Senate Bill 1508

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    Florida Senate - 1999                                  SB 1508

    By Senator Gutman





    34-915A-99

  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.13, F.S.; deleting the

  4         provision that medically necessary treatment

  5         does not include chiropractic services;

  6         specifying date for the Division of Workers'

  7         Compensation of the Department of Labor and

  8         Employment Security to adopt rules regarding

  9         criteria for approval of courses; providing

10         that injured workers must receive reports that

11         their attorneys and the carrier's attorneys

12         receive at the time they receive the reports;

13         deleting employee's responsibility for

14         copayment for medical services; amending s.

15         440.15, F.S.; extending time for payment of

16         benefits for temporary total disability;

17         increasing the membership on the panel

18         responsible for establishing a uniform

19         permanent impairment rating system; increasing

20         the percentage of an employee's salary for

21         purposes of impairment income benefits;

22         prescribing a schedule for payment of benefits;

23         authorizing a judge of compensation claims to

24         settle a dispute between two doctors relating

25         to impairment; increasing the time for payment

26         of temporary partial disability benefits;

27         reducing the geographical area in which the

28         employer must provide the employee with work

29         appropriate to the employee's limitation;

30         increasing the monetary fine for failure to

31         provide such work; amending s. 440.191, F.S.;

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    Florida Senate - 1999                                  SB 1508
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  1         providing employees with right to an attorney

  2         in a proceeding before the Employee Assistance

  3         and Ombudsman Office to resolve a dispute;

  4         amending s. 440.192, F.S.; providing that an

  5         employer is responsible for an employee's

  6         attorney's fees and costs in proceedings before

  7         a judge of compensation claims; providing

  8         applicability for s. 440.20(11)(c), F.S.;

  9         repealing s. 440.25(4)(j), F.S., relating to

10         expedited hearings; providing an effective

11         date.

12

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

14

15         Section 1.  Paragraph (a) of subsection (2), paragraph

16  (a) of subsection (3), paragraph (c) of subsection (4), and

17  subsection (14) of section 440.13, Florida Statutes, 1998

18  Supplement, are amended to read:

19         440.13  Medical services and supplies; penalty for

20  violations; limitations.--

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

22         (a)  Subject to the limitations specified elsewhere in

23  this chapter, the employer shall furnish to the employee such

24  medically necessary remedial treatment, care, and attendance

25  for such period as the nature of the injury or the process of

26  recovery may require, including medicines, medical supplies,

27  durable medical equipment, orthoses, prostheses, and other

28  medically necessary apparatus. Remedial treatment, care, and

29  attendance, including work-hardening programs or

30  pain-management programs accredited by the Commission on

31  Accreditation of Rehabilitation Facilities or Joint Commission

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    Florida Senate - 1999                                  SB 1508
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  1  on the Accreditation of Health Organizations or

  2  pain-management programs affiliated with medical schools,

  3  shall be considered as covered treatment only when such care

  4  is given based on a referral by a physician as defined in this

  5  chapter. Each facility shall maintain outcome data, including

  6  work status at discharges, total program charges, total number

  7  of visits, and length of stay. The department shall utilize

  8  such data and report to the President of the Senate and the

  9  Speaker of the House of Representatives regarding the efficacy

10  and cost-effectiveness of such program, no later than October

11  1, 1994. Medically necessary treatment, care, and attendance

12  does not include chiropractic services in excess of 18

13  treatments or rendered 8 weeks beyond the date of the initial

14  chiropractic treatment, whichever comes first, unless the

15  carrier authorizes additional treatment or the employee is

16  catastrophically injured.

17         (3)  PROVIDER ELIGIBILITY; AUTHORIZATION.--

18         (a)  As a condition to eligibility for payment under

19  this chapter, a health care provider who renders services must

20  be a certified health care provider and must receive

21  authorization from the carrier before providing treatment.

22  This paragraph does not apply to emergency care. The division

23  shall adopt rules to implement the certification of health

24  care providers. As a one-time prerequisite to obtaining

25  certification, the division shall require each physician to

26  demonstrate proof of completion of a minimum 5-hour course

27  that covers the subject areas of cost containment, utilization

28  control, ergonomics, and the practice parameters adopted by

29  the division governing the physician's field of practice. The

30  division shall coordinate with the Agency for Health Care

31  Administration, the Florida Medical Association, the Florida

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    Florida Senate - 1999                                  SB 1508
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  1  Osteopathic Medical Association, the Florida Chiropractic

  2  Association, the Florida Podiatric Medical Association, the

  3  Florida Optometric Association, the Florida Dental

  4  Association, and other health professional organizations and

  5  their respective boards as deemed necessary by the Agency for

  6  Health Care Administration in complying with this subsection.

  7  No later than October 1, 1999 1994, the division shall adopt

  8  rules regarding the criteria and procedures for approval of

  9  courses and the filing of proof of completion by the

10  physicians.

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

12  DIVISION.--

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

14  workers' compensation system that there be reasonable access

15  to medical information by all parties to facilitate the

16  self-executing features of the law. An injured worker must

17  receive copies of all medical records, except a psychologist's

18  or psychiatrist's report, at the same time his or her lawyer

19  and the carrier's lawyer receive such reports. The doctors may

20  give such reports to the injured worker's family.

21  Notwithstanding the limitations in s. 455.667 and subject to

22  the limitations in s. 381.004, upon the request of the

23  employer, the carrier, or the attorney for either of them, the

24  medical records of an injured employee must be furnished to

25  those persons and the medical condition of the injured

26  employee must be discussed with those persons, if the records

27  and the discussions are restricted to conditions relating to

28  the workplace injury. Any such discussions may be held before

29  or after the filing of a claim without the knowledge, consent,

30  or presence of any other party or his or her agent or

31  representative. A health care provider who willfully refuses

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    Florida Senate - 1999                                  SB 1508
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  1  to provide medical records or to discuss the medical condition

  2  of the injured employee, after a reasonable request is made

  3  for such information pursuant to this subsection, shall be

  4  subject by the division to one or more of the penalties set

  5  forth in paragraph (8)(b).

  6         (14)  PAYMENT OF MEDICAL FEES.--

  7         (a)  Except for emergency care treatment, fees for

  8  medical services are payable only to a health care provider

  9  certified and authorized to render remedial treatment, care,

10  or attendance under this chapter. A health care provider may

11  not collect or receive a fee from an injured employee within

12  this state, except as otherwise provided by this chapter. Such

13  providers have recourse against the employer or carrier for

14  payment for services rendered in accordance with this chapter.

15         (b)  Fees charged for remedial treatment, care, and

16  attendance may not exceed the applicable fee schedules adopted

17  under this chapter.

18         (c)  Notwithstanding any other provision of this

19  chapter, following overall maximum medical improvement from an

20  injury compensable under this chapter, the employee is

21  obligated to pay a copayment of $10 per visit for medical

22  services. The copayment shall not apply to emergency care

23  provided to the employee.

24         Section 2.  Paragraph (a) of subsection (2), paragraph

25  (a) of subsection (3), paragraph (b) of subsection (4), and

26  subsection (6) of section 440.15, Florida Statutes, 1998

27  Supplement, are amended to read:

28         440.15  Compensation for disability.--Compensation for

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

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

31         (2)  TEMPORARY TOTAL DISABILITY.--

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

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

  3  wages shall be paid to the employee during the continuance

  4  thereof, not to exceed 182 104 weeks except as provided in

  5  this subsection, s. 440.12(1), and s. 440.14(3). Once the

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

  7  employee reaches the date of maximum medical improvement,

  8  whichever occurs earlier, temporary disability benefits shall

  9  cease and the injured worker's permanent impairment shall be

10  determined.

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

12         (a)  Impairment benefits.--

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

14  medical improvement, impairment benefits are due and payable

15  within 20 days after the carrier has knowledge of the

16  impairment.

17         2.  The five-member three-member panel, in cooperation

18  with the division, shall establish and use a uniform permanent

19  impairment rating schedule. This schedule must be based on

20  medically or scientifically demonstrable findings as well as

21  the systems and criteria set forth in the American Medical

22  Association's Guides to the Evaluation of Permanent

23  Impairment; the Snellen Charts, published by American Medical

24  Association Committee for Eye Injuries; and the Minnesota

25  Department of Labor and Industry Disability Schedules. The

26  schedule should be based upon objective findings. The schedule

27  shall be more comprehensive than the AMA Guides to the

28  Evaluation of Permanent Impairment and shall expand the areas

29  already addressed and address additional areas not currently

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

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

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    Florida Senate - 1999                                  SB 1508
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  1  Evaluation of Permanent Impairment, copyright 1977, 1971,

  2  1988, by the American Medical Association, shall be the

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

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

  5  division rule of a uniform disability rating schedule, the

  6  Minnesota Department of Labor and Industry Disability Schedule

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

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

  9  Impairment by the American Medical Association shall be used.

10  Determination of permanent impairment under this schedule must

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

12  osteopathic medicine licensed under chapters 458 and 459, a

13  chiropractic physician licensed under chapter 460, a podiatric

14  physician licensed under chapter 461, an optometrist licensed

15  under chapter 463, or a dentist licensed under chapter 466, as

16  appropriate considering the nature of the injury. No other

17  persons are authorized to render opinions regarding the

18  existence of or the extent of permanent impairment.

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

20  impairment rating using the impairment schedule referred to in

21  subparagraph 2. Impairment income benefits are paid weekly at

22  the rate of 66 2/3  50 percent of the employee's average

23  weekly salary temporary total disability benefit not to exceed

24  the maximum weekly benefit under s. 440.12. An employee's

25  entitlement to impairment income benefits begins the day after

26  the employee reaches maximum medical improvement or the

27  expiration of temporary benefits, whichever occurs earlier,

28  and continues until the earlier of:

29         a.  Eighteen weeks of eligibility for permanent

30  impairment ratings up to and including 3 percent;

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  1         b.  Thirty-six weeks of eligibility for permanent

  2  impairment ratings greater than 3 percent and up to and

  3  including 6 percent;

  4         c.  Fify-four weeks of eligibility for permanent

  5  impairment ratings greater than 6 percent and up to and

  6  including 9 percent;

  7         d.  Seventy-two weeks of eligibility for permanent

  8  impairment ratings greater than 9 percent and up to and

  9  including 12 percent;

10         e.  Eighty-six weeks of eligibility for permanent

11  impairment ratings greater than 13 percent and up to and

12  including 14 percent;

13         f.  Ninety-four weeks of eligibility for permanent

14  impairment ratings greater than 13 percent and up to and

15  including 14 percent;

16         g.  One-hundred and five weeks of eligibility for

17  permanent impairment ratings greater than 14 percent and up to

18  and including 15 percent;

19         h.  One-hundred and nineteen weeks of eligibility for

20  permanent impairment ratings greater than 15 and up to and

21  including 16 percent;

22         i.  One-hundred and thirty-three weeks of eligibility

23  for permanent impairment ratings greater than 16 percent and

24  up to and including 17 percent;

25         j.  One-hundred and forty-seven weeks of eligibility

26  for permanent impairment ratings greater than 17 and up to and

27  including 18 percent;

28         k.  One-hundred and sixty-one weeks of eligibility for

29  permanent impairment ratings greater than 18 percent and up to

30  and including 19 percent;

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  1         l.  One-hundred and seventy-five weeks of eligibility

  2  for permanent impairment ratings greater than 19 percent and

  3  up to and including 20 percent;

  4         m.  One-hundred and ninety-two weeks of eligibility for

  5  permanent impairment ratings greater than 20 percent and up to

  6  and including 21 percent;

  7         n.  Two-hundred and ten weeks of eligibility for

  8  permanent impairment ratings greater than 21 percent and up to

  9  and including 22 percent;

10         o.  Two-hundred and twenty-seven weeks of eligibility

11  for permanent impairment ratings greater than 22 percent and

12  up to and including 23 percent;

13         p.  Two-hundred and forty-five weeks of eligibility for

14  permanent impairment ratings greater than 23 and up to and

15  including 24 percent;

16         q.  Two-hundred and fifty-four weeks of eligibility for

17  permanent impairment ratings greater than 24 percent; or

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

19  3 weeks for each percentage point of impairment;

20         r.b.  The death of the employee.

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

22  as having reached maximum medical improvement or 6 weeks

23  before the expiration of temporary benefits, whichever occurs

24  earlier, the certifying doctor shall evaluate the condition of

25  the employee and assign an impairment rating, using the

26  impairment schedule referred to in subparagraph 2.

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

28  emotional injury arising out of depression from being out of

29  work because of the employee's accident. If the certification

30  and evaluation are performed by a doctor other than the

31  employee's treating doctor, the certification and evaluation

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  1  must be submitted to the treating doctor, and the treating

  2  doctor must indicate agreement or disagreement with the

  3  certification and evaluation, but the opinion of the second

  4  doctor counts in the final decision of impairment. If there is

  5  any controversy, the judge of compensation claims resolves the

  6  dispute between the two doctors. The certifying doctor shall

  7  issue a written report to the division, the employee, and the

  8  carrier certifying that maximum medical improvement has been

  9  reached, stating the impairment rating, and providing any

10  other information required by the division. If the employee

11  has not been certified as having reached maximum medical

12  improvement before the expiration of 182 102 weeks after the

13  date temporary total disability benefits begin to accrue, the

14  carrier shall notify the treating doctor of the requirements

15  of this section.

16         5.  The carrier shall pay the employee impairment

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

18         6.  The division may by rule specify forms and

19  procedures governing the method of payment of wage loss and

20  impairment benefits for dates of accidents before January 1,

21  1994, and for dates of accidents on or after January 1, 1994.

22         (4)  TEMPORARY PARTIAL DISABILITY.--

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

24  of such disability, not to exceed a period of 182 104 weeks,

25  as provided by this subsection and subsection (2). Once the

26  injured employee reaches the maximum number of weeks,

27  temporary disability benefits cease and the injured worker's

28  permanent impairment must be determined. The division may by

29  rule specify forms and procedures governing the method of

30  payment of temporary disability benefits for dates of

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  1  accidents before January 1, 1994, and for dates of accidents

  2  on or after January 1, 1994.

  3         (6)  OBLIGATION TO REHIRE.--If the employer has not in

  4  good faith made available to the employee, within a 35-mile

  5  100-mile radius of the employee's residence, work appropriate

  6  to the employee's physical limitations within 30 days after

  7  the carrier notifies the employer of maximum medical

  8  improvement and the employee's physical limitations, the

  9  employer shall pay to the division for deposit into the

10  Workers' Compensation Administration Trust Fund a fine of $250

11  for every $5,000 of the employer's workers' compensation

12  premium or payroll, not to exceed $5,000 $2,000 per violation,

13  as the division requires by rule. The employer is not subject

14  to this subsection if the employee is receiving permanent

15  total disability benefits or if the employer has 25 50 or

16  fewer employees.

17         Section 3.  Paragraph (d) of subsection (2) of section

18  440.191, Florida Statutes, 1998 Supplement, is amended to

19  read:

20         440.191  Employee Assistance and Ombudsman Office.--

21         (2)

22         (d)  The Employee Assistance and Ombudsman Office may

23  assign an ombudsman to assist the employee in resolving the

24  dispute. If the dispute is not resolved within 30 days after

25  the employee contacts the office, the ombudsman shall, at the

26  employee's request, assist the employee in drafting a petition

27  for benefits and explain the procedures for filing petitions.

28  The employee may be represented by an attorney, and the

29  employer or carrier is liable for attorney's fees and costs.

30  The division may by rule determine the method used to

31  calculate the 30-day period. The Employee Assistance and

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  1  Ombudsman Office may not represent employees before the judges

  2  of compensation claims. An employer or carrier may not pay any

  3  attorneys' fees on behalf of the employee for services

  4  rendered or costs incurred in connection with this section,

  5  unless expressly authorized elsewhere in this chapter.

  6         Section 4.  Subsection (6) of section 440.192, Florida

  7  Statutes, is amended to read:

  8         440.192  Procedure for resolving benefit disputes.--

  9         (6)  If the claimant is not represented by counsel, the

10  Office of the Judges of Compensation Claims may request the

11  Employee Assistance and Ombudsman Office to assist the

12  claimant in filing a petition that meets the requirements of

13  this section. The employee may be represented by an attorney,

14  and the employer or carrier is liable for attorney's fees and

15  costs.

16         Section 5.  Paragraph (c) of subsection (11) of section

17  440.20, Florida Statutes, applies to all claims that the

18  parties have not settled under the current law (1994), unless

19  the claimant was injured before 1994, in which case the

20  previous law (1990) applies to the claimant.

21         Section 6.  Paragraph (j) of subsection (4) of section

22  440.25, Florida Statutes, is repealed.

23         Section 7.  This act shall take effect upon becoming a

24  law.

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  2                          SENATE SUMMARY

  3    Amends various provisions of the workers' compensation
      law. Deletes the provision that medically necessary
  4    treatment does not include chiropractic services.
      Specifies date for the Division of Workers' Compensation
  5    of the Department of Labor and Employment Security to
      adopt rules regarding criteria for approval of courses.
  6    Provides that injured workers must receive reports that
      their attorneys and the carrier's attorneys receive at
  7    the time they receive the reports. Deletes employee's
      responsibility for copayment for medical services.
  8    Extends time for payment of benefits for temporary total
      disability. Increases the membership on the panel
  9    responsible for establishing a uniform permanent
      impairment rating system. Increases the percentage of an
10    employee's salary for purposes of impairment income
      benefits. Prescribes a schedule for payment of benefits.
11    Authorizes a judge of compensation claims to settle a
      dispute between two doctors relating to impairment.
12    Increases the time for payment of temporary partial
      disability benefits. Reduces the geographical area in
13    which the employer must provide the employee with work
      appropriate to the employee's limitation. Increases the
14    monetary fine for failure to provide such work. Provides
      employees with right to an attorney in a proceeding
15    before the Employee Assistance and Ombudsman Office to
      resolve a dispute. Provides that an employer is
16    responsible for an employee's attorney's fees and costs
      in proceedings before a judge of compensation claims.
17    Provides applicability for s. 440.20(11)(c), F.S. Repeals
      s. 440.25(4)(j), F.S., relating to expedited hearings.
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