provide and to manage appropriate remedial

30  treatment, care, and attendance to injured workers in

31  accordance with this chapter.

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

  2  authorize an insurer to offer or utilize a workers'

  3  compensation managed care arrangement after the insurer files

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

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

  6  the applicant has the ability to provide quality of care

  7  consistent with the prevailing professional standards of care

  8  and the insurer and its workers' compensation managed care

  9  arrangement otherwise meets the requirements of this section.

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

11  managed care arrangement without such authorization. The

12  authorization, unless sooner suspended or revoked, shall

13  automatically expire 2 years after the date of issuance unless

14  renewed by the insurer. The authorization shall be renewed

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

16  $1,000, provided that the insurer is in compliance with the

17  requirements of this section and any rules adopted hereunder.

18  An application for renewal of the authorization shall be made

19  90 days prior to expiration of the authorization, on forms

20  provided by the agency. The renewal application shall not

21  require the resubmission of any documents previously filed

22  with the agency if such documents have remained valid and

23  unchanged since their original filing.

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

25  subject to the limitations specified elsewhere in this

26  chapter, furnish to the employee solely through managed care

27  arrangements such medically necessary remedial treatment,

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

29  injury or the process of recovery requires.

30         Notwithstanding this subsection, employers who

31  self-insure pursuant to s. 440.38 may opt out of mandatory

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  1  managed care arrangements and this section by providing such

  2  medically necessary remedial treatment, care, and attendance

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

  4  recovery requires, as specified by s. 440.13. Nothing in this

  5  section shall be construed to prevent an employer who has

  6  self-insured pursuant to s. 440.38 from using managed care

  7  arrangements to provide treatment to such employer's employees

  8  if the employer so chooses.

  9         (10)  Written procedures and methods for the management

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

11  coordinator or a certified case manager, including:

12         (a)  The mechanism for assuring that covered employees

13  receive all initial covered services from a primary care

14  provider participating in the provider network, except for

15  emergency care.

16         (b)  The mechanism for assuring that all continuing

17  covered services be received from the same primary care

18  provider participating in the provider network that provided

19  the initial covered services, except when services from

20  another provider are authorized by the medical care

21  coordinator or certified case manager pursuant to paragraph

22  (d).

23         (c)  The policies and procedures for allowing an

24  employee one change to another provider within the same

25  specialty and provider network as the authorized treating

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

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

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

29  special provision be made for more than one such referral

30  through the arrangement's grievance procedures.

31

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  1         (d)  The process for assuring that all referrals

  2  authorized by a medical care coordinator or certified case

  3  manager are made to the participating network providers,

  4  unless medically necessary treatment, care, and attendance are

  5  not available and accessible to the injured worker in the

  6  provider network.

  7

  8  The division shall establish by rule the minimum

  9  qualifications to be designated as a certified case manager.

10  Until the division adopts such rule, a registered nurse

11  licensed under chapter 464 or a graduate of a medical school

12  accredited by the American Medical Association, who has had at

13  least one year of experience as a case manager in workers'

14  compensation or a similar environment shall be qualified to

15  perform the duties of a certified case manager.

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

17  arrangement must have and use procedures for hearing

18  complaints and resolving written grievances from injured

19  workers and health care providers. The procedures must be

20  aimed at mutual agreement for settlement and may include

21  arbitration procedures. Procedures provided herein are in

22  addition to other procedures contained in this chapter.

23         (b)  The grievance procedure must be described in

24  writing and provided to the affected workers and health care

25  providers.

26         (c)  Informal grievances shall be initiated and

27  concluded within 7 calendar days unless the parties and the

28  managed care arrangement mutually agree to an extension. The

29  7-day period shall commence upon telephone or personal contact

30  by the employee, provider, the agency, or the division. If the

31  informal grievance remains unresolved, the managed care

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  1  arrangement shall notify the party of the result in writing

  2  and advise the party of the right to initiate a formal

  3  grievance. The written notification shall include the name,

  4  address, and telephone number of the contact person

  5  responsible for initiating the formal grievance. In addition,

  6  the managed care arrangement shall advise the employee to

  7  contact the Employee Assistance and Ombudsman Office for

  8  additional information on rights and responsibilities and the

  9  dispute resolution process under the Florida Workers'

10  Compensation Law.

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

12  in the dispute resolution process, the managed care grievance

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

14  the formal grievance to the division's Employee Assistance and

15  Ombudsman Office. For purposes of this paragraph, the address

16  of the Employee Assistance and Ombudsman Office shall be Post

17  Office Box 8010, Tallahassee, Florida 32314-8010. Formal

18  grievances shall be concluded within 30 days after receipt by

19  the managed care arrangement of the grievance unless the

20  employee or provider and the managed care arrangement mutually

21  agree to an extension. If the grievance involves the

22  collection of information outside the service area, the

23  managed care arrangement shall have an additional 15 calendar

24  days to process the formal grievance. The managed care

25  arrangement shall notify the employee in writing that

26  additional information is required to complete review of the

27  grievance and that a maximum of 45 days will be allowed for

28  such review. Within 5 business days after receiving the

29  grievance, the managed care arrangement shall notify the party

30  of such requirements in writing.

31

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  1         (e)  The managed care arrangement shall provide written

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

  3  under s. 440.191 with the division, upon completion of the

  4  formal grievance procedure if the issues are not resolved to

  5  the satisfaction of both parties. The managed care arrangement

  6  shall provide a copy of the final decision letter from the

  7  managed care arrangement regarding the grievance to the

  8  employer, the carrier, and the division on upon request.

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

10  care arrangement is implemented, the insurer must provide

11  detailed information to workers and health care providers

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

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

14  manner and must be transmitted to appropriate decisionmakers

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

16  corrective action.

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

18  action must be taken promptly.

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

20  results of a grievance.

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

22  March 31, to the agency regarding its grievance procedure

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

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

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

26  subject, nature, and resolution of such grievances.

27         (25)  Injuries which require medical treatment for

28  which charges will be incurred, whether or not they are

29  reported to the carrier, but which do not disable the employee

30  for more than 7 days as a result of the injury shall not be

31

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  1  used by the Agency for Health Care Administration in

  2  determining insurer compliance with this section.

  3         Section 9.  Subsection (1) of section 440.14, Florida

  4  Statutes, is amended to read:

  5         440.14  Determination of pay.--

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

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

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

  9  compensation and shall be determined, subject to the

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

11         (a)  If the injured employee has been employed by the

12  employer for at least worked in the employment in which she or

13  he was working at the time of the injury, whether for the same

14  or another employer, during substantially the whole of 13

15  consecutive weeks immediately preceding the date of injury,

16  full time or part time, her or his average weekly wage shall

17  be one-thirteenth of the total amount of wages earned in such

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

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

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

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

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

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

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

25  such period considered as a whole.

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

27  employment during substantially the whole of 13 consecutive

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

29  employee in the same employment who has worked substantially

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

31  the determination under the preceding paragraph.

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

  2  foregoing method cannot be fairly applied in determining the

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

  4  13 weeks immediately preceding the injury, the calendar year

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

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

  7  reasonable and fairer than the method set forth in paragraphs

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

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

10  employer shall have 30 days following the receipt of this

11  written proof to adjust the compensation rate, including the

12  making of any additional payment due for prior weekly

13  payments, based on the lower rate compensation.

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

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

16  injured employee shall be used, except as otherwise provided

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

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

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

20  conditions her or his wages should be expected to increase

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

22  arriving at her or his average weekly wages.

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

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

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

26  under normal working conditions she or he probably would have

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

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

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

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

31

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

  2  similar employee in the same employment.

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

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

  5  determined by dividing the weekly compensation rate by the

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

  7  each day.

  8         (g)  Any issue relating to average weekly wages shall

  9  not be subject to attorney's fees. If an attorney is

10  necessary, the employee shall be represented by an attorney as

11  provided in s. 440.191.

12         (h)  If the employee's employment has been irregular or

13  the employee has lost time from work immediately preceding the

14  injury because of illness, weather, or any other cause beyond

15  the control of the employee, the employee's actual wages

16  earned shall be used.

17         Section 10.  Subsections (1), (2), (3), and (4) and

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

19  Statutes, are amended to read:

20         440.15  Compensation for disability.--Compensation for

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

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

23         (1)  PERMANENT TOTAL DISABILITY.--

24         (a)  In case of total disability adjudged to be

25  permanent, 66 2/3  percent of the average weekly wages shall

26  be paid to the employee during the continuance of such total

27  disability.

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

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

30  earning capacity, constitute permanent total disability. Only

31  claimants with catastrophic injuries or any other compensable

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  1  injury of a nature and severity that prevents the employee

  2  from being able to perform his or her prior work, or any work

  3  which is available in substantial numbers within the national

  4  economy, are eligible for permanent total benefits. If the

  5  employee is engaged in, or is physically capable of engaging

  6  in, any gainful employment, including sheltered employment,

  7  the employee shall not be entitled to permanent total

  8  disability. The burden shall be on the employee to establish

  9  that he or she is not able to perform, due to physical

10  limitations, at least part-time sedentary work available

11  within a 100 mile radius of the employee's residence. In no

12  other case may permanent total disability be awarded.

13         (c)  In cases of permanent total disability resulting

14  from injuries that occurred prior to July 1, 1955, such

15  payments shall not be made in excess of 700 weeks.

16         (d)1.  If an employee who is being paid compensation

17  for permanent total disability becomes rehabilitated to the

18  extent that she or he establishes an earning capacity, the

19  employee shall be paid, instead of the compensation provided

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

21  division shall adopt rules to enable a permanently and totally

22  disabled employee who may have reestablished an earning

23  capacity to undertake a trial period of reemployment without

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

25  case that such employee is unable to sustain an earning

26  capacity.

27         2.  Entitlement to permanent total disability payments

28  shall cease at age 70.

29         (e)1.  The employer's or carrier's right to conduct

30  vocational evaluations or testing pursuant to s. 440.491

31  continues even after the employee has been accepted or

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  1  adjudicated as entitled to compensation under this chapter.

  2  This right includes, but is not limited to, instances in which

  3  such evaluations or tests are recommended by a treating

  4  physician or independent medical-examination physician,

  5  instances warranted by a change in the employee's medical

  6  condition, or instances in which the employee appears to be

  7  making appropriate progress in recuperation. This right may

  8  not be exercised more than once every calendar year.

  9         2.  The carrier must confirm the scheduling of the

10  vocational evaluation or testing in writing, and must notify

11  employee's counsel, if any, at least 7 days before the date on

12  which vocational evaluation or testing is scheduled to occur.

13         3.  Pursuant to an order of the judge of compensation

14  claims, the employer or carrier may withhold payment of

15  benefits for permanent total disability or supplements for any

16  period during which the employee willfully fails or refuses to

17  appear without good cause for the scheduled vocational

18  evaluation or testing.

19         (f)1.  If permanent total disability results from

20  injuries that occurred subsequent to June 30, 1955, and for

21  which the liability of the employer for compensation has not

22  been discharged under s. 440.20(12), the injured employee

23  shall receive additional weekly compensation benefits equal to

24  5 percent of her or his weekly compensation rate, as

25  established pursuant to the law in effect on the date of her

26  or his injury, multiplied by the number of calendar years

27  since the date of injury. The weekly compensation payable and

28  the additional benefits payable under this paragraph, when

29  combined, may not exceed the maximum weekly compensation rate

30  in effect at the time of payment as determined pursuant to s.

31  440.12(2). Entitlement to these supplemental payments shall

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  1  cease at age 62 if the employee is eligible for social

  2  security benefits under 42 U.S.C. ss. 402 and 423, whether or

  3  not the employee has applied for such benefits. These

  4  supplemental benefits shall be paid by the division out of the

  5  Workers' Compensation Administration Trust Fund when the

  6  injury occurred subsequent to June 30, 1955, and before July

  7  1, 1984. These supplemental benefits shall be paid by the

  8  employer when the injury occurred on or after July 1, 1984.

  9  Supplemental benefits are not payable for any period prior to

10  October 1, 1974.

11         2.a.  The division shall provide by rule for the

12  periodic reporting to the division of all earnings of any

13  nature and social security income by the injured employee

14  entitled to or claiming additional compensation under

15  subparagraph 1. Neither the division nor the employer or

16  carrier shall make any payment of those additional benefits

17  provided by subparagraph 1. for any period during which the

18  employee willfully fails or refuses to report upon request by

19  the division in the manner prescribed by such rules.

20         b.  The division shall provide by rule for the periodic

21  reporting to the employer or carrier of all earnings of any

22  nature and social security income by the injured employee

23  entitled to or claiming benefits for permanent total

24  disability. The employer or carrier is not required to make

25  any payment of benefits for permanent total disability for any

26  period during which the employee willfully fails or refuses to

27  report upon request by the employer or carrier in the manner

28  prescribed by such rules or if any employee who is receiving

29  permanent total disability benefits refuses to apply for or

30  cooperate with the employer or carrier in applying for social

31  security benefits.

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  1         3.  When an injured employee receives a full or partial

  2  lump-sum advance of the employee's permanent total disability

  3  compensation benefits, the employee's benefits under this

  4  paragraph shall be computed on the employee's weekly

  5  compensation rate as reduced by the lump-sum advance.

  6         (2)  TEMPORARY TOTAL DISABILITY.--

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

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

  9  wages shall be paid to the employee during the continuance

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

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

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

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

14  reaches the date of maximum medical improvement, whichever

15  occurs earlier, temporary disability benefits shall cease and

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

17         (b)  Notwithstanding the provisions of paragraph (a),

18  an employee who has sustained the loss of an arm, leg, hand,

19  or foot, has been rendered a paraplegic, paraparetic,

20  quadriplegic, or quadriparetic, or has lost the sight of both

21  eyes shall be paid temporary total disability of 80 percent of

22  her or his average weekly wage. The increased temporary total

23  disability compensation provided for in this paragraph must

24  not extend beyond 6 months from the date of the accident. The

25  compensation provided by this paragraph is not subject to the

26  limits provided in s. 440.12(2), but instead is subject to a

27  maximum weekly compensation rate of $700. If, at the

28  conclusion of this period of increased temporary total

29  disability compensation, the employee is still temporarily

30  totally disabled, the employee shall continue to receive

31  temporary total disability compensation as set forth in

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  1  paragraphs (a) and (c). The period of time the employee has

  2  received this increased compensation will be counted as part

  3  of, and not in addition to, the maximum periods of time for

  4  which the employee is entitled to compensation under paragraph

  5  (a) but not paragraph (c).

  6         (c)  Temporary total disability benefits paid pursuant

  7  to this subsection shall include such period as may be

  8  reasonably necessary for training in the use of artificial

  9  members and appliances, and shall include such period as the

10  employee may be receiving training and education under a

11  program pursuant to s. 440.49(1). Notwithstanding s.

12  440.02(8), the date of maximum medical improvement for

13  purposes of paragraph (3)(b) shall be no earlier than the last

14  day for which such temporary disability benefits are paid.

15         (d)  The division shall, by rule, provide for the

16  periodic reporting to the division, employer, or carrier of

17  all earned income, including income from social security, by

18  the injured employee who is entitled to or claiming benefits

19  for temporary total disability. The employer or carrier is not

20  required to make any payment of benefits for temporary total

21  disability for any period during which the employee willfully

22  fails or refuses to report upon request by the employer or

23  carrier in the manner prescribed by the rules. The rule must

24  require the claimant to personally sign the claim form and

25  attest that she or he has reviewed, understands, and

26  acknowledges the foregoing.

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

28         (a)  Impairment benefits.--

29         1.  In case of permanent impairment due to amputation,

30  loss of 80 percent or more of vision of either eye, after

31  correction, or serious facial or head disfigurement resulting

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  1  from an injury other than an injury entitling the injured

  2  worker to permanent total disability benefits pursuant to

  3  subsection (1), the following amounts shall be paid to the

  4  injured worker:

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

  6  permanent impairment of the body as a whole from 1 percent

  7  through 10 percent; and

  8         b.  Five hundred dollars for each percent of permanent

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

10  of 10 percent.

11         2.1.  Once the employee has reached the date of maximum

12  medical improvement, impairment benefits are due and payable

13  within 20 days after the carrier has knowledge of the

14  impairment.

15         3.2.  The three-member panel, in cooperation with the

16  division, shall establish and use a uniform permanent

17  impairment rating schedule. This schedule must be based on

18  medically or scientifically demonstrable findings as well as

19  the systems and criteria set forth in the American Medical

20  Association's Guides to the Evaluation of Permanent

21  Impairment; the Snellen Charts, published by American Medical

22  Association Committee for Eye Injuries; and the Minnesota

23  Department of Labor and Industry Disability Schedules. The

24  schedule should be based upon objective findings. The schedule

25  shall be more comprehensive than the AMA Guides to the

26  Evaluation of Permanent Impairment and shall expand the areas

27  already addressed and address additional areas not currently

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

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

30  Evaluation of Permanent Impairment, copyright 1977, 1971,

31  1988, by the American Medical Association, shall be the

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

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

  3  division rule of a uniform disability rating schedule, the

  4  Minnesota Department of Labor and Industry Disability Schedule

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

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

  7  Impairment by the American Medical Association shall be used.

  8  Determination of permanent impairment under this schedule must

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

10  osteopathic medicine licensed under chapters 458 and 459, a

11  chiropractor licensed under chapter 460, a podiatrist licensed

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

13  or a dentist licensed under chapter 466, as appropriate

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

15  authorized to render opinions regarding the existence of or

16  the extent of permanent impairment.

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

18  impairment rating using the impairment schedule referred to in

19  subparagraph 2. Impairment income benefits are paid weekly at

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

21  temporary total disability benefit not to exceed the maximum

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

23  impairment income benefits begins the day after the employee

24  reaches maximum medical improvement or the expiration of

25  temporary benefits, whichever occurs earlier, and continues

26  until the earlier of:

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

28  3 weeks for each percentage point of impairment; or

29         b.  The death of the employee.

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

31  as having reached maximum medical improvement or 6 weeks

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  1  before the expiration of temporary benefits, whichever occurs

  2  earlier, the certifying doctor shall evaluate the condition of

  3  the employee and assign an impairment rating, using the

  4  impairment schedule referred to in subparagraph 2.

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

  6  emotional injury arising out of depression from being out of

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

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

  9  certification and evaluation must be submitted to the treating

10  doctor, and the treating doctor must indicate agreement or

11  disagreement with the certification and evaluation. The

12  certifying doctor shall issue a written report to the

13  division, the employee, and the carrier certifying that

14  maximum medical improvement has been reached, stating the

15  impairment rating, and providing any other information

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

17  certified as having reached maximum medical improvement before

18  the expiration of 102 weeks after the date temporary total

19  disability benefits begin to accrue, the carrier shall notify

20  the treating doctor of the requirements of this section.

21         5.  During the period that wage-loss benefits are being

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

23  least annually whether any extended unemployment or

24  underemployment is a direct result of the employee's

25  impairment. To accomplish this purpose, the division may

26  require periodic reports from the employee and the carrier,

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

28  other examinations, vocational assessments, or other tests or

29  diagnoses necessary to verify that the carrier is performing

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

31  employee and the carrier may each request that the division

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  1  review the status of the employee and determine whether the

  2  carrier has performed its duty with respect to whether the

  3  employee's unemployment or underemployment is a direct result

  4  of impairment from the compensable injury. The carrier shall

  5  pay the employee impairment income benefits for a period based

  6  on the impairment rating.

  7         (b)  Wage-loss Supplemental benefits.--

  8         1.  Each injured worker who suffers a permanent

  9  impairment, which permanent impairment is determined, pursuant

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

11  not to be based solely on subjective complaints and results in

12  one or more work-related physical restrictions which are

13  directly attributable to the injury, may be entitled to

14  wage-loss benefits under this subsection, provided such

15  permanent impairment results in a work-related physical

16  restriction which affects such employee's ability to perform

17  the activities of his or her usual or other appropriate

18  employment. Such benefits shall be based on actual wage loss

19  and shall not be subject to the minimum compensation rate set

20  forth in s. 440.12(2). Subject to the maximum compensation

21  rate as set forth in s. 440.12(2), such wage-loss benefits

22  shall be equal to 80 percent of the difference between 80

23  percent of the employee's average weekly wage and the salary,

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

25  after reaching maximum medical improvement, compared weekly,

26  however, the weekly wage-loss benefits shall not exceed an

27  amount equal to 66 2/3 percent of the employee's average

28  weekly wage at the time of injury. In determining the amount

29  the employee is able to earn in any month after injury,

30  commissions and similar irregular payments shall be allocated

31  first to the week in which they are received, in an amount

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  1  which when added to other earnings for such week does not

  2  exceed the employee's average weekly wage, and the balance in

  3  the same manner to subsequent weeks until fully allocated, but

  4  not to exceed 52 weeks from the week that the commission or a

  5  similar irregular payment was received. 

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

  7  other remunerations the employee is able to earn after

  8  reaching the date of maximum medical improvement shall in no

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

10  employee, including earnings from sheltered employment. In the

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

12  income or who has not failed to accept employment commensurate

13  with his or her abilities or who was not terminated from

14  employment due to his or her own misconduct, and who has made

15  a good faith attempt to find employment where employment

16  actually exists after attaining maximum medical improvement

17  but remains unemployed, it shall be presumed that the salary,

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

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

20  to find employment within his or her physical and vocational

21  capabilities. Wage-loss forms and job search reports shall be

22  mailed to the employer, carrier, or servicing agent within 14

23  days after the time benefits are due. Failure of an employee

24  to timely request benefits and file the appropriate job search

25  forms showing that he or she looked for a minimum of 5 jobs

26  where employment was actually available in each biweekly

27  period after the employee knew that a job search was required,

28  whether he or she has been advised by the employer, carrier,

29  servicing agent, or his or her attorney, shall result in

30  benefits not being payable during the time the employee fails

31  to timely file his or her request for wage-loss benefits and

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  1  the job search reports. However, beginning on the 13th week

  2  after the employee has attained maximum medical improvement,

  3  if an employee does not obtain and maintain employment, the

  4  employer may show that the salary, wages, and other

  5  remuneration the employee is able to earn is greater than zero

  6  by proving the existence of actual job openings within a

  7  reasonable geographical area which the employee is physically

  8  and vocationally capable of performing, in which case the

  9  amount the employee is able to earn may be deemed to be the

10  amount that the employee could earn in such jobs. Such amount

11  shall be applied against the next three biweekly payments.

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

13  any period during which such worker was unemployed shall make

14  reasonable and good faith efforts to obtain suitable gainful

15  employment where employment actually exists, on a consistent

16  basis. "Suitable gainful employment" means employment which is

17  reasonably attainable in consideration of the individual's

18  age, education, personal aptitudes, previous vocational

19  experience, and physical abilities. For any such period, the

20  employer may require the injured worker's request for

21  wage-loss benefits to include verification of the injured

22  worker's efforts to obtain suitable gainful employment, which

23  verification shall be made on forms prescribed by the

24  division. In determining whether the injured worker has made

25  reasonable and good faith efforts to obtain suitable gainful

26  employment, the judge of compensation claims shall consider

27  the availability of suitable employment in the area of the

28  injured worker's residence, the injured worker's access to

29  transportation, and the effect of the injured worker's

30  physical impairment upon his or her ability to conduct job

31  search activities. Whenever a wage-loss benefit may be

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  1  payable, the burden shall be on the employee to establish that

  2  any wage loss claimed is the result of the compensable injury.

  3  The employee also has the burden of showing that his or her

  4  inability to obtain employment or to earn as much as he or she

  5  earned at the time of his or her industrial accident is due to

  6  physical limitation related to his or her accident and not due

  7  to economic conditions, the unavailability of employment, or

  8  his or her own misconduct. Unless otherwise provided under

  9  this section, an injured worker requesting wage-loss benefits

10  for any period during which he or she has been unemployed

11  shall not be entitled to such benefits if the injured worker

12  failed or refused to make reasonable and good faith efforts to

13  obtain suitable gainful employment during such period.

14         4.  The right to wage-loss benefits shall terminate

15  upon the occurrence of the earliest of the following:

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

17  time subsequent to the month when the injured employee reaches

18  the date of maximum medical improvement, unless during such

19  1-year period wage-loss benefits shall have been payable

20  during at least 3 consecutive months. Such limitation period

21  shall not be tolled or extended by the incarceration of the

22  employee or by virtue of the employee becoming an inmate of a

23  penal institution.

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

25  350 weeks after the injured employee reaches the date of

26  maximum medical improvement.

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

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

29  reaches maximum medical improvement.

30

31

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

  2  employee's eligibility for wage-loss benefits shall be

  3  determined according to the following schedule:

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

  5  impairment ratings up to and including 3 percent.

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

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

  8  percent.

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

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

11  percent.

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

13  permanent impairment ratings greater than 9 and up to and

14  including 12 percent.

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

16  permanent impairment ratings greater than 12 percent and up to

17  and including 15 percent.

18         (VI)  One hundred and forty weeks of eligibility for

19  permanent impairment ratings greater than 15 percent and up to

20  and including 18 percent.

21         (VII)  One hundred and eighty weeks of eligibility for

22  permanent impairment ratings greater than 18 and up to and

23  including 21 percent.

24         (VIII)  One hundred and ninety weeks of eligibility for

25  permanent impairment ratings greater than 21 percent and up to

26  and including 24 percent.

27         (IX)  Two hundred weeks of eligibility for permanent

28  impairment ratings greater than 24 percent.

29         5.  Notwithstanding subparagraph 4., the right to

30  wage-loss benefits shall terminate if there are three

31  occurrences of any of the following incidents:

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  1         a.  The employee voluntarily terminates his or her

  2  employment for any reason unrelated to his or her compensable

  3  injury.

  4         b.  The employee refuses an offer of suitable or

  5  reasonable employment within his or her restrictions and

  6  abilities.

  7         c.  The employee is terminated from employment due to

  8  his or her own misconduct as such misconduct as defined in s.

  9  440.02(16).

10         d.  The employee voluntarily limits his or her income.

11

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

13  period. Additionally, for each of the three 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 shall terminate if

17  an employee is convicted of conduct punishable under s.

18  775.082 or s. 775.083 or is subjected to imprisonment under

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

20  perform the activities of his or her usual or other

21  appropriate employment. For purposes of this subparagraph,

22  "convicted" means an adjudication of guilt by a court of

23  competent jurisdiction, a plea of guilty or nolo contendere,

24  or a jury verdict of guilty when adjudication of guilt is

25  withheld and the accused is placed on probation.

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

27  70.

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

29  aliens or an employee who does not have the required documents

30  to work in the United States.

31

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

  2  benefits and social security retirement benefits under 42

  3  U.S.C., ss. 402 and 405, such social security retirement

  4  benefits shall be primary and the wage-loss benefits shall be

  5  supplemental only. The sum of both benefits shall not exceed

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

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

  8  pursuant to sub-subparagraph 4.a., the term "payable" shall be

  9  construed to include payment of social security retirement

10  benefits in lieu of wage-loss benefits.

11         1.  All supplemental benefits must be paid in

12  accordance with this subsection. An employee is entitled to

13  supplemental benefits as provided in this paragraph as of the

14  expiration of the impairment period, if:

15         a.  The employee has an impairment rating from the

16  compensable injury of 20 percent or more as determined

17  pursuant to this chapter;

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

19  returned to work earning less than 80 percent of the

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

21  employee's impairment; and

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

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

24         2.  If an employee is not entitled to supplemental

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

26  income benefit because the employee is earning at least 80

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

28  may become entitled to supplemental benefits at any time

29  within 1 year after the impairment income benefit period ends

30  if:

31

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

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

  3  at least 90 days;

  4         b.  The employee meets the other requirements of

  5  subparagraph 1.; and

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

  7  result of the employee's impairment from the compensable

  8  injury.

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

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

11  at least 90 days during which the employee is receiving

12  supplemental benefits, the employee ceases to be entitled to

13  supplemental benefits for the filing period. Supplemental

14  benefits that have been terminated shall be reinstated when

15  the employee satisfies the conditions enumerated in

16  subparagraph 2. and files the statement required under

17  subparagraph 5. Notwithstanding any other provision, if an

18  employee is not entitled to supplemental benefits for 12

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

20  additional income benefits for the compensable injury. If the

21  employee is discharged within 12 months after losing

22  entitlement under this subsection, benefits may be reinstated

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

24  deprive the employee of supplemental benefits.

25         4.  During the period that impairment income benefits

26  or supplemental income benefits are being paid, the carrier

27  has the affirmative duty to determine at least annually

28  whether any extended unemployment or underemployment is a

29  direct result of the employee's impairment. To accomplish this

30  purpose, the division may require periodic reports from the

31  employee and the carrier, and it may, at the carrier's

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  1  expense, require any physical or other examinations,

  2  vocational assessments, or other tests or diagnoses necessary

  3  to verify that the carrier is performing its duty. Not more

  4  than once in each 12 calendar months, the employee and the

  5  carrier may each request that the division review the status

  6  of the employee and determine whether the carrier has

  7  performed its duty with respect to whether the employee's

  8  unemployment or underemployment is a direct result of

  9  impairment from the compensable injury.

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

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  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, impairment and wage-loss supplemental income

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

19  temporary partial wage-loss benefits, impairment income

20  benefits, and wage-loss supplemental benefits terminates on

21  the expiration of 400 401 weeks after the date of injury,

22  except as provided in subsection (7).

23         (4)  TEMPORARY PARTIAL DISABILITY.--

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

25  shall be based upon actual wage loss and shall not be subject

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

27  The compensation shall be equal to 80 percent of the

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

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

30  employee is able to earn, as compared weekly; however, the

31  weekly wage-loss benefits shall may not exceed an amount equal

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  1  to 66 2/3  percent of the employee's average weekly wage at

  2  the time of injury. In order to simplify the comparison of the

  3  preinjury average weekly wage with the salary, wages, and

  4  other remuneration the employee is able to earn, the division

  5  may by rule provide for the modification of the weekly

  6  comparison so as to coincide as closely as possible with the

  7  injured worker's pay periods. The amount determined to be the

  8  salary, wages, and other remuneration the employee is able to

  9  earn shall in no case be less than the sum actually being

10  earned by the employee, including earnings from sheltered

11  employment.

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

13  set forth in paragraph (a) may be payable, the employee has

14  the burden of establishing that any wage loss claimed is the

15  result of the compensable injury. The employee shall also have

16  the burden of showing that his or her inability to obtain

17  employment or to earn as much as he or she earned at the time

18  of his or her industrial accident is due to physical

19  limitation related to his or her accident and not because of

20  economic conditions, the unavailability of employment or his

21  or her own misconduct. Wage-loss forms and job search reports

22  shall be mailed to the employer, carrier, or servicing agent

23  within l4 days after such benefits are due. Failure of an

24  employee to timely request benefits and file the appropriate

25  job search forms showing that he or she looked for a minimum

26  of 5 jobs where employment was actually available in each

27  biweekly period after the employee knew that a job search was

28  required, whether he or she has been advised by the employer,

29  carrier, servicing agent, or his or her attorney, shall result

30  in benefits not being payable during the time that the

31  employee fails to timely file his or her request for wage-loss

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  1  benefits and the job search reports. If the employee

  2  voluntarily limits his or her income or fails to accept

  3  employment commensurate with his or her abilities, or is

  4  terminated from employment due to his or her own misconduct,

  5  it shall be presumed, in the absence of evidence to the

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

  7  the employee was able to earn, for such period that the

  8  employee voluntarily limited his or her income, failed to

  9  accept employment commensurate with his or her abilities, or

10  was terminated from employment due to his own misconduct, is

11  the amount which would have been earned if the employee had

12  not limited his or her income or failed to accept appropriate

13  employment or had not been terminated from employment due to

14  his or her own misconduct. Such amount shall be applied

15  against the next three biweekly payments. In the case of an

16  employee who has not voluntarily limited his or her income,

17  who has not failed to accept employment commensurate with his

18  or her abilities, or who was not terminated from employment

19  due to his or her own misconduct, and who has made a good

20  faith attempt to find employment where employment exists but

21  remains unemployed, it shall be presumed that the salary,

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

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

24  to find employment within his or her physical and vocational

25  capabilities. However, beginning on the 13th week after the

26  employee has received the first payment of a temporary partial

27  wage-loss benefit, if the employee does not obtain and

28  maintain employment, the employer or carrier may show that the

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

30  earn is greater than zero by proving the existence of actual

31  job openings within a reasonable geographical area which the

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  1  employee is physically and vocationally capable of performing,

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

  3  deemed to be the amount the judge of compensation claims finds

  4  that the employee could earn in such jobs. Such amount shall

  5  be applied against the next three biweekly payments. Such

  6  benefits shall be paid during the continuance of such

  7  disability, not to exceed a period of 104 weeks, as provided

  8  by this subsection and subsection (2). Once the injured

  9  employee reaches the maximum number of weeks, temporary

10  disability benefits cease and the injured worker's permanent

11  impairment must be determined.

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

13  payable to illegal aliens or an employee who does not have the

14  required documents to work in the United States.

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

16  temporary total disability benefits shall be paid during the

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

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

19  benefits shall cease and the injured worker's permanent

20  impairment must be determined.

21         (10)  EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER

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

23  ACT.--

24         (a)  Weekly compensation benefits payable under this

25  chapter for disability resulting from injuries to an employee

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

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

28  benefits payable under this chapter and such total benefits

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

30  his dependents, had such employee not been entitled to

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

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  1  423, does not exceed 80 percent of the employee's average

  2  weekly wage, including the additional average weekly

  3  compensation benefits allowed under paragraph (1)(f). However,

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

  5  benefits under this chapter to a greater extent than such

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

  7  424(a). This reduction of compensation benefits is not

  8  applicable to any compensation benefits payable for any week

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

10  age of 62 years.

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

12  440.191, Florida Statutes, is amended to read:

13         440.191  Employee Assistance and Ombudsman Office.--

14         (2)

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

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

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

18  assistance in resolving the dispute. The employee shall

19  simultaneously notify the employer, the employer's carrier,

20  and the carrier's attorney, if known, in writing of the

21  benefits to which the employee believes he or she is entitled

22  and for which he or she is requesting the assistance of the

23  office. The office shall investigate the dispute and shall

24  attempt to facilitate an agreement between the employee and

25  the employer or carrier. The employee, the employer, and the

26  carrier shall cooperate with the office and shall timely

27  provide the office with any documents or other information

28  that it may require in connection with its efforts under this

29  section.

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

31  Statutes, is amended to read:

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  1         440.192  Procedure for resolving benefit disputes.--

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

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

  4  requested benefits without prejudice to its right to deny

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

  6  of denial with the division. The carrier must list all

  7  benefits requested but not paid and explain its justification

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

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

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

11  compensable, unless it can establish material facts relevant

12  to the issue of compensability that could not have been

13  discovered through reasonable investigation within the 120-day

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

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

16         Section 13.  Subsections (6) and (11) of section

17  440.20, Florida Statutes, are amended to read:

18         440.20  Time for payment of compensation; penalties for

19  late payment.--

20         (6)  If any installment of compensation for death or

21  dependency benefits, disability, permanent impairment, or wage

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

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

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

25  such unpaid installment a punitive penalty of an amount equal

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

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

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

29  or unless such nonpayment results from conditions over which

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

31  of compensation payable without an award has not been paid

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

  2  concludes the prosecution of the claim before a judge of

  3  compensation claims without having specifically claimed

  4  additional compensation in the nature of a penalty under this

  5  section, the claimant will be deemed to have acknowledged

  6  that, owing to conditions over which the employer or carrier

  7  had no control, such installment could not be paid within the

  8  period prescribed for payment and to have waived the right to

  9  claim such penalty. However, during the course of a hearing,

10  the judge of compensation claims shall on her or his own

11  motion raise the question of whether such penalty should be

12  awarded or excused. The division may assess without a hearing

13  the punitive penalty against either the employer or the

14  insurance carrier, depending upon who was at fault in causing

15  the delay. The insurance policy cannot provide that this sum

16  will be paid by the carrier if the division or the judge of

17  compensation claims determines that the punitive penalty

18  should be made by the employer rather than the carrier. Any

19  additional installment of compensation paid by the carrier

20  pursuant to this section shall be paid directly to the

21  employee.

22         (11)(a)  Upon joint petition of all interested parties,

23  a lump-sum payment in exchange for the employer's or carrier's

24  release from liability for future medical expenses, as well as

25  future payments of compensation expenses and any other

26  benefits provided under this chapter, shall be allowed at any

27  time in any case in which the employer or carrier has filed a

28  written notice of denial within 120 days after the date of the

29  injury, and the judge of compensation claims at a hearing to

30  consider the settlement proposal finds a justiciable

31  controversy as to legal or medical compensability of the

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  1  claimed injury or the alleged accident. The employer or

  2  carrier may not pay any attorney's fees on behalf of the

  3  claimant for any settlement under this section unless

  4  expressly authorized elsewhere in this chapter. Upon the joint

  5  petition of all interested parties and after giving due

  6  consideration to the interests of all interested parties, the

  7  judge of compensation claims may enter a compensation order

  8  approving and authorizing the discharge of the liability of

  9  the employer for compensation and remedial treatment, care,

10  and attendance, as well as rehabilitation expenses, by the

11  payment of a lump sum. Such a compensation order so entered

12  upon joint petition of all interested parties is not subject

13  to modification or review under s. 440.28. If the settlement

14  proposal together with supporting evidence is not approved by

15  the judge of compensation claims, it shall be considered void.

16  Upon approval of a lump-sum settlement under this subsection,

17  the judge of compensation claims shall send a report to the

18  Chief Judge of the amount of the settlement and a statement of

19  the nature of the controversy. The Chief Judge shall keep a

20  record of all such reports filed by each judge of compensation

21  claims and shall submit to the Legislature a summary of all

22  such reports filed under this subsection annually by September

23  15.

24         (b)  Upon joint petition of all interested parties, a

25  lump-sum payment in exchange for the employer's or carrier's

26  release from liability for future medical expenses, as well as

27  future payments of compensation and rehabilitation expenses,

28  and any other benefits provided under this chapter, may be

29  allowed at any time in any case after the injured employee has

30  attained maximum medical improvement. When the claimant is

31  represented by counsel, final approval of the lump-sum

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  1  settlement agreement, as provided for in a joint petition and

  2  stipulation, shall be approved by entry of an order within 7

  3  days after the filing of such joint petition and stipulation

  4  without a hearing, unless the judge of compensation claims

  5  determines, in his or her discretion, that additional

  6  testimony is needed before such settlement can be approved or

  7  disapproved and so notifies the parties. In hearings conducted

  8  for purposes of approving or disapproving a lump-sum

  9  settlement agreement, the judge of compensation claims shall

10  allow any party to appear by telephone unless circumstances,

11  in the judge's discretion, require live testimony and shall

12  also give consideration to other means by which the economic

13  burden on parties may be minimized. An employer or carrier may

14  not pay any attorney's fees on behalf of the claimant for any

15  settlement, unless expressly authorized elsewhere in this

16  chapter. A compensation order so entered upon joint petition

17  of all interested parties shall not be subject to modification

18  or review under s. 440.28. However, a judge of compensation

19  claims is not required to approve any award for lump-sum

20  payment when it is determined by the judge of compensation

21  claims that the payment being made is in excess of the value

22  of benefits the claimant would be entitled to under this

23  chapter. The judge of compensation claims shall make or cause

24  to be made such investigations as she or he considers

25  necessary, in each case in which the parties have stipulated

26  that a proposed final settlement of liability of the employer

27  for compensation shall not be subject to modification or

28  review under s. 440.28, to determine whether such final

29  disposition will definitely aid the rehabilitation of the

30  injured worker or otherwise is clearly for the best interests

31  of the person entitled to compensation and, in her or his

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  1  discretion, may have an investigation made by the

  2  Rehabilitation Section of the Division of Workers'

  3  Compensation. The joint petition and the report of any

  4  investigation so made will be deemed a part of the proceeding.

  5  An employer shall have the right to appear at any hearing

  6  pursuant to this subsection which relates to the discharge of

  7  such employer's liability and to present testimony at such

  8  hearing. The carrier shall provide reasonable notice to the

  9  employer of the time and date of any such hearing and inform

10  the employer of her or his rights to appear and testify. When

11  the claimant is represented by counsel or when the claimant

12  and carrier or employer are represented by counsel, final

13  approval of the lump-sum settlement agreement, as provided for

14  in a joint petition and stipulation, shall be approved by

15  entry of an order within 7 days after the filing of such joint

16  petition and stipulation without a hearing, unless the judge

17  of compensation claims determines, in her or his discretion,

18  that additional testimony is needed before such settlement can

19  be approved or disapproved and so notifies the parties. The

20  probability of the death of the injured employee or other

21  person entitled to compensation before the expiration of the

22  period during which such person is entitled to compensation

23  shall, in the absence of special circumstances making such

24  course improper, be determined in accordance with the most

25  recent United States Life Tables published by the National

26  Office of Vital Statistics of the United States Department of

27  Health and Human Services. The probability of the happening of

28  any other contingency affecting the amount or duration of the

29  compensation, except the possibility of the remarriage of a

30  surviving spouse, shall be disregarded. As a condition of

31  approving a lump-sum payment to a surviving spouse, the judge

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  1  of compensation claims, in the judge of compensation claims'

  2  discretion, may require security which will ensure that, in

  3  the event of the remarriage of such surviving spouse, any

  4  unaccrued future payments so paid may be recovered or recouped

  5  by the employer or carrier. Such applications shall be

  6  considered and determined in accordance with s. 440.25.

  7         (c)  This section applies to all claims that the

  8  parties have not previously settled, regardless of the date of

  9  accident.

10         Section 14.  Section 440.34, Florida Statutes, is

11  amended to read:

12         440.34  Attorney's fees; costs.--

13         (1)  A fee, gratuity, or other consideration may not be

14  paid for services rendered for a claimant in connection with

15  any proceedings arising under this chapter, unless approved as

16  reasonable by the judge of compensation claims or court having

17  jurisdiction over such proceedings. Except as provided by this

18  subsection, any attorney's fee approved by a judge of

19  compensation claims for services rendered to a claimant must

20  equal to 20 percent of the first $5,000 of the amount of the

21  benefits actually paid pursuant to an order or joint

22  stipulation secured, 15 percent of the next $5,000 of the

23  amount of the benefits actually paid pursuant to an order or a

24  joint stipulation secured, 10 percent of the remaining amount

25  of the benefits actually paid pursuant to an order or a joint

26  stipulation secured to be provided during the first 10 years

27  after the date the claim is filed, and 5 percent of the

28  benefits actually paid pursuant to an order or a joint

29  stipulation secured after 10 years. However, the judge of

30  compensation claims shall consider the following factors in

31  each case and may increase or decrease the attorney's fee if,

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  1  in her or his judgment, the circumstances of the particular

  2  case warrant such action:

  3         (a)  The time and labor required, the novelty and

  4  difficulty of the questions involved, and the skill requisite

  5  to perform the legal service properly.

  6         (b)  The fee customarily charged in the locality for

  7  similar legal services.

  8         (c)  The amount involved in the controversy and the

  9  benefits resulting to the claimant.

10         (d)  The time limitation imposed by the claimant or the

11  circumstances.

12         (e)  The experience, reputation, and ability of the

13  lawyer or lawyers performing services.

14         (f)  The contingency or certainty of a fee.

15         (2)  Under no circumstances shall an attorney's fee be

16  awarded except on a contingency basis. Calculation of attorney

17  fees based on an hourly rate is prohibited.

18         (3)  No prejudgment or postjudgment interest shall be

19  included in attorney fees awarded pursuant to this section.

20         (4)  The employee shall be given notice of the attorney

21  fee hearing and shall have the right to testify at such

22  hearing. The employee shall receive a copy of any stipulation

23  or order awarding attorney fees.

24         (5)(2)  In awarding a reasonable claimant's attorney's

25  fee, the judge of compensation claims shall consider only

26  those benefits to the claimant that the attorney is

27  responsible pursuant to an order or joint stipulation for

28  securing. The amount, statutory basis, and type of benefits

29  obtained through legal representation shall be listed on all

30  attorney's fees awarded by the judge of compensation claims.

31  For purposes of this section, the term "benefits paid secured"

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  1  means benefits obtained as a result of the claimant's

  2  attorney's legal services rendered in connection with the

  3  petition claim for benefits. However, such term does not

  4  include future medical benefits to be provided on any date

  5  more than 5 years after the date the petition claim is filed.

  6         (6)(3)  If the claimant should prevail in any

  7  proceedings before a judge of compensation claims or court,

  8  there shall be taxed against the employer the reasonable costs

  9  of such proceedings, not to include the attorney's fees of the

10  claimant. A claimant shall be responsible for the payment of

11  her or his own attorney's fees, except that a claimant shall

12  be entitled to recover a reasonable attorney's fee from a

13  carrier or employer:

14         (a)  Against whom she or he successfully asserts a

15  petition claim for medical benefits only, of an amount of at

16  least $1,000, if the claimant has not filed or is not entitled

17  to file at such time a petition claim for disability,

18  permanent impairment, wage-loss, or death benefits, arising

19  out of the same accident; or

20         (b)  In any case in which the employer or carrier files

21  a notice of denial, which notice denies the benefits

22  sought,with the division and the injured person has employed

23  an attorney in the successful prosecution of the petition,

24  except on issues as to the average weekly wage claim; or

25         (c)  In a proceeding in which a carrier or employer

26  denies that an injury occurred for which compensation benefits

27  are payable, and the claimant prevails on the issue of

28  compensability; or

29         (d)  In cases where the claimant successfully prevails

30  in proceedings filed under s. 440.24 or s. 440.28.

31

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  1  In applying the factors set forth in subsection (1) to cases

  2  arising under paragraphs (a), (b), (c), and (d), the judge of

  3  compensation claims must only consider only such benefits and

  4  the time reasonably spent in obtaining them as were secured

  5  for the claimant within the scope of paragraphs (a), (b), (c),

  6  and (d).

  7         (7)(4)  In such cases in which the claimant is

  8  responsible for the payment of her or his own attorney's fees,

  9  such fees are a lien upon compensation payable to the

10  claimant, notwithstanding s. 440.22.

11         (8)(5)  If any proceedings are had for review of any

12  petition claim, award, or compensation order before any court,

13  the court may award the injured employee or dependent an

14  attorney's fee to be paid by the employer or carrier, in its

15  discretion, which shall be paid as the court may direct when

16  benefits have been awarded to the claimant pursuant to the

17  appeal. In no event shall a fee be more than $125 per hour.

18         (9)(6)  A judge of compensation claims may not enter an

19  order approving the contents of a retainer agreement that

20  permits the escrowing of any portion of the employee's

21  compensation until benefits have been secured.

22         Section 15.  Section 440.594, Florida Statutes, is

23  created to read:

24         440.594  Records and reports.--Each employer shall keep

25  true and accurate work records, containing such information as

26  the division may prescribe, for purposes of properly complying

27  with the coverage requirements of this chapter. Such records

28  shall be open to inspection and be subject to being copied by

29  the division at any reasonable time and as often as may be

30  necessary. The division may require from any employer any

31  reports, with respect to persons employed by the employer,

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  1  deemed necessary for the effective administration of this

  2  chapter. Information revealing the employer's or individual's

  3  identity, obtained from the employer or from any individual

  4  pursuant to the administration of this chapter, shall be

  5  confidential and exempt from the provisions of s. 119.07(1),

  6  except to the extent necessary for the proper investigation to

  7  insure proper compliance with the coverage provisions of this

  8  chapter.

  9         Section 16.  Section 440.595, Florida Statutes, is

10  created to read:

11         440.095  Oaths and witnesses.--In discharging the

12  duties imposed by this chapter to ensure proper compliance

13  with the coverage provisions of this chapter, the division may

14  administer oaths and affirmations and issue subpoenas to

15  compel the attendance of witnesses and the production of

16  books, papers, correspondence, memoranda, and other records

17  deemed necessary as evidence in connection with ensuring

18  proper compliance with the coverage provisions of this

19  chapter.

20         Section 17.  440.596, Florida Statutes, is created to

21  read:

22         440.596  Florida Workers' Compensation Management

23  Board.--

24         (1)  A nonprofit corporation to be known as the

25  "Florida Workers' Compensation Management Board, Incorporated"

26  is hereby created.  The board shall operate pursuant to a plan

27  developed by the board of directors of the board and approved

28  by the division. The board is not a state agency, board, or

29  commission.

30         (2)  The Legislature declares the purpose of the board

31  is to provide management operations and services necessary for

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  1  the administration of the workers' compensation system under

  2  chapter 440 that are more efficiently performed by private

  3  enterprise. The Legislature finds that transferring most of

  4  the division's duties to the board will provide the state with

  5  the resources to undertake and focus on functions that are

  6  appropriate and within the purview of state government and

  7  that using private enterprise facilitates an efficient cost

  8  effective system that will more quickly respond to dynamic

  9  changes within the compensation system.

10         (3)  The board shall consist of 9 members, 8 of which

11  shall be appointed by the Governor. The Governor shall appoint

12  4 members as representatives of labor interests and 4 members

13  as representatives of employers. A ninth member shall be

14  elected by a majority vote of the board of directors. Two

15  members appointed as representatives of labor interests and

16  two members appointed as representatives of management

17  interests shall be appointed for two year terms. The remaining

18  appointees shall serve for four year terms. Thereafter, all

19  members shall serve for terms of 4 years, except any vacancy

20  shall be filled by appointment for the remainder of the term.

21  Members may be reappointed but may not serve for more than 2

22  consecutive terms. All members shall have significant

23  experience in the workers' compensation system, must not have

24  an ownership or material financial interest in any entity

25  receiving payments under the compensation system, and may not

26  receive contracts from the board for services while serving on

27  the board or within two years after serving on the board.

28         (4)  Each member is accountable to the Governor for

29  proper performance of his or her duties as a member of the

30  board. The Governor may remove from office any member for

31  malfeasance, misfeasance, neglect of duty, drunkenness,

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  1  incompetence, or permanent inability to perform official

  2  duties, or for pleading guilty or nolo contendere to, or

  3  having been adjudicated guilty of, a first degree misdemeanor

  4  or a felony.

  5         (5)  Members shall serve without salary, but shall be

  6  reimbursed for actual and necessary expenses incurred in the

  7  performance of his or her official duties as a member, in

  8  accordance with s. 112.061. Members shall not be subject to

  9  any liability under any theory of recovery without a showing

10  of fraud or malice.

11         (6)  Any moneys appropriated to the board for purposes

12  of this section shall be administered by the board as provided

13  in this subsection. On or before September 1, the board shall

14  submit a plan of operation to the division for review. The

15  plan shall provide for efficient administration and prompt

16  processing of forms, efficient methods of data collection, and

17  creation of alternative dispute resolution systems that will

18  facilitate a self executing workers' compensation system. The

19  plan may be amended at any time by the board or upon request

20  by the department. The plan and any amendments to the plan are

21  subject to approval by the department. The plan shall:

22         (a)  Authorize the board to engage in the activities

23  necessary or incidental to provide the management functions

24  necessary for the operation of the workers' compensation

25  system.

26         (b)  Provide consulting services to the division and

27  the department.

28         (c)  Authorize the board to borrow money.

29         (d)  Authorize the efficient processing of reports, and

30  other reporting requirements required by law.

31

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  1         (e)  Authorize the board to develop alternative dispute

  2  mechanisms, including funding of personnel, equipment, and

  3  facilities, that will enhance the expeditious resolution of

  4  conflicts between injured employees and the employer or

  5  carrier.

  6         (f)  Authorize the board to enter contractual

  7  arrangements with the state that will allow for the purchase

  8  or lease of surplus office equipment, computers, or data

  9  systems from the division or any other entity of the state,

10  and that will allow for an efficient transition of functions

11  from the division to operations by the board.

12         (g)  Provide for annual reports to the department on

13  expenditures and completion of plan objectives and include

14  recommendations for future plan goals.

15         (h)  Authorize the board to delegate, and enter

16  contractual arrangements for administering and completing,

17  board responsibilities.

18         (i)  Provide for the processing and dissemination of

19  payments approved by the division from the Special Disability

20  Trust Fund.

21         (j)  Provide for a retirement program for plan

22  employees. The retirement program shall provide credit for

23  years of service in working for the department.

24         (7)(a)  The board shall employ a chief operating

25  officer who shall conduct the daily operations of the board in

26  accordance with policies established by the board and who

27  shall otherwise implement board policy. The chief operating

28  officer shall hire personnel according to policies adopted by

29  the board to assist in completing the board's objectives.

30         (b)  All personnel hired by the board, including the

31  chief executive officer, are board employees who serve at the

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  1  pleasure of the board and are not subject to state employee

  2  hiring and termination requirements.

  3         (8)  The board shall appoint a standing technical

  4  advisory committee to advise the board on the implications of

  5  data reporting requirements and recommend alternative

  6  reporting and processing requirements that will enhance plan

  7  efficiency. The technical advisory committee shall be

  8  appointed by the chief executive officer, with the concurrence

  9  of the board, and shall include representatives of insurance

10  entities from group self-insurance funds authorized by s.

11  624.462, assessable mutual insurers authorized under s.

12  628.6011, and insurers licensed to write workers' compensation

13  and employer's liability insurance in this state.

14         Section 18.  Section 442.003, Florida Statutes, is

15  amended to read:

16         442.003  Legislative intent.--It is the intent of the

17  Legislature to enhance occupational safety and health in this

18  state through the implementation and maintenance of policies,

19  procedures, practices, rules, and standards that reduce the

20  incidence of employee accidents, occupational diseases, and

21  fatalities compensable under chapter 440. The Legislature

22  further intends that the Division of Safety of the Department

23  of Labor and Employment Security develop a means by which it

24  can identify individual employers with a high frequency or

25  severity of work-related injuries; conduct safety inspections

26  of those employers; and assist those employers in the

27  development and implementation of employee safety and health

28  programs. In addition, it is the intent of the Legislature

29  that the Division of Safety of the Department of Labor and

30  Employment Security administer the provisions of this chapter;

31  provide assistance to employers, employees, and insurance

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  1  carriers; and enforce the policies, rules, and standards set

  2  forth in this chapter.

  3         Section 19.  Section 442.014, Florida Statutes, is

  4  amended to read:

  5         442.014  Division cooperation with Federal Government;

  6  exemption from division of Safety requirements.--

  7         (1)  The division shall cooperate with the Federal

  8  Government so that duplicate inspections will be avoided yet

  9  assure safe places of employment for the citizens of this

10  state.

11         (2)  Except as provided in this section, a private

12  sector employer is not subject to the requirements of the

13  division of Safety if:

14         (a)  The employer is subject to the federal regulations

15  in 29 C.F.R. ss. 1910 and 1926; and

16         (b)  The employer has adopted and implemented a written

17  safety program that conforms to the requirements of 29 C.F.R.

18  ss. 1910 and 1926; and

19         (c)  An employer with 20 or more full-time employees

20  shall include provisions for a safety committee in the safety

21  program. The safety committee must include employee

22  representation and must meet at least once each calendar

23  quarter. The employer must make adequate records of each

24  meeting and maintain the records subject to inspections under

25  subsection (3). The safety committee shall, if appropriate,

26  make recommendations regarding improvements to the safety

27  program and corrections of hazards affecting workplace safety;

28  and

29         (d)  The employer provides the division of Safety with

30  a written statement that certifies compliance with this

31  subsection.

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  1         (3)  The division of Safety may enter at any reasonable

  2  time any place of employment for the purposes of verifying the

  3  accuracy of the written certification. If the division of

  4  Safety determines that the employer has not complied with the

  5  requirements of subsection (2), the employer shall be subject

  6  to the rules of the division of Safety until the employer

  7  complies with subsection (2) and recertifies that fact to the

  8  division of Safety.

  9         (4)  This section shall not restrict the division of

10  Safety from performing any duties pursuant to a written

11  contract between the division of Safety and the Federal

12  Occupational Safety and Health Administration (OSHA).

13         Section 20.  Section 442.023, Florida Statutes, is

14  amended to read:

15         442.023  Matters within jurisdiction of the division of

16  Safety; false, fictitious, or fraudulent acts, statements, and

17  representations prohibited; penalty; statute of

18  limitations.--A person may not, in any matter within the

19  jurisdiction of the division of Safety of the Department of

20  Labor and Employment Security, knowingly and willfully falsify

21  or conceal a material fact; make any false, fictitious, or

22  fraudulent statement or representation; or make or use any

23  false document, knowing the same to contain any false,

24  fictitious, or fraudulent statement or entry. A person who

25  violates this section commits a misdemeanor of the second

26  degree, punishable as provided in s. 775.082 or s. 775.083.

27  The statute of limitations for prosecution of an act committed

28  in violation of this section is 5 years after the date the act

29  was committed.

30         Section 21.  Section 442.20, Florida Statutes, is

31  amended to read:

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  1         442.20  Workplace safety.--

  2         (1)  The division of Safety within the Department of

  3  Labor and Employment Security shall assist in making the

  4  workplace a safer place to work and decreasing the frequency

  5  and severity of on-the-job injuries.

  6         (2)  The division of Safety shall have the authority to

  7  adopt rules for the purpose of assuring safe working

  8  conditions for all workers by authorizing the enforcement of

  9  effective standards, assisting and encouraging employers to

10  maintain safe working conditions, and by providing for

11  education and training in the field of safety.

12         (3)  The provisions of chapter 440 which pertain to

13  workplace safety shall be applicable to the division of

14  Safety.

15         (4)  The administrative rules of the Department of

16  Labor and Employment Security pertaining to the function of

17  the Bureau of Industrial Safety and Health which are in effect

18  immediately before July 1, 1990, continue in effect as rules

19  of the Division of Safety until specifically amended by the

20  Department of Labor and Employment Security.

21         Section 22.  Section 627.0915, Florida Statutes, is

22  amended to read:

23         627.0915  Rate filings; workers' compensation,

24  drug-free workplace, and safe employers.--The Department of

25  Insurance shall approve rating plans for workers' compensation

26  insurance that give specific identifiable consideration in the

27  setting of rates to employers that either implement a

28  drug-free workplace program pursuant to rules adopted by the

29  Division of Workers' Compensation of the Department of Labor

30  and Employment Security or implement a safety program approved

31  by the division of Safety pursuant to rules adopted by the

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  1  division of Safety of the Department of Labor and Employment

  2  Security or implement both a drug-free workplace program and a

  3  safety program. The plans must take effect January 1, 1994,

  4  must be actuarially sound, and must state the savings

  5  anticipated to result from such drug-testing and safety

  6  programs.

  7         Section 23.  Section 627.212, Florida Statutes, is

  8  amended to read:

  9         627.212  Workplace safety program surcharge.--The

10  department shall approve a rating plan for workers'

11  compensation coverage insurance that provides for carriers

12  voluntarily to impose a surcharge of no more than 10 percent

13  on the premium of a policyholder or fund member if that

14  policyholder or fund member has been identified by the

15  Division of Workers' Compensation Safety of the Department of

16  Labor and Employment Security as having been required to

17  implement a safety program and having failed to establish or

18  maintain, either in whole or in part, a safety program. The

19  division shall adopt rules prescribing the criteria for the

20  employee safety programs.

21         Section 24.  Paragraph (b) of subsection (4) of section

22  627.311, Florida Statutes, is amended to read:

23         627.311  Joint underwriters and joint reinsurers.--

24         (4)

25         (b)  The operation of the plan shall be governed by a

26  plan of operation that is prepared at the direction of the

27  board of governors. The plan of operation may be changed at

28  any time by the board of governors or upon request of the

29  department. The plan of operation and all changes thereto are

30  subject to the approval of the department. The plan of

31  operation shall:

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  1         1.  Authorize the board to engage in the activities

  2  necessary to implement this subsection, including, but not

  3  limited to, borrowing money.

  4         2.  Develop criteria for eligibility for coverage by

  5  the plan, including, but not limited to, documented rejection

  6  by at least two insurers which reasonably assures that

  7  insureds covered under the plan are unable to acquire coverage

  8  in the voluntary market. Any insured may voluntarily elect to

  9  accept coverage from an insurer for a premium equal to or

10  greater than the plan premium if the insurer writing the

11  coverage adheres to the provisions of s. 627.171.

12         3.  Require notice from the agent to the insured at the

13  time of the application for coverage that the application is

14  for coverage with the plan and that coverage may be available

15  through an insurer, group self-insurers' fund, commercial

16  self-insurance fund, or assessable mutual insurer through

17  another agent at a lower cost.

18         4.  Establish programs to encourage insurers to provide

19  coverage to applicants of the plan in the voluntary market and

20  to insureds of the plan, including, but not limited to:

21         a.  Establishing procedures for an insurer to use in

22  notifying the plan of the insurer's desire to provide coverage

23  to applicants to the plan or existing insureds of the plan and

24  in describing the types of risks in which the insurer is

25  interested. The description of the desired risks must be on a

26  form developed by the plan.

27         b.  Developing forms and procedures that provide an

28  insurer with the information necessary to determine whether

29  the insurer wants to write particular applicants to the plan

30  or insureds of the plan.

31

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  1         c.  Developing procedures for notice to the plan and

  2  the applicant to the plan or insured of the plan that an

  3  insurer will insure the applicant or the insured of the plan,

  4  and notice of the cost of the coverage offered; and developing

  5  procedures for the selection of an insuring entity by the

  6  applicant or insured of the plan.

  7         d.  Provide for a market-assistance plan to assist in

  8  the placement of employers. All applications for coverage in

  9  the plan received 45 days before the effective date for

10  coverage shall be processed through the market-assistance

11  plan. A market-assistance plan specifically designed to serve

12  the needs of small good policyholders as defined by the board

13  must be finalized by January 1, 1994.

14         5.  Provide for policy and claims services to the

15  insureds of the plan of the nature and quality provided for

16  insureds in the voluntary market.

17         6.  Provide for the review of applications for coverage

18  with the plan for reasonableness and accuracy, using any

19  available historic information regarding the insured.

20         7.  Provide for procedures for auditing insureds of the

21  plan which are based on reasonable business judgment and are

22  designed to maximize the likelihood that the plan will collect

23  the appropriate premiums.

24         8.  Authorize the plan to terminate the coverage of and

25  refuse future coverage for any insured that submits a

26  fraudulent application to the plan or provides fraudulent or

27  grossly erroneous records to the plan or to any service

28  provider of the plan in conjunction with the activities of the

29  plan.

30         9.  Establish service standards for agents who submit

31  business to the plan.

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  1         10.  Establish criteria and procedures to prohibit any

  2  agent who does not adhere to the established service standards

  3  from placing business with the plan or receiving, directly or

  4  indirectly, any commissions for business placed with the plan.

  5         11.  Provide for the establishment of reasonable safety

  6  programs for all insureds in the plan. At the direction of the

  7  board, the Division of Workers' Compensation Safety shall

  8  provide inspection to insureds and applicants for coverage in

  9  the plan identified as high-risk insureds by the board or its

10  designee.

11         12.  Authorize the plan to terminate the coverage of

12  and refuse future coverage to any insured who fails to pay

13  premiums or surcharges when due; who, at the time of

14  application, is delinquent in payments of workers'

15  compensation or employer's liability insurance premiums or

16  surcharges owed to an insurer, group self-insurers' fund,

17  commercial self-insurance fund, or assessable mutual insurer

18  licensed to write such coverage in this state; or who refuses

19  to substantially comply with any safety programs recommended

20  by the plan.

21         13.  Authorize the board of governors to provide the

22  services required by the plan through staff employed by the

23  plan, through reasonably compensated service providers who

24  contract with the plan to provide services as specified by the

25  board of governors, or through a combination of employees and

26  service providers.

27         14.  Provide for service standards for service

28  providers, methods of determining adherence to those service

29  standards, incentives and disincentives for service, and

30  procedures for terminating contracts for service providers

31  that fail to adhere to service standards.

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  1         15.  Provide procedures for selecting service providers

  2  and standards for qualification as a service provider that

  3  reasonably assure that any service provider selected will

  4  continue to operate as an ongoing concern and is capable of

  5  providing the specified services in the manner required.

  6         16.  Provide for reasonable accounting and

  7  data-reporting practices.

  8         17.  Provide for annual review of costs associated with

  9  the administration and servicing of the policies issued by the

10  plan to determine alternatives by which costs can be reduced.

11         18.  Authorize the acquisition of such excess insurance

12  or reinsurance as is consistent with the purposes of the plan.

13         19.  Provide for an annual report to the department on

14  a date specified by the department and containing such

15  information as the department reasonably requires.

16         20.  Establish multiple rating plans for various

17  classifications of risk which reflect risk of loss, hazard

18  grade, actual losses, size of premium, and compliance with

19  loss control. At least one of such plans must be a

20  preferred-rating plan to accommodate small-premium

21  policyholders with good experience as defined in

22  sub-subparagraph 22.a.

23         21.  Establish agent commission schedules.

24         22.  Establish three subplans as follows:

25         a.  Subplan "A" must include those insureds whose

26  annual premium does not exceed $2,500 and who have neither

27  incurred any lost-time claims nor incurred medical-only claims

28  exceeding 50 percent of their premium for the immediate 2

29  years.

30         b.  Subplan "B" must include insureds that are

31  employers identified by the board of governors as high-risk

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  1  employers due solely to the nature of the operations being

  2  performed by those insureds and for whom no market exists in

  3  the voluntary market, and whose experience modifications are

  4  less than 1.00.

  5         c.  Subplan "C" must include all other insureds within

  6  the plan.

  7         Section 25.  Section 440.4416, Florida Statutes, is

  8  hereby repealed.

  9         Section 26.  This act shall take effect October 1 of

10  the year in which enacted.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Deletes the Division of Safety of the Department of Labor
  4    and Employment Security and provides for the Division of
      Workers' Compensation to assume the duties and
  5    responsibilities of the Division of Safety. Creates the
      Workers' Compensation Appeals Commission to review orders
  6    of judges of compensation claims in workers' compensation
      proceedings. Prohibits the construction industry from
  7    electing exemption from workers' compensation provisions.
      Eliminates impairment ratings and requires objective
  8    medical findings for psychiatric disability. Increases
      penalties against employers who do not carry workers'
  9    compensation coverage. Provides for requests for
      alternative medical care. Provides for rehabilitation
10    providers' right to medical records. Provides for
      independent medical examinations. Provides for informal
11    and formal grievance procedures in managed care
      arrangements. Revises provisions relating to
12    determinations of pay, excludes average weekly wage
      issues from attorney's fee calculations, and provides for
13    use of actual wages earned Revises provisions providing
      for payment of compensation for disability relating to
14    permanent total disability, temporary total disability,
      permanent impairment and wage-loss benefits, and
15    temporary partial disability to increase benefits to
      injured workers. Replaces criteria, procedures, and
16    requirements for payment of supplemental benefits with
      such provisions for wage-loss benefits. Provides for
17    approval of lump sum settlement agreements. Clarifies
      award of attorney's fees, prohibits attorney's fees based
18    on an hourly rate and prescribes award of attorney's fees
      on a contingency basis, eliminates interest on attorney's
19    fees, and requires notice to employees of attorney fee
      hearings. Requires employers to keep records and reports.
20    Provides for oaths and witnesses. Creates the Florida
      Workers' Compensation Management Board as a nonprofit
21    corporation to provide management operations and services
      necessary to administer the workers' compensation system.
22    Repeals the Workers' Compensation Oversight Board. See
      bill for details.
23

24

25

26

27

28

29

30

31

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