House Bill hb1775

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    Florida House of Representatives - 2001                HB 1775

        By Representative Melvin






  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending ss. 61.13 and 440.22, F.S.; specifying

  4         nonapplication of a workers' compensation

  5         exemption from creditors' claims to child

  6         support; amending s. 61.30, F.S.; clarifying

  7         inclusion of all workers' compensation benefits

  8         and settlements in child support calculations;

  9         amending ss. 112.19 and 112.191, F.S., to

10         conform to deleting a definition of

11         catastrophic injury; amending s. 440.02, F.S.;

12         revising definitions; amending s. 440.05, F.S.;

13         providing for substantial revision of election

14         of exemption provisions; providing for

15         application solely to sole proprietors,

16         partners, or officers of corporations; revising

17         requirements, procedures, and limitations;

18         excluding from exemption eligibility persons

19         and entities engaged in the construction

20         industry; amending s. 440.09, F.S.; excluding

21         compensation from impairment ratings for

22         psychiatric impairments from coverage; amending

23         s. 440.10, F.S., to conform; amending s.

24         440.13, F.S.; providing a limitation on certain

25         hourly rates for a family member under certain

26         circumstances; authorizing carriers to provide

27         certain financial incentives for certain

28         purposes; providing a definition; clarifying

29         independent medical examination provisions;

30         specifying certain physician's actions as an

31         independent medical examination for certain

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  1         purposes; providing for admissibility of

  2         certain evaluations and reports into evidence

  3         in certain proceedings; amending s. 440.14,

  4         F.S.; specifying employee responsibility for

  5         providing concurrent employment earnings in

  6         certain wage calculations; amending s. 440.15,

  7         F.S.; limiting eligibility for permanent total

  8         disability; revising permanent impairment

  9         benefits provisions; revising the rate for

10         benefit payments; amending s. 440.185, F.S.;

11         clarifying certain notice requirements;

12         amending s. 440.191, F.S.; revising provisions

13         relating to the Employee Assistance and

14         Ombudsman Office; authorizing participation in

15         early intervention programs; providing for

16         determinations of certain medical-only claims;

17         deleting a prohibition against an employee

18         filing a petition for benefits under certain

19         circumstances; providing additional

20         requirements for filing such a petition;

21         amending s. 440.192, F.S.; revising and

22         clarifying various provisions relating to a

23         petition for benefits; deleting a service by

24         certified mail requirement for filing a

25         petition for benefits; revising requirements

26         for a petition for benefits; deleting a

27         petition requirement for certification of good

28         faith effort to resolve the dispute; amending

29         s. 440.20, F.S.; providing criteria for

30         satisfaction of an employer's obligation to pay

31         compensation; providing for direct deposit of

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  1         compensation; authorizing a judge of

  2         compensation claims to not hold a hearing under

  3         certain circumstances; revising procedures and

  4         requirements for hearings by judges of

  5         compensation claims;  amending s. 440.25, F.S.;

  6         revising procedures and requirements for

  7         mediation and hearings; providing for a motion

  8         to dismiss for lack of prosecution; prohibiting

  9         award of interest on unpaid medical bills;

10         amending s. 440.29, F.S.; providing for receipt

11         into evidence certain peer review reports and

12         independent medical examinations; amending s.

13         440.34, F.S.; prohibiting award of attorney's

14         fees on certain issues; deleting criteria for

15         determining award of attorney's fees; deleting

16         entitlement for claimant recovery of attorney

17         fees; limiting attorney's fees under certain

18         circumstances; deleting a prohibition against a

19         judge of compensation claims entering certain

20         orders; amending s. 440.39, F.S.; providing

21         construction relating to an employer's duty to

22         preserve certain evidence; amending s. 440.42,

23         F.S.; specifying expiration of certain

24         insurance policies; amending s. 440.4416, F.S.;

25         substantially revising Workers' Compensation

26         Oversight Board provisions; replacing the board

27         with the Workers' Compensation Appeals

28         Commission; creating the commission; providing

29         for appointment of commissioners; providing for

30         salaries and benefits for commissioners;

31         providing for powers, duties, and

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  1         responsibilities of the commission; providing

  2         for a presiding commissioner; providing for

  3         duties and responsibilities of the presiding

  4         commissioner; providing for appointment of a

  5         commission clerk; providing duties and

  6         responsibilities of the clerk; authorizing the

  7         commission and clerk to charge fees for certain

  8         purposes; amending s. 440.45, F.S.;

  9         transferring the Office of Judges of

10         Compensation Claims from the Department of

11         Labor and Employment Security to the Division

12         of Administrative Hearings; providing for

13         statewide nominating commission determinations

14         of judges of compensation claims satisfactory

15         performance; providing for legislative review;

16         providing for the Governor's appointment of

17         certain judges of compensation claims under

18         certain circumstances; requiring the office to

19         provide certain performance review data to the

20         commission; requiring the office to provide

21         draft rules to the Governor and Legislature for

22         certain actions; amending s. 627.311, F.S.;

23         providing for funding certain deficits through

24         certain policyholder surpluses; amending s.

25         627.914, F.S.; providing for the department to

26         adopt rules for use by self-insurance funds for

27         certain purposes; deleting certain annual

28         reporting information requirements for

29         insurers; applying certain insurer related

30         provisions to self-insurance funds; deleting a

31         reporting requirement of the Division of

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  1         Workers' Compensation; repealing ss. 440.02(37)

  2         and 440.13(1)(d), F.S., relating to a

  3         definition of catastrophic injury; providing an

  4         effective date.

  5

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

  7

  8         Section 1.  Paragraph (b) of subsection (1) of section

  9  61.13, Florida Statutes, is amended to read:

10         61.13  Custody and support of children; visitation

11  rights; power of court in making orders.--

12         (1)

13         (b)  Each order for child support shall contain a

14  provision for health insurance for the minor child when the

15  insurance is reasonably available. Insurance is reasonably

16  available if either the obligor or obligee has access at a

17  reasonable rate to group insurance.  The court may require the

18  obligor either to provide health insurance coverage or to

19  reimburse the obligee for the cost of health insurance

20  coverage for the minor child when coverage is provided by the

21  obligee.  In either event, the court shall apportion the cost

22  of coverage, and any noncovered medical, dental, and

23  prescription medication expenses of the child, to both parties

24  by adding the cost to the basic obligation determined pursuant

25  to s. 61.30(6). The court may order that payment of uncovered

26  medical, dental, and prescription medication expenses of the

27  minor child be made directly to the payee on a percentage

28  basis.

29         1.  A copy of the court order for insurance coverage

30  shall be served on the obligor's payor or union by the obligee

31  or the IV-D agency when the following conditions are met:

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  1         a.  The obligor fails to provide written proof to the

  2  obligee or the IV-D agency within 30 days of receiving

  3  effective notice of the court order, that the insurance has

  4  been obtained or that application for insurability has been

  5  made;

  6         b.  The obligee or IV-D agency serves written notice of

  7  its intent to enforce medical support on the obligor by mail

  8  at the obligor's last known address; and

  9         c.  The obligor fails within 15 days after the mailing

10  of the notice to provide written proof to the obligee or the

11  IV-D agency that the insurance coverage existed as of the date

12  of mailing.

13         2.  In cases in which the noncustodial parent provides

14  health care coverage and the noncustodial parent changes

15  employment and the new employer provides health care coverage,

16  the IV-D agency shall transfer notice of the provision to the

17  employer, which notice shall operate to enroll the child in

18  the noncustodial parent's health plan, unless the noncustodial

19  parent contests the notice.  Notice to enforce medical

20  coverage under this section shall be served by the IV-D agency

21  upon the obligor by mail at the obligor's last known address.

22  The obligor shall have 15 days from the date of mailing of the

23  notice to contest the notice with the IV-D agency.

24         3.  Upon receipt of the order pursuant to subparagraph

25  1. or the notice pursuant to subparagraph 2., or upon

26  application of the obligor pursuant to the order, the payor,

27  union, or employer shall enroll the minor child as a

28  beneficiary in the group insurance plan and withhold any

29  required premium from the obligor's income.  If more than one

30  plan is offered by the payor, union, or employer, the child

31

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  1  shall be enrolled in the insurance plan in which the obligor

  2  is enrolled.

  3         4.  The Department of Revenue shall have the authority

  4  to adopt rules to implement the child support enforcement

  5  provisions of this section.

  6         5.  Exemption from creditors' claims pursuant to s.

  7  440.22 does not extend to claims of child support.

  8         Section 2.  Paragraph (a) of subsection (2) of section

  9  61.30, Florida Statutes, is amended to read:

10         61.30  Child support guidelines; retroactive child

11  support.--

12         (2)  Income shall be determined on a monthly basis for

13  the obligor and for the obligee as follows:

14         (a)  Gross income shall include, but is not limited to,

15  the following items:

16         1.  Salary or wages.

17         2.  Bonuses, commissions, allowances, overtime, tips,

18  and other similar payments.

19         3.  Business income from sources such as

20  self-employment, partnership, close corporations, and

21  independent contracts. "Business income" means gross receipts

22  minus ordinary and necessary expenses required to produce

23  income.

24         4.  Disability benefits.

25         5.  All worker's compensation benefits and settlements.

26         6.  Unemployment compensation.

27         7.  Pension, retirement, or annuity payments.

28         8.  Social security benefits.

29         9.  Spousal support received from a previous marriage

30  or court ordered in the marriage before the court.

31         10.  Interest and dividends.

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  1         11.  Rental income, which is gross receipts minus

  2  ordinary and necessary expenses required to produce the

  3  income.

  4         12.  Income from royalties, trusts, or estates.

  5         13.  Reimbursed expenses or in kind payments to the

  6  extent that they reduce living expenses.

  7         14.  Gains derived from dealings in property, unless

  8  the gain is nonrecurring.

  9         Section 3.  Paragraph (h) of subsection (2) of section

10  112.19, Florida Statutes, is amended to read:

11         112.19  Law enforcement, correctional, and correctional

12  probation officers; death benefits.--

13         (2)

14         (h)1.  Any employer who employs a full-time law

15  enforcement, correctional, or correctional probation officer

16  who, on or after January 1, 1995, suffers a catastrophic

17  injury, as defined in s. 440.02(37), in the line of duty shall

18  pay the entire premium of the employer's health insurance plan

19  for the injured employee, the injured employee's spouse, and

20  for each dependent child of the injured employee until the

21  child reaches the age of majority or until the end of the

22  calendar year in which the child reaches the age of 25 if the

23  child continues to be dependent for support, or the child is a

24  full-time or part-time student and is dependent for support.

25  The term "health insurance plan" does not include supplemental

26  benefits that are not part of the basic group health insurance

27  plan.  If the injured employee subsequently dies, the employer

28  shall continue to pay the entire health insurance premium for

29  the surviving spouse until remarried, and for the dependent

30  children, under the conditions outlined in this paragraph.

31  However:

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  1         a.  Health insurance benefits payable from any other

  2  source shall reduce benefits payable under this section.

  3         b.  It is unlawful for a person to willfully and

  4  knowingly make, or cause to be made, or to assist, conspire

  5  with, or urge another to make, or cause to be made, any false,

  6  fraudulent, or misleading oral or written statement to obtain

  7  health insurance coverage as provided under this paragraph.  A

  8  person who violates this sub-subparagraph commits a

  9  misdemeanor of the first degree, punishable as provided in s.

10  775.082 or s. 775.083.

11         c.  In addition to any applicable criminal penalty,

12  upon conviction for a violation as described in

13  sub-subparagraph b., a law enforcement, correctional, or

14  correctional probation officer or other beneficiary who

15  receives or seeks to receive health insurance benefits under

16  this paragraph shall forfeit the right to receive such health

17  insurance benefits, and shall reimburse the employer for all

18  benefits paid due to the fraud or other prohibited activity.

19  For purposes of this sub-subparagraph, "conviction" means a

20  determination of guilt that is the result of a plea or trial,

21  regardless of whether adjudication is withheld.

22         2.  In order for the officer, spouse, and dependent

23  children to be eligible for such insurance coverage, the

24  injury must have occurred as the result of the officer's

25  response to fresh pursuit, the officer's response to what is

26  reasonably believed to be an emergency, or an unlawful act

27  perpetrated by another.  Except as otherwise provided herein,

28  nothing in this paragraph shall be construed to limit health

29  insurance coverage for which the officer, spouse, or dependent

30  children may otherwise be eligible, except that a person who

31  qualifies under this section shall not be eligible for the

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  1  health insurance subsidy provided under chapter 121, chapter

  2  175, or chapter 185.

  3         Section 4.  Paragraph (g) of subsection (2) of section

  4  112.191, Florida Statutes, is amended to read:

  5         112.191  Firefighters; death benefits.--

  6         (2)

  7         (g)1.  Any employer who employs a full-time firefighter

  8  who, on or after January 1, 1995, suffers a catastrophic

  9  injury, as defined in s. 440.02(37), in the line of duty shall

10  pay the entire premium of the employer's health insurance plan

11  for the injured employee, the injured employee's spouse, and

12  for each dependent child of the injured employee until the

13  child reaches the age of majority or until the end of the

14  calendar year in which the child reaches the age of 25 if the

15  child continues to be dependent for support, or the child is a

16  full-time or part-time student and is dependent for support.

17  The term "health insurance plan" does not include supplemental

18  benefits that are not part of the basic group health insurance

19  plan.  If the injured employee subsequently dies, the employer

20  shall continue to pay the entire health insurance premium for

21  the surviving spouse until remarried, and for the dependent

22  children, under the conditions outlined in this paragraph.

23  However:

24         a.  Health insurance benefits payable from any other

25  source shall reduce benefits payable under this section.

26         b.  It is unlawful for a person to willfully and

27  knowingly make, or cause to be made, or to assist, conspire

28  with, or urge another to make, or cause to be made, any false,

29  fraudulent, or misleading oral or written statement to obtain

30  health insurance coverage as provided under this paragraph.  A

31  person who violates this sub-subparagraph commits a

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  1  misdemeanor of the first degree, punishable as provided in s.

  2  775.082 or s. 775.083.

  3         c.  In addition to any applicable criminal penalty,

  4  upon conviction for a violation as described in

  5  sub-subparagraph b., a firefighter or other beneficiary who

  6  receives or seeks to receive health insurance benefits under

  7  this paragraph shall forfeit the right to receive such health

  8  insurance benefits, and shall reimburse the employer for all

  9  benefits paid due to the fraud or other prohibited activity.

10  For purposes of this sub-subparagraph, "conviction" means a

11  determination of guilt that is the result of a plea or trial,

12  regardless of whether adjudication is withheld.

13         2.  In order for the firefighter, spouse, and dependent

14  children to be eligible for such insurance coverage, the

15  injury must have occurred as the result of the firefighter's

16  response to what is reasonably believed to be an emergency

17  involving the protection of life or property, or an unlawful

18  act perpetrated by another.  Except as otherwise provided

19  herein, nothing in this paragraph shall be construed to limit

20  health insurance coverage for which the firefighter, spouse,

21  or dependent children may otherwise be eligible, except that a

22  person who qualifies for benefits under this section shall not

23  be eligible for the health insurance subsidy provided under

24  chapter 121, chapter 175, or chapter 185.

25

26  Notwithstanding any provision of this section to the contrary,

27  the death benefits provided in paragraphs (b), (c), and (f)

28  shall also be applicable and paid in cases where a firefighter

29  received bodily injury prior to July 1, 1993, and subsequently

30  died on or after July 1, 1993, as a result of such

31  in-line-of-duty injury.

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  1         Section 5.  Subsections (4), (7), (14), (15), and (16)

  2  of section 440.02, Florida Statutes, are amended, and

  3  subsection (40) is added to said section, to read:

  4         440.02  Definitions.--When used in this chapter, unless

  5  the context clearly requires otherwise, the following terms

  6  shall have the following meanings:

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

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

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

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

11  of such work is less than $1,000 $100.

12         (7)  "Construction industry" means any business

13  carrying out for-profit activities involving the carrying out

14  of any building, clearing, filling, excavation, or substantial

15  improvement in the size or use of any structure or the

16  appearance of any land.  When appropriate to the context,

17  "construction" refers to the act of construction or the result

18  of construction.  However, "construction" shall not mean a

19  homeowner's landowner's act of construction or the result of a

20  construction upon his or her own premises, provided such

21  premises are not intended to be sold or resold or leased by

22  the owner within 1 year after the commencement of the

23  construction.

24         (14)(a)  "Employee" means any person receiving

25  remuneration from an employer for the performance of any work

26  or service or the provision of any goods or supplies whether

27  by engaged in any employment under any appointment, or

28  contract for of hire, or apprenticeship, express or implied,

29  oral or written, whether lawfully or unlawfully employed, and

30  includes, but is not limited to, aliens and minors.

31

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

  2  of a corporation and who performs services within this state

  3  for remuneration for such corporation within this state,

  4  whether or not such services are continuous.

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

  6  from this chapter by filing written notice of the election

  7  with the division as provided in s. 440.05.

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

  9  engaged in the construction industry, no more than three

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

11  written notice of the election with the division as provided

12  in s. 440.05.

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

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

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

16

17  Services are presumed to have been rendered to the corporation

18  if the officer is compensated by other than dividends upon

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

20         (c)  The division may by rule establish those standard

21  industrial classification codes and their definitions which

22  meet the criteria of the definition of the term "construction"

23  as set forth in this section. "Employee" includes a sole

24  proprietor or a partner who devotes full time to the

25  proprietorship or partnership and, except as provided in this

26  paragraph, elects to be included in the definition of employee

27  by filing notice thereof as provided in s. 440.05. Partners or

28  sole proprietors actively engaged in the construction industry

29  are considered employees unless they elect to be excluded from

30  the definition of employee by filing written notice of the

31  election with the division as provided in s. 440.05. However,

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  1  no more than three partners in a partnership that is actively

  2  engaged in the construction industry may elect to be excluded.

  3  A sole proprietor or partner who is actively engaged in the

  4  construction industry and who elects to be exempt from this

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

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

  7  purposes of this chapter, an independent contractor is an

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

  9  forth in subparagraph (d)1.

10         (d)  For purposes of this chapter, all persons being

11  paid by a general contractor for work performed by or as a

12  subcontractor, or employee of a subcontractor, are employees

13  of the general contractor, except any person who "Employee"

14  does not include:

15         1.  An independent contractor, if:

16         a.  The independent contractor Maintains a separate

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

18  materials, or similar accommodations;

19         2.b.  The independent contractor Holds or has applied

20  for a federal employer identification number if required to do

21  so by any federal, state, or local law or rule, or who

22  otherwise has a social security number, unless the independent

23  contractor is a sole proprietor who is not required to obtain

24  a federal employer identification number under state or

25  federal requirements;

26         3.c.  The independent contractor Performs or agrees to

27  perform specific services or work for specific amounts of

28  money and controls the means of performing the services or

29  work he or she was hired to perform or supply;

30

31

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  1         4.d.  The independent contractor Incurs the principal

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

  3  performs or agrees to perform;

  4         5.e.  The independent contractor Is responsible for the

  5  satisfactory completion of work or services that he or she

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

  7  for a failure to complete the work or services;

  8         6.f.  The independent contractor Receives compensation

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

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

11  such as for salary or wages; and

12         7.g.  The independent contractor May realize a profit

13  or suffer a loss in connection with performing work or

14  services and;

15         h.  The independent contractor has continuing or

16  recurring business liabilities or obligations; and

17         i.  The success or failure of the independent

18  contractor's business depends on the relationship of business

19  receipts to expenditures.

20

21  However, under no circumstances shall more than one person per

22  trade per job site be a nonemployee of the general contractor.

23  The employer shall post in a conspicuous place on each job

24  site the name and federal employer identification number, or

25  if none is required, the social security number, of each

26  person being paid by the general contractor for work performed

27  on that job site who is a nonemployee of the general

28  contractor. For purposes of this subparagraph, "job site"

29  means the project as defined by the relevant building permit

30  and "trade" means a trade required to be licensed as such by

31  the Department of Business and Professional Regulation. Any

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  1  person working in a trade not required to be licensed as such

  2  by the department is deemed to be an employee of the general

  3  contractor. the determination as to whether an individual

  4  included in the Standard Industrial Classification Manual of

  5  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

  6  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,

  7  2448, or 2449, or a newspaper delivery person, is an

  8  independent contractor is governed not by the criteria in this

  9  paragraph but by common-law principles, giving due

10  consideration to the business activity of the individual.

11         (e)  An employee is not:

12         1.  A domestic servant in a private house.

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

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

15  of commission.

16         3.  Bands, orchestras, and musical and theatrical

17  performers, including disk jockeys, performing in licensed

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

19  evidencing an independent contractor relationship is entered

20  into before the commencement of such entertainment.

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

22  property under a written contract with a motor carrier which

23  evidences a relationship by which the owner-operator assumes

24  the responsibility of an employer for the performance of the

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

26  necessary motor vehicle equipment and all costs incidental to

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

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

29  owner-operator is paid a commission for transportation service

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

31  basis.

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

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

  3  of the employer.

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

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

  6  A person who does not receive monetary remuneration for

  7  services is presumed to be a volunteer unless there is

  8  substantial evidence that a valuable consideration was

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

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

11         a.  Persons who serve in private nonprofit agencies and

12  who receive no compensation other than expenses in an amount

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

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

15  if such agency does not have salaried employees who receive

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

17  compensation other than expenses in an amount less than or

18  equivalent to the customary mileage and per diem paid to

19  salaried workers in the community as determined by the

20  division; and

21         b.  Volunteers participating in federal programs

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

23         7.  Agricultural labor performed on a farm in the

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

25  employs five or fewer regular employees and who employs fewer

26  than 12 other employees at one time for seasonal agricultural

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

28  seasonal employment does not exceed 45 days in the same

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

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

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

                                  17

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

  2  labor supervisory personnel. Any officer of a corporation who

  3  elects to be exempt from this chapter.

  4         8.  Professional athletes, such as professional boxers,

  5  wrestlers, baseball, football, basketball, hockey, polo,

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

  7  competing in a motor racing event as defined in s. 549.08. A

  8  sole proprietor or officer of a corporation who actively

  9  engages in the construction industry, and a partner in a

10  partnership that is actively engaged in the construction

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

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

13  employee for any reason until the notice of revocation of

14  election filed pursuant to s. 440.05 is effective.

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

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

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

18  into prior to the commencement of such activity which

19  evidences that an employee/employer relationship does not

20  exist.

21         10.  A taxicab, limousine, or other passenger

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

23  a written agreement with a company which provides any

24  dispatch, marketing, insurance, communications, or other

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

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

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

28  revenues.

29         11.  Persons performing labor under a sentence of a

30  court to perform public service or community work as provided

31  in s. 316.193.

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  1         (15)(a)  "Employer" means the state and all political

  2  subdivisions thereof, all public and quasi-public corporations

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

  4  legal representative of a deceased person or the receiver or

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

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

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

  8  corporate powers, directors, and all shareholders who directly

  9  or indirectly own a controlling interest in the corporation,

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

11  and 440.106.

12         (b)  However, a landowner shall not be considered the

13  employer of any person hired by the landowner to carry out

14  construction on his or her own premises, provided such

15  premises are not intended for immediate sale or resale.

16         (16)(a)  "Employment," means, except as provided in

17  subsection (4), the payment of any remuneration for work or

18  services rendered or promised, or goods or services provided

19  or promised and, subject to the other provisions of this

20  chapter, means any service performed by an employee for the

21  person employing him or her.

22         (b)  "Employment" includes:

23         1.  Employment by the state and all political

24  subdivisions thereof and all public and quasi-public

25  corporations therein, including officers elected at the polls.

26         2.  All private employments in which four or more

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

28  to the construction industry, all private employment in which

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

30

31

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  1         3.  Volunteer firefighters responding to or assisting

  2  with fire or medical emergencies whether or not the

  3  firefighters are on duty.

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

  5  or as:

  6         1.  Domestic servants in private homes.

  7         2.  Agricultural labor performed on a farm in the

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

  9  employs 5 or fewer regular employees and who employs fewer

10  than 12 other employees at one time for seasonal agricultural

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

12  seasonal employment does not exceed 45 days in the same

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

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

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

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

17  labor supervisory personnel.

18         3.  Professional athletes, such as professional boxers,

19  wrestlers, baseball, football, basketball, hockey, polo,

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

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

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

23  community services as provided in s. 316.193.

24         (40)  "Medically necessary remedial treatment, care,

25  and attendance" means remedial treatment, care, and attendance

26  which an authorized treating physician has recommended in

27  writing.

28         Section 6.  Section 440.05, Florida Statutes, is

29  amended to read:

30         (Substantial rewording of section.

31         See s. 440.05, F.S., for existing text.)

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  1         440.05  Election of exemption; revocation of election;

  2  notice; certification.--

  3         (1)  Sole proprietors, partners, and corporate

  4  officers, as defined in s. 440.02, who are not primarily

  5  engaged in the construction industry as that term is defined

  6  in s. 440.02, are exempt from the provisions of this chapter

  7  unless they elect otherwise pursuant to subsection (2).

  8         (2)  Any person exempted from the provisions of this

  9  chapter pursuant to this section who secures or whose employer

10  secures for them, workers' compensation insurance coverage,

11  shall be deemed to have waived the right to such exemption and

12  shall be governed by the provisions of this chapter.

13         (3)  Every enterprise conducting business in the state

14  shall maintain business records as specified by rule by the

15  division, which rules shall include that any corporation with

16  exempt office and any partnership with exempt partners must

17  maintain written statements of those exempted persons

18  affirmatively acknowledging that individual's exempt status.

19         (4)  Any sole proprietor or partner claiming an

20  exemption pursuant to this section, shall maintain a copy of

21  his or her federal income tax records for each of the

22  immediately previous 3 years in which he or she claims an

23  exemption. Such federal income tax records shall include a

24  complete copy of the following for each year in which an

25  exemption is claimed:

26         (a)  For sole proprietors, a copy of federal income tax

27  form 1040 and schedule C.

28         (b)  For partners, a copy of the partner's federal

29  income tax schedule K-1 (form 1065) and federal income tax

30  form 1040 and schedule E. The sole proprietor or partner in

31  question shall produce, upon request by the division, a copy

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  1  of the foregoing along with a statement by the sole proprietor

  2  that the tax records provided are true and accurate copies of

  3  what the sole proprietor or partner has filed with the United

  4  States Internal Revenue Service.  Such statement shall be

  5  signed under oath by the sole proprietor or partner in

  6  question and shall be notarized. The division shall issue a

  7  stop-work order pursuant to s. 440.107(5) to any sole

  8  proprietor or partner who fails or refuses to produce a copy

  9  of the foregoing tax records and affidavit to the division

10  within 3 business days after that request and who has failed

11  to otherwise secure insurance for the provision of workers'

12  compensation benefits for himself or herself if required to do

13  so by this chapter.

14         (5)  Any corporate officer claiming an exemption

15  pursuant to this section shall be listed on the records of the

16  the Division of Corporations of the Department of State as a

17  corporate officer.  If the person claiming exemption as a

18  corporate officer is not so listed on the records of the

19  Secretary of State, that individual shall provide a notarized

20  affidavit to the division upon request by the division,

21  stating that the individual is a bona fide officer of the

22  corporation and stating the date such appointment or election

23  became or shall become effective.  Such statement shall be

24  signed under oath by both the officer in question and the

25  president or chief operating officer of the corporation and

26  notarized. The division shall issue a stop-work order pursuant

27  to s. 440.107(5) to any person who claims to be exempt as a

28  corporate officer but who fails or refuses to produce a copy

29  of the foregoing to the division within 3 business days upon

30  request to the corporate officer and who has failed to

31  otherwise secure the insurance of workers' compensation

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  1  benefits for himself or herself if required to do so by this

  2  chapter.

  3         (6)  A sole proprietor, partner, or corporate officer

  4  of a business entity that has not been in operation long

  5  enough to have filed with or be required to file by the United

  6  States Internal Revenue Service its first annual federal

  7  income tax return is not eligible for exemption from the

  8  provisions of this chapter.

  9         (7)  Exemptions pertain only to the person claiming

10  exemption, and only for the entity which is the subject of the

11  federal income tax reports filed by the person claiming the

12  exemption.  A separate exemption is required for every

13  proprietorship, partnership, or corporation from which an

14  individual receives any remuneration for labor, services, or

15  products provided.

16         (8)  Sole proprietors, partners, and corporate

17  officers, as those terms are defined in s. 440.02, or sole

18  proprietorships, partnerships, and corporations, which are

19  primarily engaged in the construction industry, as that term

20  is defined by s. 440.02, are not eligible for exemption from

21  the provisions of this chapter.

22         Section 7.  Subsection (1) of section 440.09, Florida

23  Statutes, is amended to read:

24         440.09  Coverage.--

25         (1)  The employer shall pay compensation or furnish

26  benefits required by this chapter if the employee suffers an

27  accidental compensable injury or death arising out of work

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

29  injury, its occupational cause, and any resulting

30  manifestations, or disability, or impairment shall be

31  established to a reasonable degree of medical certainty and by

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  1  objective medical findings. Mental or nervous injuries

  2  occurring as a manifestation of an injury compensable under

  3  this section shall be demonstrated by clear and convincing

  4  evidence through objective medical findings as a result of the

  5  injury from a psychiatrist certified by the division. In no

  6  event is compensation payable as a result of any impairment

  7  rating for psychiatric impairments.

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

  9  benefits for any subsequent injury the employee suffers as a

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

11  of employment unless the original injury is the major

12  contributing cause of the subsequent injury.

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

14  employment combines with a preexisting disease or condition to

15  cause or prolong disability or need for treatment, the

16  employer must pay compensation or benefits required by this

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

18  in the course of employment is and remains the major

19  contributing cause of the disability or need for treatment.

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

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

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

23  considered to be a death resulting from the accident causing

24  the hernia.

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

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

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

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

29  are entitled to compensation if the contract of employment was

30  made in this state, or the employment was principally

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

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

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

  3  provided in this chapter.

  4         Section 8.  Section 440.10, Florida Statutes, is

  5  amended to read:

  6         440.10  Liability for compensation.--

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

  8  this chapter, including any brought within the chapter by

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

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

11  physician, surgeon, or pharmacist providing services under the

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

13  440.13, 440.15, and 440.16. Any contractor or subcontractor

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

15  shall secure and maintain compensation for his or her

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

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

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

19  all of the employees of such contractor and subcontractor or

20  subcontractors engaged on such contract work shall be deemed

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

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

23  payment of compensation to all such employees, except to

24  employees of a subcontractor who has secured such payment.

25         (c)  A contractor may require a subcontractor to

26  provide evidence of workers' compensation insurance or a copy

27  of his or her certificate of election. A subcontractor

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

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

30  certificate of election to the contractor.

31

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

  2  of compensation to the employees of a subcontractor who has

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

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

  5  recover from the subcontractor all benefits paid or payable

  6  plus interest unless the contractor and subcontractor have

  7  agreed in writing that the contractor will provide coverage.

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

  9  for the payment of compensation to the employee of a

10  subcontractor who is actively engaged in the construction

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

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

13  third-party payor may recover from the claimant, partnership,

14  or corporation all benefits paid or payable plus interest,

15  unless the contractor and the subcontractor have agreed in

16  writing that the contractor will provide coverage.

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

18  compensation to the employees of another subcontractor on such

19  contract work and is not protected by the

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

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

22  of another subcontractor.

23         (f)  If an employer willfully fails to secure

24  compensation as required by this chapter, the division may

25  assess against the employer a penalty not to exceed $5,000 for

26  each employee of that employer who is classified by the

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

28  division to not meet the criteria for an independent

29  contractor that are set forth in s. 440.02.

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

31  conclusively presumed to be an independent contractor if:

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  1         1.  the independent contractor provides the general

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

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

  4         2.  The independent contractor provides the general

  5  contractor with a valid certificate of workers' compensation

  6  insurance or a valid certificate of exemption issued by the

  7  division.

  8

  9  An A sole proprietor, partner, or officer of a corporation who

10  elects exemption from this chapter by filing a certificate of

11  election under s. 440.05 may not recover benefits or

12  compensation under this chapter.  An independent contractor

13  who provides the general contractor with both an affidavit

14  stating that he or she meets the requirements of s.

15  440.02(14)(d) and a certificate of exemption is not an

16  employee under s. 440.02(14)(c) and may not recover benefits

17  under this chapter.  For purposes of determining the

18  appropriate premium for workers' compensation coverage,

19  carriers may not consider any person who meets the

20  requirements of this paragraph to be an employee.

21         (2)  Compensation shall be payable irrespective of

22  fault as a cause for the injury, except as provided in s.

23  440.09(3).

24         Section 9.  Subsections (2), (3), (4), (5), and (6) of

25  section 440.13, Florida Statutes, are amended to read:

26         440.13  Medical services and supplies; penalty for

27  violations; limitations.--

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

29         (a)  Subject to the limitations specified elsewhere in

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

31  medically necessary remedial treatment, care, and attendance

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

  2  recovery may require, including medicines, medical supplies,

  3  durable medical equipment, orthoses, prostheses, and other

  4  medically necessary apparatus. Remedial treatment, care, and

  5  attendance, including work-hardening programs or

  6  pain-management programs accredited by the Commission on

  7  Accreditation of Rehabilitation Facilities or Joint Commission

  8  on the Accreditation of Health Organizations or

  9  pain-management programs affiliated with medical schools,

10  shall be considered as covered treatment only when such care

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

12  chapter. Each facility shall maintain outcome data, including

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

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

15  such data and annually report to the President of the Senate

16  and the Speaker of the House of Representatives regarding the

17  efficacy and cost-effectiveness of such program, no later than

18  October 1, 1994. Medically necessary treatment, care, and

19  attendance does not include chiropractic services in excess of

20  18 treatments or rendered 8 weeks beyond the date of the

21  initial chiropractic treatment, whichever comes first, unless

22  the carrier authorizes additional treatment or the employee is

23  catastrophically injured.

24         (b)  The employer shall provide appropriate

25  professional or nonprofessional attendant care performed only

26  at the direction and control of a physician when such care is

27  medically necessary. The value of nonprofessional attendant

28  care provided by a family member must be determined as

29  follows:

30         1.  If the family member is not employed, the per-hour

31  value equals the federal minimum hourly wage.

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  1         2.  If the family member is employed and elects to

  2  leave that employment to provide attendant or custodial care,

  3  the per-hour value of that care equals the per-hour value of

  4  the family member's former employment, not to exceed the

  5  per-hour value of such care available in the community at

  6  large. However, the hourly rate paid to the family member

  7  shall not exceed the hourly rate received in employment that

  8  the family member quit to provide such care, but in no event

  9  shall the amount equal more than the amount earned on a weekly

10  basis. A family member or a combination of family members

11  providing nonprofessional attendant care under this paragraph

12  may not be compensated for more than a total of 12 hours per

13  day.

14         (c)  When no medical treatment has been provided and If

15  the employer fails to provide any treatment or care required

16  by this section after request by the injured employee, the

17  employee may obtain such treatment at the expense of the

18  employer, if the treatment is compensable and medically

19  necessary. There must be a specific request for the treatment,

20  and the employer or carrier must be given a reasonable time

21  period within which to provide the treatment or care. However,

22  the employee is not entitled to recover any amount personally

23  expended for the treatment or service unless he or she has

24  requested the employer to furnish that treatment or service

25  and the employer has failed, refused, or neglected to provide

26  any medical treatment do so within a reasonable time or unless

27  the nature of the injury requires such treatment, nursing, and

28  services and the employer or his or her superintendent or

29  foreman, having knowledge of the injury, has neglected to

30  provide the treatment or service.

31

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  1         (d)  The carrier has the right to transfer the care of

  2  an injured employee from the attending health care provider if

  3  an independent medical examination determines that the

  4  employee is not making appropriate progress in recuperation.

  5         (e)  Except in emergency situations and for treatment

  6  rendered by a managed care arrangement, after any initial

  7  examination and diagnosis by a physician providing remedial

  8  treatment, care, and attendance, and before a proposed course

  9  of medical treatment begins, each insurer shall review, in

10  accordance with the requirements of this chapter, the proposed

11  course of treatment, to determine whether such treatment would

12  be recognized as reasonably prudent. The review must be in

13  accordance with all applicable workers' compensation practice

14  parameters. The insurer must accept any such proposed course

15  of treatment unless the insurer notifies the physician of its

16  specific objections to the proposed course of treatment by the

17  close of the tenth business day after notification by the

18  physician, or a supervised designee of the physician, of the

19  proposed course of treatment.

20         (3)  PROVIDER ELIGIBILITY; AUTHORIZATION.--

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

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

23  be a certified health care provider and must receive

24  authorization from the carrier before providing treatment.

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

26  shall adopt rules to implement the certification of health

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

28  certification, the division shall require each physician to

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

30  that covers the subject areas of cost containment, utilization

31  control, ergonomics, and the practice parameters adopted by

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

  2  division shall coordinate with the Agency for Health Care

  3  Administration, the Florida Medical Association, the Florida

  4  Osteopathic Medical Association, the Florida Chiropractic

  5  Association, the Florida Podiatric Medical Association, the

  6  Florida Optometric Association, the Florida Dental

  7  Association, and other health professional organizations and

  8  their respective boards as deemed necessary by the Agency for

  9  Health Care Administration in complying with this subsection.

10  No later than October 1, 1994, The division shall adopt rules

11  regarding the criteria and procedures for approval of courses

12  and the filing of proof of completion by the physicians.

13         (b)  A health care provider who renders emergency care

14  must notify the carrier by the close of the third business day

15  after it has rendered such care. If the emergency care results

16  in admission of the employee to a health care facility, the

17  health care provider must notify the carrier by telephone

18  within 24 hours after initial treatment. Emergency care is not

19  compensable under this chapter unless the injury requiring

20  emergency care arose as a result of a work-related accident.

21  Pursuant to chapter 395, all licensed physicians and health

22  care providers in this state shall be required to make their

23  services available for emergency treatment of any employee

24  eligible for workers' compensation benefits. To refuse to make

25  such treatment available is cause for revocation of a license.

26         (c)  A health care provider may not refer the employee

27  to another health care provider, diagnostic facility, therapy

28  center, or other facility without prior authorization from the

29  carrier, except when emergency care is rendered. Any referral

30  must be to a health care provider that has been certified by

31  the division, unless the referral is for emergency treatment.

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  1         (d)  A carrier must respond to a request for

  2  authorization made directly from a health care provider, by

  3  telephone or in writing, to a request for authorization by the

  4  close of the third business day after receipt of the request.

  5  A carrier who fails to respond to a written request for

  6  authorization for referral for medical treatment by the close

  7  of the third business day after receipt of the request

  8  directly from a health care provider consents to the medical

  9  necessity for such treatment. All such requests must be made

10  to the carrier. Notice to the carrier does not include notice

11  to the employer.

12         (e)  Carriers shall adopt procedures for receiving,

13  reviewing, documenting, and responding to requests for

14  authorization. Such procedures shall be for a health care

15  provider certified under this section.

16         (f)  By accepting payment under this chapter for

17  treatment rendered to an injured employee, a health care

18  provider consents to the jurisdiction of the division as set

19  forth in subsection (11) and to the submission of all records

20  and other information concerning such treatment to the

21  division in connection with a reimbursement dispute, audit, or

22  review as provided by this section. The health care provider

23  must further agree to comply with any decision of the division

24  rendered under this section.

25         (g)  The employee is not liable for payment for medical

26  treatment or services provided pursuant to this section except

27  as otherwise provided in this section.

28         (h)  The provisions of s. 456.053 are applicable to

29  referrals among health care providers, as defined in

30  subsection (1), treating injured workers.

31

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  1         (i)  Notwithstanding paragraph (d), a claim for

  2  specialist consultations, surgical operations,

  3  physiotherapeutic or occupational therapy procedures, X-ray

  4  examinations, or special diagnostic laboratory tests that cost

  5  more than $1,000 and other specialty services that the

  6  division identifies by rule is not valid and reimbursable

  7  unless the services have been expressly authorized by the

  8  carrier, or unless the carrier has failed to respond within 10

  9  days to a written request for authorization, or unless

10  emergency care is required. The insurer shall not refuse to

11  authorize such consultation or procedure unless the health

12  care provider or facility is not authorized or certified or

13  unless an expert medical advisor has determined that the

14  consultation or procedure is not medically necessary or

15  otherwise compensable under this chapter. Authorization of a

16  treatment plan does not constitute express authorization for

17  purposes of this section, except to the extent the carrier

18  provides otherwise in its authorization procedures. This

19  paragraph does not limit the carrier's obligation to identify

20  and disallow overutilization or billing errors.

21         (j)  Notwithstanding anything in this chapter to the

22  contrary, a sick or injured employee shall be entitled, at all

23  times, to free, full, and absolute choice in the selection of

24  the pharmacy or pharmacist dispensing and filling

25  prescriptions for medicines required under this chapter. It is

26  expressly forbidden for the division, an employer, or a

27  carrier, or any agent or representative of the division, an

28  employer, or a carrier to select the pharmacy or pharmacist

29  which the sick or injured employee must use; condition

30  coverage or payment on the basis of the pharmacy or pharmacist

31

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  1  utilized; or to otherwise interfere in the selection by the

  2  sick or injured employee of a pharmacy or pharmacist.

  3         (k)  Notwithstanding subsection (12), the carrier may

  4  be allowed to provide for appropriate financial incentives to

  5  reduce service costs and utilization without sacrificing the

  6  quality of service.

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

  8  DIVISION.--

  9         (a)  Any health care provider providing necessary

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

11  shall submit treatment reports to the carrier in a format

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

13  treatment is not valid or enforceable against such employer or

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

15  following the first treatment, the physician providing the

16  treatment furnishes to the employer or carrier a preliminary

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

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

19  employer or carrier a complete report, and subsequent thereto

20  furnishes progress reports, if requested by the employer or

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

22  or at less frequent intervals if requested on forms prescribed

23  by the division.

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

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

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

27  respect to the remedial treatment or care of the injured

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

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

30  Workers' Compensation pursuant to rules adopted by the

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

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

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

  3  charge the injured employee an amount authorized by the

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

  5  provide to the division any additional information about the

  6  remedial treatment, care, and attendance that the division

  7  reasonably requests.

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

  9  workers' compensation system that there be reasonable access

10  to medical information by all parties to facilitate the

11  self-executing features of the law. Notwithstanding the

12  limitations in s. 456.057 and subject to the limitations in s.

13  381.004, upon the request of the employer, the carrier, a

14  rehabilitation provider, or the attorney for either of them,

15  the medical records of an injured employee must be furnished

16  to those persons and the medical condition of the injured

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

18  and the discussions are restricted to conditions relating to

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

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

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

22  representative. A health care provider who willfully refuses

23  to provide medical records or to discuss the medical condition

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

25  for such information pursuant to this subsection, shall be

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

27  forth in paragraph (8)(b). For purposes of this paragraph, the

28  term "discussion" means the free interchange of ideas, facts,

29  and findings among the parties and health care providers

30  designed to aid the parties in reaching conclusions that will

31

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  1  enable them to carry out their legal obligations and

  2  responsibilities.

  3         (5)  INDEPENDENT MEDICAL EXAMINATIONS.--

  4         (a)  In any dispute concerning overutilization, medical

  5  benefits, compensability, the need for the claimant to have a

  6  change in physicians, or disability under this chapter, the

  7  carrier or the employee may select an independent medical

  8  examiner. The examiner may not be a health care provider

  9  treating or providing other care to the employee. An

10  independent medical examiner may not render an opinion outside

11  his or her area of expertise, as demonstrated by licensure and

12  applicable practice parameters.

13         (b)  Each party is bound by his or her selection and is

14  entitled to only one of an independent medical examiner as a

15  result of injury and in only one specialty and is entitled to

16  an alternate examiner only if:

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

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

19  material to the claim or petition for benefits;

20         2.  The examiner ceases to practice in the specialty

21  relevant to the employee's condition;

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

23  or relocation outside a reasonably accessible geographic area;

24  or

25         4.  The parties agree to an alternate examiner.

26

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

28  require, designation of a division medical advisor as an

29  independent medical examiner. The opinion of the advisors

30  acting as examiners shall not be afforded the presumption set

31  forth in paragraph (9)(c).

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

  2  claimant directly to schedule a reasonable time for an

  3  independent medical examination. The carrier must confirm the

  4  scheduling agreement in writing within 5 days and notify

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

  6  upon which the independent medical examination is scheduled to

  7  occur. An attorney representing a claimant is not authorized

  8  to schedule independent medical evaluations under this

  9  subsection.

10         (d)  If the employee fails to appear for the

11  independent medical examination without good cause and fails

12  to advise the physician at least 24 hours before the scheduled

13  date for the examination that he or she cannot appear, the

14  employee is barred from recovering compensation for any period

15  during which he or she has refused to submit to such

16  examination. Further, the employee shall reimburse the carrier

17  50 percent of the physician's cancellation or no-show fee

18  unless the carrier that schedules the examination fails to

19  timely provide to the employee a written confirmation of the

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

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

22  employee may appeal to a judge of compensation claims for

23  reimbursement when the carrier withholds payment in excess of

24  the authority granted by this section.

25         (e)  Except when compensability has been denied, no

26  medical opinion other than the opinion of a medical advisor

27  appointed by the judge of compensation claims or division, an

28  independent medical examiner, a peer review consultant

29  pursuant to a utilization review set forth in subsection (6),

30  or an authorized treating provider is admissible in

31  proceedings before the judges of compensation claims.

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  1         (f)  Attorney's fees incurred by an injured employee in

  2  connection with delay of or opposition to an independent

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

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

  5         (6)  UTILIZATION REVIEW.--Carriers shall review all

  6  bills, invoices, and other claims for payment submitted by

  7  health care providers in order to identify overutilization and

  8  billing errors, and may hire peer review consultants or

  9  conduct independent medical evaluations. Such consultants,

10  including peer review organizations, are immune from liability

11  in the execution of their functions under this subsection to

12  the extent provided in s. 766.101. If a carrier finds that

13  overutilization of medical services or a billing error has

14  occurred, it must disallow or adjust payment for such services

15  or error without order of a judge of compensation claims or

16  the division, if the carrier, in making its determination, has

17  complied with this section and rules adopted by the division.

18  Any physician's action as a peer review consultant or as an

19  independent medical examiner is an independent medical

20  examination for purposes of resolving disputes arising as a

21  result of the peer review or independent medical examination.

22  The evaluation and such reports shall be admissible before the

23  judge of compensation claims if the carrier determines to

24  enter such report into evidence, however, such independent

25  medical evaluations shall not be included in the number as

26  provided in subsection (5).

27         Section 10.  Paragraph (a) of subsection (1) of section

28  440.14, Florida Statutes, is amended, and subsection (5) is

29  added to said section, to read:

30         440.14  Determination of pay.--

31

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

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

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

  4  compensation and shall be determined, subject to the

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

  6         (a)  If the injured employee has worked in the

  7  employment in which she or he was working at the time of the

  8  injury, whether for the same or another employer, during

  9  substantially the whole of 13 weeks immediately preceding the

10  injury, her or his average weekly wage shall be one-thirteenth

11  of the total amount of wages earned in such employment during

12  the 13 weeks.  As used in this paragraph, the term

13  "substantially the whole of 13 weeks" shall be deemed to mean

14  and refer to an actual a constructive period of 13 weeks as a

15  whole, which shall be defined as the 13 complete weeks, in

16  accordance with the employer's regular payroll periods, prior

17  to the week in which the injury occurs a consecutive period of

18  91 days, and the term "during substantially the whole of 13

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

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

21  such period considered as a whole.

22         (5)  If concurrent employment is to be used in the

23  calculation of the average weekly wage, the employee shall be

24  responsible for providing earnings from concurrent employment

25  to the employer or carrier within 45 days after injury or

26  after the first payment of compensation. Failure to provide

27  such information shall result in concurrent employment not

28  being included in such calculation.

29         Section 11.  Paragraph (b) of subsection (1), paragraph

30  (a) of subsection (3), and paragraph (a) of subsection (10) of

31  section 440.15, Florida Statutes, are amended to read:

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  1         440.15  Compensation for disability.--Compensation for

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

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

  4         (1)  PERMANENT TOTAL DISABILITY.--

  5         (b)  Any compensable injury eligible for permanent

  6  total benefits must be of a nature and severity that prevents

  7  the employee from being able to perform his or her prior work

  8  or any work available in substantial numbers within the

  9  national economy.  If the employee is engaged in, or is

10  physically capable of engaging in, any gainful employment,

11  including sheltered employment, he or she shall not be

12  entitled to permanent total disability.  The burden shall be

13  on the employee to establish that he or she is not able to

14  perform, due to physical limitations, even part-time sedentary

15  work if such work is available within a 100 mile radius of the

16  employee's residence. Only a catastrophic injury as defined in

17  s. 440.02 shall, in the absence of conclusive proof of a

18  substantial earning capacity, constitute permanent total

19  disability. Only claimants with catastrophic injuries are

20  eligible for permanent total benefits. In no other case may

21  permanent total disability be awarded.

22         (3)  PERMANENT IMPAIRMENT LOSS AND WAGE-LOSS

23  BENEFITS.--

24         (a)  Impairment benefits.--

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

26  medical improvement, impairment benefits are due and payable

27  within 20 days after the carrier has knowledge of the

28  impairment.

29         2.  The three-member panel, in cooperation with the

30  division, shall establish and use a uniform permanent

31  impairment rating schedule. This schedule must be based on

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  1  medically or scientifically demonstrable findings as well as

  2  the systems and criteria set forth in the American Medical

  3  Association's Guides to the Evaluation of Permanent

  4  Impairment; the Snellen Charts, published by American Medical

  5  Association Committee for Eye Injuries; and the Minnesota

  6  Department of Labor and Industry Disability Schedules. The

  7  schedule should be based upon objective findings. The schedule

  8  shall be more comprehensive than the AMA Guides to the

  9  Evaluation of Permanent Impairment and shall expand the areas

10  already addressed and address additional areas not currently

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

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

13  Evaluation of Permanent Impairment, copyright 1977, 1971,

14  1988, by the American Medical Association, shall be the

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

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

17  division rule of a uniform disability rating schedule, the

18  Minnesota Department of Labor and Industry Disability Schedule

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

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

21  Impairment by the American Medical Association shall be used.

22  Determination of permanent impairment under this schedule must

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

24  osteopathic medicine licensed under chapters 458 and 459, a

25  chiropractic physician licensed under chapter 460, a podiatric

26  physician licensed under chapter 461, an optometrist licensed

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

28  appropriate considering the nature of the injury. No other

29  persons are authorized to render opinions regarding the

30  existence of or the extent of permanent impairment.

31

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

  2  impairment rating using the impairment schedule referred to in

  3  subparagraph 2. Impairment income benefits are paid weekly at

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

  5  weekly wage temporary total disability benefit not to exceed

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

  7  entitlement to impairment income benefits begins the day after

  8  the employee reaches maximum medical improvement or the

  9  expiration of temporary benefits, whichever occurs earlier,

10  and continues until the earlier of:

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

12  3 weeks for each percentage point of impairment; or

13         b.  The death of the employee.

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

15  as having reached maximum medical improvement or 6 weeks

16  before the expiration of temporary benefits, whichever occurs

17  earlier, the certifying doctor shall evaluate the condition of

18  the employee and assign an impairment rating, using the

19  impairment schedule referred to in subparagraph 2.

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

21  emotional injury arising out of depression from being out of

22  work or from preexisting mental, psychological, or emotional

23  conditions. If the certification and evaluation are performed

24  by a doctor other than the employee's treating doctor, the

25  certification and evaluation must be submitted to the treating

26  doctor, and the treating doctor must indicate agreement or

27  disagreement with the certification and evaluation. The

28  certifying doctor shall issue a written report to the

29  division, the employee, and the carrier certifying that

30  maximum medical improvement has been reached, stating the

31  impairment rating, and providing any other information

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

  2  certified as having reached maximum medical improvement before

  3  the expiration of 102 weeks after the date temporary total

  4  disability benefits begin to accrue, the carrier shall notify

  5  the treating doctor of the requirements of this section.

  6         5.  The carrier shall pay the employee impairment

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

  8         6.  The division may by rule specify forms and

  9  procedures governing the method of payment of wage loss and

10  impairment benefits for dates of accidents before January 1,

11  1994, and impairment benefits for dates of accidents on or

12  after January 1, 1994.

13         (10)  EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER

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

15  ACT.--

16         (a)  Weekly compensation benefits payable under this

17  chapter for disability resulting from injuries to an employee

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

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

20  benefits payable under this chapter and such total benefits

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

22  his dependents, had such employee not been entitled to

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

24  423, does not exceed 80 percent of the employee's average

25  weekly wage. However, this provision shall not operate to

26  reduce an injured worker's benefits under this chapter to a

27  greater extent than such benefits would have otherwise been

28  reduced under 42 U.S.C. s. 424(a). This reduction of

29  compensation benefits is not applicable to any compensation

30  benefits payable for any week subsequent to the week in which

31  the injured worker reaches the age of 62 years.

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  1         (b)  If the provisions of 42 U.S.C. s. 424(a) are

  2  amended to provide for a reduction or increase of the

  3  percentage of average current earnings that the sum of

  4  compensation benefits payable under this chapter and the

  5  benefits payable under 42 U.S.C. ss. 402 and 423 can equal,

  6  the amount of the reduction of benefits provided in this

  7  subsection shall be reduced or increased accordingly. The

  8  division may by rule specify forms and procedures governing

  9  the method for calculating and administering the offset of

10  benefits payable under this chapter and benefits payable under

11  42 U.S.C. ss. 402 and 423. The division shall have first

12  priority in taking any available social security offsets on

13  dates of accidents occurring before July 1, 1984.

14         (c)  No disability compensation benefits payable for

15  any week, including those benefits provided by paragraph

16  (1)(f), shall be reduced pursuant to this subsection until the

17  Social Security Administration determines the amount otherwise

18  payable to the employee under 42 U.S.C. ss. 402 and 423 and

19  the employee has begun receiving such social security benefit

20  payments. The employee shall, upon demand by the division, the

21  employer, or the carrier, authorize the Social Security

22  Administration to release disability information relating to

23  her or him and authorize the Division of Unemployment

24  Compensation to release unemployment compensation information

25  relating to her or him, in accordance with rules to be

26  promulgated by the division prescribing the procedure and

27  manner for requesting the authorization and for compliance by

28  the employee. Neither the division nor the employer or carrier

29  shall make any payment of benefits for total disability or

30  those additional benefits provided by paragraph (1)(f) for any

31  period during which the employee willfully fails or refuses to

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  1  authorize the release of information in the manner and within

  2  the time prescribed by such rules. The authority for release

  3  of disability information granted by an employee under this

  4  paragraph shall be effective for a period not to exceed 12

  5  months, such authority to be renewable as the division may

  6  prescribe by rule.

  7         (d)  If compensation benefits are reduced pursuant to

  8  this subsection, the minimum compensation provisions of s.

  9  440.12(2) do not apply.

10         Section 12.  Subsection (7) of section 440.185, Florida

11  Statutes, is amended to read:

12         440.185  Notice of injury or death; reports; penalties

13  for violations.--

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

15  21 calendar days after the effective date issuance of a new

16  policy or contract of insurance such policy information as the

17  division may require, including notice of whether the policy

18  is a minimum premium policy. Notice of cancellation or

19  expiration of a policy as set out in s. 440.42(3) shall be

20  filed with mailed to the division in accordance with rules

21  promulgated by the division under chapter 120.

22         Section 13.  Section 440.191, Florida Statutes, is

23  amended to read:

24         440.191  Employee Assistance and Ombudsman Office.--

25         (1)(a)  In order to effect the self-executing features

26  of the Workers' Compensation Law, this chapter shall be

27  construed to permit injured employees and employers or the

28  employer's carrier to resolve disagreements without undue

29  expense, costly litigation, or delay in the provisions of

30  benefits. It is the duty of all who participate in the

31  workers' compensation system, including, but not limited to,

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  1  carriers, service providers, health care providers, managed

  2  care arrangements, attorneys, employers, and employees, to

  3  attempt to resolve disagreements in good faith and to

  4  cooperate with the division's efforts to resolve disagreements

  5  between the parties. The division may by rule prescribe

  6  definitions that are necessary for the effective

  7  administration of this section.

  8         (b)  An Employee Assistance and Ombudsman Office is

  9  created within the Division of Workers' Compensation to inform

10  and assist injured workers, employers, carriers, and health

11  care providers in fulfilling their responsibilities under this

12  chapter. The division may by rule specify forms and procedures

13  for administering requests for assistance provided by this

14  section.

15         (c)  The Employee Assistance and Ombudsman Office,

16  Division of Workers' Compensation, shall be a resource

17  available to all employees who participate in the workers'

18  compensation system and shall take all steps necessary to

19  educate and disseminate information to employees and

20  employers.

21         (d)  The Employee Assistance and Ombudsman Office shall

22  be authorized to participate in an early intervention program.

23  Upon notification of an industrial accident, the office may

24  contact the injured employee and advise the employee of his or

25  her rights and responsibilities under this chapter and the

26  services available to him or her under this section.

27         (e)  All medical-only claims of $5,000 or less, or

28  disputed issues as to the average weekly wage, medical mileage

29  reimbursement, or disputed issues as to independent medical

30  evaluations, shall be determined with or without a hearing by

31  the judge of compensation claims having jurisdiction over the

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  1  dispute. Neither party shall be represented by counsel during

  2  such hearings if a hearing is deemed necessary by the judge of

  3  compensation claims. Such matters shall be handled pursuant to

  4  rules adopted by the Division of Administrative Hearings. Any

  5  order of the judge of compensation claims is revocable

  6  pursuant to s. 440.271.

  7         (2)(a)  An employee may not file a petition requesting

  8  any benefit under this chapter unless the employee has

  9  exhausted the procedures for informal dispute resolution under

10  this section.

11         (a)(b)  If at any time the employer or its carrier

12  fails to provide benefits to which the employee believes she

13  or he is entitled, the employee shall file with the division,

14  the carrier, the carrier's attorney, the Division of

15  Administrative Hearings, and the judge of compensation claims

16  with jurisdiction over the petition for benefits, a petition

17  for benefits which meets the requirements of s. 440.192(1),

18  (2), and (3) contact the office to request assistance in

19  resolving the dispute. The office may shall investigate the

20  dispute and shall attempt to facilitate an agreement between

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

22  employer, and the carrier shall cooperate with the office and

23  shall timely provide the office with any documents or other

24  information that it may require in connection with its efforts

25  under this section.

26         (b)(c)  The office may compel parties to attend

27  conferences in person or by telephone in an attempt to resolve

28  disputes quickly and in the most efficient manner possible.

29  Settlement agreements resulting from such conferences must be

30  submitted to the Office of the Judges of Compensation Claims

31  for approval.

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  1         (c)(d)  The Employee Assistance and Ombudsman Office

  2  may assign an ombudsman to assist the employee in resolving

  3  any disputed issue presented in the dispute or. if the

  4  disputed issue dispute is not resolved within 30 days after

  5  the employee files the petition for benefits contacts the

  6  office, the ombudsman shall, at the employee's request, assist

  7  the employee in drafting a petition for benefits and explain

  8  the procedures for filing petitions. The division may by rule

  9  determine the method used to calculate the 30-day period. The

10  Employee Assistance and Ombudsman Office may not represent

11  employees before the judges of compensation claims. An

12  employer or carrier may not pay any attorneys' fees on behalf

13  of the employee for services rendered or costs incurred in

14  connection with this section, unless expressly authorized

15  elsewhere in this chapter.

16         Section 14.  Section 440.192, Florida Statutes, is

17  amended to read:

18         440.192  Procedure for resolving benefit disputes.--

19         (1)  Subject to s. 440.191, any employee who has not

20  received a benefit to which the employee believes she or he is

21  entitled under this chapter shall serve by certified mail upon

22  the employer, the employer's carrier, and the division in

23  Tallahassee a petition for benefits that meets the

24  requirements of this section. The division shall refer the

25  petition to the Office of the Judges of Compensation Claims.

26         (1)(2)  The judge Office of the Judges of compensation

27  claims shall review each petition and shall dismiss each

28  petition or any portion of such petition, upon its own motion

29  or upon the motion of any party, that does not on its face

30  specifically identify or itemize the following:

31

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  1         (a)  Name, address, telephone number, and social

  2  security number of the employee.

  3         (b)  Name, address, and telephone number of the

  4  employer.

  5         (c)  A detailed description of the injury and cause of

  6  the injury, including the location of the occurrence and the

  7  date or dates of the accident.

  8         (d)  A detailed description of the employee's job, work

  9  responsibilities, and work the employee was performing when

10  the injury occurred.

11         (e)  The time period for which compensation, and the

12  specific classification of compensation, was not timely

13  provided.

14         (f)  The medical treatment which has not been provided

15  which has been recommended by an authorized treating

16  physician. A copy of the written documentation by the

17  authorized treating physician recommending such care must be

18  attached to the petition.

19         (g)(f)  Date of maximum medical improvement, character

20  of disability, and specific statement of all benefits or

21  compensation that the employee is seeking.

22         (h)(g)  The specific All travel costs to which the

23  employee believes she or he is entitled, including dates of

24  travel and purpose of travel, means of transportation, and

25  mileage, including the date such request was filed with the

26  carrier and a copy of the request which was filed.

27         (i)(h)  Specific listing of all medical charges alleged

28  unpaid, including the name and address of the medical

29  provider, the amounts due, and the specific dates of

30  treatment.

31

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  1         (j)(i)  The type or nature of treatment care or

  2  attendance sought and the justification for such treatment.

  3         (k)(j)  Specific explanation of any other disputed

  4  issue that a judge of compensation claims will be called to

  5  rule upon.

  6         (l)  If the petition is for average weekly wage, the

  7  petition shall include a copy of the 13-week wage statement,

  8  the specific details as to why the 13-week wage statement is

  9  incorrect, including the check stubs or other documentation to

10  support the petition and, if the issue is concurrent

11  employment, the name and address of the concurrent employer,

12  all check stubs, days worked, and the amount which should be

13  included in the average weekly wage and the reason for the

14  petition. The dismissal of any petition or any portion of a

15  petition under this section shall be without prejudice and

16  shall not require a hearing.

17         (3)  A petition for benefits may contain a claim for

18  past benefits and continuing benefits in any benefit category,

19  but is limited to those in default and ripe, due, and owing on

20  the date the petition is filed. If the employer has elected to

21  satisfy its obligation to provide medical treatment, care, and

22  attendance through a managed care arrangement designated under

23  this chapter, the employee must exhaust all managed care

24  grievance procedures before filing a petition for benefits

25  under this section.

26         (4)  The petition must include a certification by the

27  claimant or, if the claimant is represented by counsel, the

28  claimant's attorney, stating that the claimant, or attorney if

29  the claimant is represented by counsel, has made a good faith

30  effort to resolve the dispute and that the claimant or

31  attorney was unable to resolve the dispute with the carrier.

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  1         (4)(5)  All motions to dismiss must state with

  2  particularity the basis for the motion. The judge of

  3  compensation claims shall enter an order upon such motions

  4  without hearing, unless good cause for hearing is shown. When

  5  any petition or portion of such petition is dismissed for lack

  6  of specificity under this subsection, the claimant must be

  7  allowed 20 days after the date of the order of dismissal in

  8  which to file an amended petition. Any grounds for dismissal

  9  for lack of specificity under this section may be raised until

10  the filing of the pretrial stipulation not asserted within 30

11  days after receipt of the petition for benefits are thereby

12  waived.

13         (5)(6)  If the claimant is not represented by counsel,

14  the Office of the Judges of Compensation Claims may request

15  the Employee Assistance and Ombudsman Office to assist the

16  claimant in filing a petition that meets the requirements of

17  this section.

18         (6)(7)  Notwithstanding the provisions of s. 440.34, a

19  judge of compensation claims may not award attorney's fees

20  payable by the carrier for services expended or costs incurred

21  prior to 30 days after the filing of a petition that does not

22  meet the requirements of this section.

23         (7)(8)  Within 30 14 days after receipt of a petition

24  for benefits by certified mail, the carrier must either pay

25  the requested benefits without prejudice to its right to deny

26  within 120 days from receipt of the petition or file a

27  response to petition notice of denial with the division. The

28  carrier must list all benefits requested but not paid and

29  explain its justification for nonpayment in the response to

30  petition notice of denial. The carrier shall also state those

31  benefits that have been paid or authorized in the response to

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  1  petition. A carrier that does not deny compensability in

  2  accordance with s. 440.20(4) is deemed to have accepted the

  3  employee's injuries as compensable, unless it can establish

  4  material facts relevant to the issue of compensability that

  5  could not have been discovered through reasonable

  6  investigation within the 120-day period. The carrier shall

  7  provide copies of the notice to the filing party, employer,

  8  and claimant by certified mail.

  9         Section 15.  Paragraph (a) of subsection (1) and

10  subsections (6), (7), and (11) of section 440.20, Florida

11  Statutes, are amended to read:

12         440.20  Time for payment of compensation; penalties for

13  late payment.--

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

15  to benefits, the carrier shall pay compensation directly to

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

17  accordance with the obligations set forth in such sections. If

18  authorized by the employee, the carrier's obligation to pay

19  compensation directly to the employee is satisfied when the

20  carrier directly deposits, by electronic transfer or other

21  means, compensation into the employee's bank account or into a

22  bank account which has been established by the carrier for the

23  employee. Compensation by direct deposit shall be deemed paid

24  on the date the funds become available for withdrawal by the

25  employee.

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

27  dependency benefits, disability, permanent impairment, or wage

28  loss payable without an award is not paid within 7 days after

29  it becomes due, as provided in subsection (2), subsection (3),

30  or subsection (4), there shall be added to such unpaid

31  installment a punitive penalty of an amount equal to 20

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  1  percent of the unpaid installment or $5, which shall be paid

  2  at the same time as, but in addition to, such installment of

  3  compensation, unless notice is filed under subsection (4) or

  4  unless such nonpayment results from conditions over which the

  5  employer or carrier had no control. When any installment of

  6  compensation payable without an award has not been paid within

  7  7 days after it became due and the claimant concludes the

  8  prosecution of the claim before a judge of compensation claims

  9  without having specifically claimed additional compensation in

10  the nature of a penalty under this section, the claimant will

11  be deemed to have acknowledged that, owing to conditions over

12  which the employer or carrier had no control, such installment

13  could not be paid within the period prescribed for payment and

14  to have waived the right to claim such penalty. However,

15  during the course of a hearing, the judge of compensation

16  claims shall on her or his own motion raise the question of

17  whether such penalty should be awarded or excused. The

18  division may assess without a hearing the punitive penalty

19  against either the employer or the insurance carrier,

20  depending upon who was at fault in causing the delay. The

21  insurance policy cannot provide that this sum will be paid by

22  the carrier if the division or the judge of compensation

23  claims determines that the punitive penalty should be made by

24  the employer rather than the carrier. Any additional

25  installment of compensation paid by the carrier pursuant to

26  this section shall be paid directly to the employee by check

27  or, if authorized by the employee, by direct deposit into the

28  employee's bank account or into a bank account which has been

29  established by the carrier for the employee.

30         (7)  If any compensation, payable under the terms of an

31  award, is not paid within 30 7 days after it becomes due,

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  1  there shall be added to such unpaid compensation an amount

  2  equal to 20 percent thereof, which shall be paid at the same

  3  time as, but in addition to, such compensation, unless review

  4  of the compensation order making such award is had as provided

  5  in s. 440.25.

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

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

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

  9  future payments of compensation expenses and any other

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

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

12  written notice of denial within 120 days after the the

13  employer receives notice date of the injury, and the judge of

14  compensation claims at a hearing to consider the settlement

15  proposal finds a justiciable controversy as to legal or

16  medical compensability of the claimed injury or the alleged

17  accident. A judge of compensation claims shall not be required

18  to hold a hearing if the claimant is represented by an

19  attorney and all parties stipulate that a hearing is

20  unnecessary. The employer or carrier may not pay any

21  attorney's fees on behalf of the claimant for any settlement

22  under this section unless expressly authorized elsewhere in

23  this chapter. Upon the joint petition of all interested

24  parties and after giving due consideration to the interests of

25  all interested parties, the judge of compensation claims shall

26  may enter a compensation order approving and authorizing the

27  discharge of the liability of the employer for compensation

28  and remedial treatment, care, and attendance, as well as

29  rehabilitation expenses, by the payment of a lump sum. Such a

30  compensation order so entered upon joint petition of all

31  interested parties is not subject to modification or review

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  1  under s. 440.28. If the settlement proposal together with

  2  supporting evidence is not approved by the judge of

  3  compensation claims, it shall be considered void. Upon

  4  approval of a lump-sum settlement under this subsection, the

  5  judge of compensation claims shall send a report to the Chief

  6  Judge of the amount of the settlement and a statement of the

  7  nature of the controversy. The Chief Judge shall keep a record

  8  of all such reports filed by each judge of compensation claims

  9  and shall submit to the Legislature a summary of all such

10  reports filed under this subsection annually by September 15.

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

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

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

14  future payments of compensation and rehabilitation expenses,

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

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

17  attained maximum medical improvement. An employer or carrier

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

19  any settlement, unless expressly authorized elsewhere in this

20  chapter. A compensation order so entered upon joint petition

21  of all interested parties shall not be subject to modification

22  or review under s. 440.28. When the claimant is not

23  represented by an attorney, However, a judge of compensation

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

25  payment when it is determined by the judge of compensation

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

27  of benefits the claimant would be entitled to under this

28  chapter. the judge of compensation claims shall make or cause

29  to be made such investigations as she or he considers

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

31  that a proposed final settlement of liability of the employer

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  1  for compensation shall not be subject to modification or

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

  3  disposition will definitely aid the rehabilitation of the

  4  injured worker or otherwise is clearly for the best interests

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

  6  discretion, may have an investigation made by the

  7  Rehabilitation Section of the Division of Workers'

  8  Compensation. The joint petition and the report of any

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

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

11  pursuant to this subsection which relates to the discharge of

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

13  hearing. The carrier shall provide reasonable notice to the

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

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

16  the claimant is represented by counsel or when the claimant

17  and carrier or employer are represented by counsel, final

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

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

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

21  petition and stipulation without a hearing, unless the judge

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

23  that additional testimony is needed before such settlement can

24  be approved or disapproved and so notifies the parties. The

25  probability of the death of the injured employee or other

26  person entitled to compensation before the expiration of the

27  period during which such person is entitled to compensation

28  shall, in the absence of special circumstances making such

29  course improper, be determined in accordance with the most

30  recent United States Life Tables published by the National

31  Office of Vital Statistics of the United States Department of

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  1  Health and Human Services. The probability of the happening of

  2  any other contingency affecting the amount or duration of the

  3  compensation, except the possibility of the remarriage of a

  4  surviving spouse, shall not be disregarded. As a condition of

  5  approving a lump-sum payment to a surviving spouse, the judge

  6  of compensation claims, in the judge of compensation claims'

  7  discretion, may require security which will ensure that, in

  8  the event of the remarriage of such surviving spouse, any

  9  unaccrued future payments so paid may be recovered or recouped

10  by the employer or carrier. Such applications shall be

11  considered and determined in accordance with s. 440.25.

12         Section 16.  Section 440.22, Florida Statutes, is

13  amended to read:

14         440.22  Assignment and exemption from claims of

15  creditors.--No assignment, release, or commutation of

16  compensation or benefits due or payable under this chapter

17  except as provided by this chapter shall be valid, and such

18  compensation and benefits shall be exempt from all claims of

19  creditors, and from levy, execution and attachments or other

20  remedy for recovery or collection of a debt, which exemption

21  may not be waived. However, the exemption of workers'

22  compensation claims from creditors does not extend to claims

23  based on an award of child support or alimony.

24         Section 17.  Section 440.25, Florida Statutes, is

25  amended to read:

26         440.25  Procedures for mediation and hearings.--

27         (1)  Within 40 21 days after a petition for benefits is

28  filed under s. 440.192, a mediation conference concerning such

29  petition shall be held. Within 7 days after such petition is

30  filed, the judge of compensation claims shall notify the

31  interested parties that a mediation conference concerning such

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  1  petition has been scheduled will be held. All pending

  2  petitions which have been filed for 30 days shall be scheduled

  3  for mediation at the same time. Such notice shall give the

  4  dates of petitions being mediated and the date, time, and

  5  location of the mediation conference. Such notice may be

  6  served personally upon the interested parties or may be sent

  7  to the interested parties by mail. Such mediation must be held

  8  within 60 days after the filing of the petition unless there

  9  is a showing of good cause presented to the judge of

10  compensation claims. If the judge of compensation claims

11  grants a continuance, the date of the rescheduled mediation

12  shall be set forth in the order and shall be held on that

13  date. However, if the employee and the employer or carrier are

14  represented by counsel, the representative of the employer or

15  carrier shall be allowed to attend such mediation via

16  telephone if the representative lives outside the county in

17  which the mediation is being held. At no time shall a

18  mediation conference be used for the sole purpose of mediating

19  attorney's fees.

20         (2)  Any party who participates in a mediation

21  conference shall not be precluded from requesting a hearing

22  following the mediation conference should both parties not

23  agree to be bound by the results of the mediation conference.

24  A mediation conference is required to be held unless this

25  requirement is waived by the Chief Judge. No later than 3 days

26  prior to the mediation conference, all parties must submit any

27  applicable motions, including, but not limited to, a motion to

28  waive the mediation conference, to the judge of compensation

29  claims.

30         (3)  Such mediation conference shall be conducted

31  informally and does not require the use of formal rules of

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  1  evidence or procedure. Any information from the files,

  2  reports, case summaries, mediator's notes, or other

  3  communications or materials, oral or written, relating to a

  4  mediation conference under this section obtained by any person

  5  performing mediation duties is privileged and confidential and

  6  may not be disclosed without the written consent of all

  7  parties to the conference. Any research or evaluation effort

  8  directed at assessing the mediation program activities or

  9  performance must protect the confidentiality of such

10  information. Each party to a mediation conference has a

11  privilege during and after the conference to refuse to

12  disclose and to prevent another from disclosing communications

13  made during the conference whether or not the contested issues

14  are successfully resolved. This subsection and paragraphs

15  (4)(a) and (b) shall not be construed to prevent or inhibit

16  the discovery or admissibility of any information that is

17  otherwise subject to discovery or that is admissible under

18  applicable law or rule of procedure, except that any conduct

19  or statements made during a mediation conference or in

20  negotiations concerning the conference are inadmissible in any

21  proceeding under this chapter. The Division of Administrative

22  Hearings shall maintain a list of mediators who have been

23  certified pursuant to s. 44.106. Mediators shall be

24  compensated and paid by the employer or carrier according to

25  rules adopted by the Supreme Court as set forth in s.

26  44.102(5)(b). The Chief Judge shall select a mediator. The

27  mediator shall be employed on a full-time basis by the Office

28  of the Judges of Compensation Claims. A mediator must be a

29  member of The Florida Bar, for at least 5 years and must

30  complete a mediation training program pursuant to s. 44.106,

31  and must be certified by the division as having completed a

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  1  workers' compensation training program approved by the Chief

  2  Judge. Adjunct mediators may be employed by the Office of the

  3  Judges of Compensation Claims on an as-needed basis and shall

  4  be selected from a list prepared by the Chief Judge. An

  5  adjunct mediator must be independent of all parties

  6  participating in the mediation conference. An adjunct mediator

  7  must be a member of The Florida Bar for at least 5 years and

  8  must complete a mediation training program approved by the

  9  Chief Judge. An adjunct mediator shall have access to the

10  office, equipment, and supplies of the judge of compensation

11  claims in each district. In the event both parties agree, the

12  results of the mediation conference shall be binding and

13  neither party shall have a right to appeal the results. In the

14  event either party refuses to agree to the results of the

15  mediation conference, the results of the mediation conference

16  as well as the testimony, witnesses, and evidence presented at

17  the conference shall not be admissible at any subsequent

18  proceeding on the claim. The mediator shall not be called in

19  to testify or give deposition to resolve any claim for any

20  hearing before the judge of compensation claims. The employer

21  may be represented by an attorney at the mediation conference

22  if the employee is also represented by an attorney at the

23  mediation conference.

24         (4)(a)  If, on the 7th 10th day following commencement

25  of mediation, the questions in dispute have not been resolved,

26  the judge of compensation claims shall schedule hold a

27  pretrial hearing to be held within 90 days after the filing of

28  the petition. The judge of compensation claims shall give the

29  interested parties at least 7 days' advance notice of the

30  pretrial hearing by mail. The notice shall give the time,

31  date, and location for the pretrial conference. At the

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  1  pretrial hearing, the judge of compensation claims shall,

  2  subject to paragraph (b), set a date for the final hearing

  3  that allows the parties 90 at least 30 days from the date of

  4  the pretrial conference to conduct discovery unless the

  5  parties consent to an earlier hearing date.

  6         (b)  The final hearing must be held and concluded

  7  within 210 45 days after the filing of the petition pretrial

  8  hearing. Continuances may be granted only if the requesting

  9  party demonstrates to the judge of compensation claims that

10  the reason for requesting the continuance arises from

11  circumstances beyond the party's control and was not

12  foreseeable. Any order on a continuance shall set forth the

13  date the final hearing is rescheduled.

14         (c)  The judge of compensation claims shall give the

15  interested parties at least 7 days' advance notice of the

16  final hearing, served upon the interested parties by mail.

17         (c)(d)  The hearing shall be held in the county where

18  the injury occurred, if the injury occurred in this state,

19  unless otherwise agreed to between the parties and authorized

20  by the judge of compensation claims in the county where the

21  injury occurred. If the injury occurred without the state and

22  is one for which compensation is payable under this chapter,

23  then the hearing above referred to may be held in the county

24  of the employer's residence or place of business, or in any

25  other county of the state which will, in the discretion of the

26  Chief Judge, be the most convenient for a hearing. The hearing

27  shall be conducted by a judge of compensation claims, who

28  shall, within 14 days after final hearing, unless otherwise

29  agreed by the parties, determine the dispute in a summary

30  manner. At such hearing, the claimant and employer may each

31  present evidence in respect of such claim and may be

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  1  represented by any attorney authorized in writing for such

  2  purpose. When there is a conflict in the medical evidence

  3  submitted at the hearing, the provisions of s. 440.13 shall

  4  apply. The report or testimony of the expert medical advisor

  5  shall be made a part of the record of the proceeding and shall

  6  be given the same consideration by the judge of compensation

  7  claims as is accorded other medical evidence submitted in the

  8  proceeding; and all costs incurred in connection with such

  9  examination and testimony may be assessed as costs in the

10  proceeding, subject to the provisions of s. 440.13. No judge

11  of compensation claims may make a finding of a degree of

12  permanent impairment that is greater than the greatest

13  permanent impairment rating given the claimant by any

14  examining or treating physician, except upon stipulation of

15  the parties.

16         (d)(e)  The order making an award or rejecting the

17  claim, referred to in this chapter as a "compensation order,"

18  shall set forth the findings of ultimate facts and the

19  mandate; and the order need not include any other reason or

20  justification for such mandate. The compensation order shall

21  be filed in the office of the division at Tallahassee. A copy

22  of such compensation order shall be sent by mail to the

23  parties and attorneys of record at the last known address of

24  each, with the date of mailing noted thereon.

25         (e)(f)  Each judge of compensation claims is required

26  to submit a special report to the Chief Judge in each

27  contested workers' compensation case in which a final order is

28  not issued the case is not determined within 30 14 days

29  following the of final hearing. Said form shall be provided by

30  the Chief Judge and shall contain the names of the judge of

31  compensation claims and of the attorneys involved and a brief

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  1  explanation by the judge of compensation claims as to the

  2  reason for such a delay in issuing a final order. The Chief

  3  Judge shall compile these special reports into an annual

  4  public report to the Governor, the Secretary of Labor and

  5  Employment Security, the Legislature, The Florida Bar, and the

  6  appellate district judicial nominating commissions.

  7         (f)(g)  Judges of compensation claims shall adopt and

  8  enforce uniform local rules for workers' compensation.

  9         (g)(h)  Notwithstanding any other provision of this

10  section, the judge of compensation claims may require the

11  appearance of the parties and counsel before her or him

12  without written notice for an emergency conference where there

13  is a bona fide emergency involving the health, safety, or

14  welfare of an employee. An emergency conference under this

15  section may result in the entry of an order or the rendering

16  of an adjudication by the judge of compensation claims.

17         (h)(i)  To expedite dispute resolution and to enhance

18  the self-executing features of the Workers' Compensation Law,

19  the Chief Judge shall make provision by rule or order for the

20  resolution of appropriate motions by judges of compensation

21  claims without oral hearing upon submission of brief written

22  statements in support and opposition, and for expedited

23  discovery and docketing.

24         (i)(j)  To further expedite dispute resolution and to

25  enhance the self-executing features of the system, those

26  petitions filed in accordance with s. 440.192 that involve a

27  claim for benefits of $5,000 or less shall, in the absence of

28  compelling evidence to the contrary, be presumed to be

29  appropriate for expedited resolution under this paragraph; and

30  any other claim filed in accordance with s. 440.192, upon the

31  written agreement of both parties and application by either

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  1  party, may similarly be resolved under this paragraph. For

  2  purposes of expedited resolution pursuant to this paragraph,

  3  the Chief Judge shall make provision by rule or order for

  4  expedited and limited discovery and expedited docketing in

  5  such cases. At least 15 days prior to hearing, the parties

  6  shall exchange and file with the judge of compensation claims

  7  a pretrial outline of all issues, defenses, and witnesses on a

  8  form promulgated by the Chief Judge; provided, in no event

  9  shall such hearing be held without 15 days' written notice to

10  all parties. No pretrial hearing shall be held. The judge of

11  compensation claims shall limit all argument and presentation

12  of evidence at the hearing to a maximum of 30 minutes, and

13  such hearings shall not exceed 30 minutes in length. Neither

14  party shall be required to be represented by counsel. The

15  employer or carrier may be represented by an adjuster or other

16  qualified representative. The employer or carrier and any

17  witness may appear at such hearing by telephone. The rules of

18  evidence shall be liberally construed in favor of allowing

19  introduction of evidence.

20         (j)  A motion to dismiss for lack of prosecution may be

21  filed if it appears that no recorded activity has been taken

22  on any petition for a period of 1 year regardless of whether

23  or not compensation or medical benefits have been or are being

24  paid.  The judge shall, on the judge's own motion or on a

25  motion by a party, if in the judge's discretion a hearing is

26  determined to be necessary, serve notice of hearing on the

27  parties by regular mail at their last known address. The

28  notice to dismiss shall be granted by the judge without a

29  hearing or by the judge with a hearing unless a party shows

30  good cause why the petition should remain pending.

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  1         (k)  No judge of compensation claims shall award

  2  interest on unpaid medical bills nor shall such amounts be

  3  used to calculate such interest.

  4         (5)(a)  Procedures with respect to appeals from orders

  5  of judges of compensation claims shall be governed by rules

  6  adopted by the Supreme Court. Such an order shall become final

  7  30 days after mailing of copies of such order to the parties,

  8  unless appealed pursuant to such rules.

  9         (b)  An appellant may be relieved of any necessary

10  filing fee by filing a verified petition of indigency for

11  approval as provided in s. 57.081(1) and may be relieved in

12  whole or in part from the costs for preparation of the record

13  on appeal if, within 15 days after the date notice of the

14  estimated costs for the preparation is served, the appellant

15  files with the judge of compensation claims a copy of the

16  designation of the record on appeal, and a verified petition

17  to be relieved of costs. A verified petition filed prior to

18  the date of service of the notice of the estimated costs shall

19  be deemed not timely filed. The verified petition relating to

20  record costs shall contain a sworn statement that the

21  appellant is insolvent and a complete, detailed, and sworn

22  financial affidavit showing all the appellant's assets,

23  liabilities, and income. Failure to state in the affidavit all

24  assets and income, including marital assets and income, shall

25  be grounds for denying the petition with prejudice. The

26  division shall promulgate rules as may be required pursuant to

27  this subsection, including forms for use in all petitions

28  brought under this subsection. The appellant's attorney, or

29  the appellant if she or he is not represented by an attorney,

30  shall include as a part of the verified petition relating to

31  record costs an affidavit or affirmation that, in her or his

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  1  opinion, the notice of appeal was filed in good faith and that

  2  there is a probable basis for the District Court of Appeal,

  3  First District, to find reversible error, and shall state with

  4  particularity the specific legal and factual grounds for the

  5  opinion. Failure to so affirm shall be grounds for denying the

  6  petition. A copy of the verified petition relating to record

  7  costs shall be served upon all interested parties, including

  8  the division and the Office of the General Counsel, Department

  9  of Labor and Employment Security, in Tallahassee. The judge of

10  compensation claims shall promptly conduct a hearing on the

11  verified petition relating to record costs, giving at least 15

12  days' notice to the appellant, the division, and all other

13  interested parties, all of whom shall be parties to the

14  proceedings. The judge of compensation claims may enter an

15  order without such hearing if no objection is filed by an

16  interested party within 20 days from the service date of the

17  verified petition relating to record costs. Such proceedings

18  shall be conducted in accordance with the provisions of this

19  section and with the workers' compensation rules of procedure,

20  to the extent applicable. In the event an insolvency petition

21  is granted, the judge of compensation claims shall direct the

22  division to pay record costs and filing fees from the Workers'

23  Compensation Trust Fund pending final disposition of the costs

24  of appeal. The division may transcribe or arrange for the

25  transcription of the record in any proceeding for which it is

26  ordered to pay the cost of the record. In the event the

27  insolvency petition is denied, the judge of compensation

28  claims may enter an order requiring the petitioner to

29  reimburse the division for costs incurred in opposing the

30  petition, including investigation and travel expenses.

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  1         (c)  As a condition of filing a notice of appeal to the

  2  District Court of Appeal, First District, an employer who has

  3  not secured the payment of compensation under this chapter in

  4  compliance with s. 440.38 shall file with the notice of appeal

  5  a good and sufficient bond, as provided in s. 59.13,

  6  conditioned to pay the amount of the demand and any interest

  7  and costs payable under the terms of the order if the appeal

  8  is dismissed, or if the District Court of Appeal, First

  9  District, affirms the award in any amount. Upon the failure of

10  such employer to file such bond with the judge of compensation

11  claims or the District Court of Appeal, First District, along

12  with the notice of appeal, the District Court of Appeal, First

13  District, shall dismiss the notice of appeal.

14         (6)  An award of compensation for disability may be

15  made after the death of an injured employee.

16         (7)  An injured employee claiming or entitled to

17  compensation shall submit to such physical examination by a

18  certified expert medical advisor approved by the division or

19  the judge of compensation claims as the division or the judge

20  of compensation claims may require. The place or places shall

21  be reasonably convenient for the employee. Such physician or

22  physicians as the employee, employer, or carrier may select

23  and pay for may participate in an examination if the employee,

24  employer, or carrier so requests. Proceedings shall be

25  suspended and no compensation shall be payable for any period

26  during which the employee may refuse to submit to examination.

27  Any interested party shall have the right in any case of death

28  to require an autopsy, the cost thereof to be borne by the

29  party requesting it; and the judge of compensation claims

30  shall have authority to order and require an autopsy and may,

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  1  in her or his discretion, withhold her or his findings and

  2  award until an autopsy is held.

  3         Section 18.  Subsection (4) of section 440.29, Florida

  4  Statutes, is amended to read:

  5         440.29  Procedure before the judge of compensation

  6  claims.--

  7         (4)  All medical reports of authorized treating health

  8  care providers, peer review reports pursuant to utilization

  9  review, and independent medical examinations relating to the

10  claimant and subject accident shall be received into evidence

11  by the judge of compensation claims upon proper motion.

12  However, such records must be served on the opposing party at

13  least 30 days before the final hearing. This section does not

14  limit any right of further discovery, including, but not

15  limited to, depositions.

16         Section 19.  Section 440.34, Florida Statutes, is

17  amended to read:

18         440.34  Attorney's fees; costs.--

19         (1)  A fee, gratuity, or other consideration may not be

20  paid for services rendered for a claimant in connection with

21  any proceedings arising under this chapter, unless approved as

22  reasonable by the judge of compensation claims or court having

23  jurisdiction over such proceedings. Except as provided by this

24  subsection, any attorney's fee approved by a judge of

25  compensation claims for services rendered to a claimant must

26  equal to 20 percent of the first $5,000 of the amount of the

27  benefits secured, 15 percent of the next $5,000 of the amount

28  of the benefits secured, 10 percent of the remaining amount of

29  the benefits secured to be provided during the first 10 years

30  after the date the claim is filed, and 5 percent of the

31  benefits secured after 10 years. However, there shall be no

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  1  fees payable on issues of average weekly wage, medical issues

  2  under $5,000, or issues relating to independent medical

  3  examinations. However, the judge of compensation claims shall

  4  consider the following factors in each case and may increase

  5  or decrease the attorney's fee if, in her or his judgment, the

  6  circumstances of the particular case warrant such action:

  7         (a)  The time and labor required, the novelty and

  8  difficulty of the questions involved, and the skill requisite

  9  to perform the legal service properly.

10         (b)  The fee customarily charged in the locality for

11  similar legal services.

12         (c)  The amount involved in the controversy and the

13  benefits resulting to the claimant.

14         (d)  The time limitation imposed by the claimant or the

15  circumstances.

16         (e)  The experience, reputation, and ability of the

17  lawyer or lawyers performing services.

18         (f)  The contingency or certainty of a fee.

19         (2)  In awarding a reasonable claimant's attorney's

20  fee, the judge of compensation claims shall consider only

21  those benefits to the claimant that the attorney is

22  responsible for securing. The amount, statutory basis, and

23  type of benefits obtained through legal representation shall

24  be listed on all attorney's fees awarded by the judge of

25  compensation claims. For purposes of this section, the term

26  "benefits secured" means benefits obtained as a result of the

27  claimant's attorney's legal services rendered in connection

28  with the claim for benefits. However, such term does not

29  include future medical benefits to be provided on any date

30  more than 5 years after the date the claim is filed.

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  1         (3)  If the claimant should prevail in any proceedings

  2  before a judge of compensation claims or court, there shall be

  3  taxed against the employer the reasonable costs of such

  4  proceedings, not to include the attorney's fees of the

  5  claimant. A claimant shall be responsible for the payment of

  6  her or his own attorney's fees, except that a claimant shall

  7  be entitled to recover a reasonable attorney's fee from a

  8  carrier or employer:

  9         (a)  Against whom she or he successfully asserts a

10  claim for medical benefits only, if the claimant has not filed

11  or is not entitled to file at such time a claim for

12  disability, permanent impairment, wage-loss, or death

13  benefits, arising out of the same accident; or

14         (b)  In any case in which the employer or carrier files

15  a notice of denial with the division and the injured person

16  has employed an attorney in the successful prosecution of the

17  claim; or

18         (c)  In a proceeding in which a carrier or employer

19  denies that an injury occurred for which compensation benefits

20  are payable, and the claimant prevails on the issue of

21  compensability; or

22         (d)  In cases where the claimant successfully prevails

23  in proceedings filed under s. 440.24 or s. 440.28.

24

25  In applying the factors set forth in subsection (1) to cases

26  arising under paragraphs (a), (b), (c), and (d), the judge of

27  compensation claims must only consider only such benefits and

28  the time reasonably spent in obtaining them as were secured

29  for the claimant within the scope of paragraphs (a), (b), (c),

30  and (d).

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  1         (4)  In such cases in which the claimant is responsible

  2  for the payment of her or his own attorney's fees, such fees

  3  are a lien upon compensation payable to the claimant,

  4  notwithstanding s. 440.22.

  5         (5)  If any proceedings are had for review of any

  6  claim, award, or compensation order before the workers'

  7  compensation appeals commission or appellate any court, the

  8  commission or court may award the injured employee or

  9  dependent an attorney's fee to be paid by the employer or

10  carrier, in its discretion, which shall be paid as the court

11  may direct, provided such fee shall be paid at no more than

12  $125 per hour and may not exceed $3,000 per appeal.

13         (6)  A judge of compensation claims may not enter an

14  order approving the contents of a retainer agreement that

15  permits the escrowing of any portion of the employee's

16  compensation until benefits have been secured.

17         Section 20.  Subsection (8) is added to section 440.39,

18  Florida Statutes, to read:

19         440.39  Compensation for injuries when third persons

20  are liable.--

21         (8)  Nothing in this section creates a duty of the

22  employer to preserve evidence pertaining to the industrial

23  accident or injuries arising from such accident.

24         Section 21.  Subsection (3) of section 440.42, Florida

25  Statutes, is amended to read:

26         440.42  Insurance policies; liability.--

27         (3)  Every No contract or policy of insurance issued by

28  a carrier under this chapter shall expire 1 year from the

29  effective date of the contract or policy. No contract or

30  policy of insurance issued by a carrier shall or be canceled

31  prior to its expiration date unless until at least 30 days

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  1  have elapsed after a notice of such cancellation has been sent

  2  by the carrier to the division and to the employer in

  3  accordance with the provisions of s. 440.185(7).  However,

  4  when duplicate or dual coverage exists by reason of two

  5  different carriers having issued policies of insurance to the

  6  same employer securing the same liability, it shall be

  7  presumed that only that policy with the later effective date

  8  shall be in force and that the earlier policy terminated upon

  9  the effective date of the latter.  In the event that both

10  policies carry the same effective date, one of the policies

11  may be canceled instanter upon filing a notice of cancellation

12  with the division and serving a copy thereof upon the employer

13  in such manner as the division prescribes by rule. The

14  division may by rule prescribe the content of the notice of

15  retroactive cancellation and specify the time, place, and

16  manner in which the notice of cancellation is to be served.

17         Section 22.  Section 440.4416, Florida Statutes, is

18  amended to read:

19         (Substantial rewording of section.

20         See s. 440.4416, F.S., for existing text.)

21         440.4416  Workers' Compensation Appeals Commission.--

22         (1)(a)1.  There is created under the Cabinet a Workers'

23  Compensation Appeals Commission to consist of a presiding

24  commissioner and four other commissioners, all to be appointed

25  by the Governor after October 1, 2001, but before May 15,

26  2002, and all to serve full time.  Each commissioner shall be

27  selected by the Governor from a list of three commissioners

28  nominated by the judges of each of the five district courts of

29  appeal.  The seats on the commission shall be numbered one

30  through five.  Nominations for the commissioner of seat one

31  shall be made by all the judges of the First District Court of

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  1  Appeal. Nominations for the commissioner of seat two shall be

  2  made by all the judges of the Second District Court of Appeal.

  3  Nominations for the commissioner of seat three shall be made

  4  by all the judges of the Third District Court of Appeal.

  5  Nominations for the commissioner of seat four shall be made by

  6  all the judges of the Fourth District Court of Appeal.

  7  Nominations for the commissioner of seat five shall be made by

  8  all the judges of the Fifth District Court of Appeal.  The

  9  commissioners shall elect a presiding commissioner from among

10  their number by majority vote. Each commissioner shall have

11  the qualifications required by law for judges of the district

12  courts of appeal. In addition to these qualifications, the

13  commissioners nominated by the judges from the five district

14  courts of appeal shall be substantially experienced in the

15  field of workers' compensation.

16         2.  Each commissioner shall be appointed for a term of

17  4 years, but may be removed for cause by the Governor.

18         3.  Each appeal from an order of a judge of

19  compensation claims shall be considered by a commission panel

20  which shall consist of two commissioners and the presiding

21  commissioner.

22         4.  Prior to the expiration of the term of office of a

23  commissioner, the conduct of such commissioner shall be

24  reviewed by the statewide nominating commission.  A report of

25  the statewide nominating commission regarding retention shall

26  be furnished to the Governor no later than 6 months prior to

27  the expiration of the term of the commissioner. If the

28  statewide nominating commission recommends retention, the

29  Governor shall reappoint the commissioner.  However, if the

30  statewide nominating commission does not recommend retention,

31  the judges of the respective District Courts of Appeal shall

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

  2  three candidates for appointment.  In the event a vacancy

  3  occurs during an unexpired term of a commissioner on the

  4  Workers' Compensation Appeals Commission, the judges of the

  5  respective District Courts of Appeal shall nominate at least

  6  three candidates in accordance with the procedures set forth

  7  in this section.

  8         5.  The commission is subject to the Code of Judicial

  9  Conduct set forth in s. 440.442.

10         (b)  The presiding commissioner may, by order filed in

11  the records of the commission and with the approval of the

12  Governor, appoint associate commissioners to serve as

13  temporary commissioners of the commission.  Such appointment

14  may be made only of a currently commissioned judge of

15  compensation claims. This appointment shall be for such

16  periods of time as not to cause an undue burden on the

17  caseload in the judge's jurisdiction. Each associate

18  commissioner appointed shall receive no additional pay during

19  the appointment except for expenses incurred in the

20  performance of the additional duties.

21         (c)  The total salaries and benefits of all

22  commissioners of the commission are to be paid from the trust

23  fund created by s. 440.50. Notwithstanding any other provision

24  of law, the commissioners shall be paid a salary equal to that

25  paid under state law to the judges of district courts of

26  appeal.

27         (2)(a)  The commission is vested with all authority,

28  powers, duties, and responsibilities relating to review of

29  orders of judges of compensation claims in workers'

30  compensation proceedings under chapter 440. The commission

31  shall review by appeal final orders of the judges of

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  1  compensation claims entered pursuant to chapter 440.  The

  2  First District Court of Appeal shall retain jurisdiction over

  3  all workers' compensation proceedings pending before it on

  4  October 1, 2001. The commission may hold sessions and conduct

  5  hearings at any place within the state.  A panel of three

  6  commissioners shall consider each case and the concurrence of

  7  two shall be necessary to a decision. Any commissioner may

  8  request an en banc hearing for review of a final order of a

  9  judge of compensation claims.

10         (b)  The commission shall be located within the

11  Department of Administration but, in the performance of its

12  powers and duties under chapter 440, shall not be subject to

13  control, supervision, or direction by the department. The

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

15         (c)  The property, personnel, and appropriations

16  related to the commission's specified authority, powers,

17  duties, and responsibilities shall be provided to the

18  commission by the Department of Labor and Employment Security.

19         (3)  The commission shall make such expenditures,

20  including expenditures for personnel services and rent at the

21  seat of the government and elsewhere, for law books, reference

22  materials, periodicals, furniture, equipment, and supplies,

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

24  exercising its authority and powers and carrying out its

25  duties and responsibilities. Expenditures of the commission

26  shall be allowed and paid from the trust fund created by s.

27  440.50, upon the presentation of itemized vouchers therefor

28  approved by the presiding commissioner.

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

30  publications, subscriptions, and copies of records and

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  1  documents.  Such fees shall be deposited in the trust fund

  2  established in s. 440.50.

  3         (5)(a)  The presiding commissioner shall exercise

  4  administrative supervision over the Workers' Compensation

  5  Appeals Commission and over the judges and other officers of

  6  such courts.

  7         (b)  The presiding commissioner of the Workers'

  8  Compensation Appeals Commission shall have the power to:

  9         1.  Assign commissioners to hear appeals from final

10  orders of judges of compensation claims.

11         2.  Hire and assign clerks and staff.

12         3.  Regulate use of courtrooms.

13         4.  Supervise dockets and calendars.

14         5.  Do everything necessary to promote the prompt and

15  efficient administration of justice in the courts over which

16  he or she presides.

17         (c)  The presiding commissioner may appoint an

18  executive assistant to perform such duties as the presiding

19  judge may direct. The commission shall be authorized to employ

20  research assistants or law clerks to assist the judges in

21  performing their duties under this section.

22         (6)(a)  The commission shall maintain and keep open

23  during reasonable business hours a clerk's office, provided in

24  the Capitol Complex or some other suitable building in Leon

25  County for the transaction of its business. All books, papers,

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

27  at this office. The office shall be furnished and equipped by

28  the commission.

29         (b)  The commission shall appoint a clerk who shall

30  hold office at the pleasure of the commission. Before entering

31  upon the discharge of his or her duties, the clerk shall give

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  1  bond in the sum of $5,000 payable to the Governor of this

  2  state, to be approved by a majority of the members of the

  3  commission conditioned upon the faithful discharge of the

  4  duties of the office, which bond shall be filed in the office

  5  of the Secretary of State.

  6         (c)  The clerk shall be paid an annual salary pursuant

  7  to chapter 25.

  8         (d)  The clerk is authorized to employ such deputies

  9  and clerical assistants as may be necessary. Their number and

10  compensation shall be approved by the commission and paid from

11  the annual appropriation for the commission from the Workers'

12  Compensation Administration Trust Fund.

13         (e)  The clerk, upon filing of a certified copy of a

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

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

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

17  records, papers, or other instruments, and for the other

18  services the same service charges as provided for in s. 28.24.

19  The state or its agencies, when appearing as appellant or

20  petitioner, is exempt from the filing fee required in this

21  subsection.

22         (f)  The clerk of the commission shall prepare a

23  statement of all fees collected in duplicate each month and

24  remit one copy of said statement, together with all fees

25  collected by him or her, to the Comptroller who shall place

26  the same to the credit of the Workers' Compensation

27  Administration Trust Fund.

28         (7)  The commission shall have a seal for

29  authentication of its orders, awards, and proceedings, upon

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

31

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

  2  judicially noticed.

  3         (8)  The commission is expressly authorized to destroy

  4  obsolete records of the commission.

  5         (9)  Commissioners shall be reimbursed for travel

  6  expenses as provided in s. 112.061.

  7         (10)  The practice and procedure before the commission

  8  and judges of compensation claims shall be governed by rules

  9  adopted by the commission except to the extent that such rules

10  conflict with the provisions of chapter 440.

11         Section 23.  Section 440.45, Florida Statutes, is

12  amended to read:

13         440.45  Office of the Judges of Compensation Claims.--

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

15  of Compensation Claims within the Division of Administrative

16  Hearings Department of Labor and Employment Security. The

17  Office of the Judges of Compensation Claims shall be headed by

18  a Chief Judge.  The Chief Judge shall be appointed by the

19  Governor for a term of 4 years from a list of three names

20  submitted by the statewide nominating commission created under

21  subsection (2). The Chief Judge must possess the same

22  qualifications for appointment as a judge of compensation

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

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

25  compensation claims. The office shall be a separate budget

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

27  purposes.  The division Department of Labor and Employment

28  Security shall provide administrative support and service to

29  the office to the extent requested by the Chief Judge but

30  shall not direct, supervise, or control the Office of the

31  Judges of Compensation Claims in any manner, including, but

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  1  not limited to, personnel, purchasing, budgetary matters, or

  2  property transactions. The operating budget of the Office of

  3  the Judges of Compensation Claims shall be paid out of the

  4  Workers' Compensation Administration Trust Fund established in

  5  s. 440.50.

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

  7  compensation claims to conduct proceedings as required by this

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

  9  judge of compensation claims unless he or she has been a

10  member of The Florida Bar in good standing and is

11  knowledgeable in the practice of law of workers' compensation.

12  No judge of compensation claims shall engage in the private

13  practice of law during a term of office.

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

15  shall appoint a judge of compensation claims from a list of

16  three persons nominated by a statewide nominating commission.

17  The statewide nominating commission shall be composed of the

18  following:

19         1.  Five members, at least one of whom must be a member

20  of a minority group as defined in s. 288.703(3), one of each

21  who resides in each of the territorial jurisdictions of the

22  district courts of appeal, appointed by the Board of Governors

23  of The Florida Bar from among The Florida Bar members who are

24  engaged in the practice of law. On July 1, 1999, the term of

25  office of each person appointed by the Board of Governors of

26  The Florida Bar to the commission expires. The Board of

27  Governors shall appoint members who reside in the odd-numbered

28  district court of appeal jurisdictions to 4-year terms each,

29  beginning July 1, 1999, and members who reside in the

30  even-numbered district court of appeal jurisdictions to 2-year

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  1  terms each, beginning July 1, 1999. Thereafter, each member

  2  shall be appointed for a 4-year term;

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

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

  5  each who resides in each of the territorial jurisdictions of

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

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

  8  the Governor to the commission expires. The Governor shall

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

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

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

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

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

14  4-year term; and

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

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

17  each who resides in the territorial jurisdictions of the

18  district courts of appeal, selected and appointed by a

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

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

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

22  the other members of the commission shall appoint members who

23  reside in the odd-numbered district court of appeal

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

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

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

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

28  4-year term.

29

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

31  original appointing authority for the unexpired balance of the

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

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

  3  statewide nominating commission. The meetings and

  4  determinations of the nominating commission as to the judges

  5  of compensation claims shall be open to the public.

  6         (c)  Each judge of compensation claims shall be

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

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

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

10  nominating commission shall review the judge's conduct and

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

12  determining whether a judge's performance is satisfactory, the

13  commission shall consider the extent to which the judge has

14  met the requirements of this chapter, including, but not

15  limited to, the requirements of ss. 440.192(2), 440.25(1),

16  440.25(4)(a)-(f), 440.34(2), and 440.442. If the commission

17  finds that judges generally are unable to meet a particular

18  requirement of law for reasons beyond their control, the

19  commission shall request the Legislature to review that

20  particular requirement.  If the judge's performance is deemed

21  satisfactory, the commission shall report its finding to the

22  Governor no later than 6 months prior to the expiration of the

23  judge's term of office. The Governor shall review the

24  commission's report and may reappoint the judge for an

25  additional 4-year term. If the Governor does not reappoint the

26  judge, the Governor shall inform the commission. The judge

27  shall remain in office until the Governor has appointed a

28  successor judge in accordance with paragraphs (a) and (b). If

29  a vacancy occurs during a judge's unexpired term, the

30  statewide nominating commission does not find the judge's

31  performance is satisfactory, or the Governor does not

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  1  reappoint the judge, the Governor shall appoint a successor

  2  judge for a term of 4 years in accordance with paragraph (b).

  3         (d)  The Governor may appoint any attorney with 5 years

  4  of experience in the practice of law in this state and who has

  5  expertise in workers' compensation to serve as a judge of

  6  compensation claims pro hac vice in the absence or

  7  disqualification of any full-time judge of compensation claims

  8  or to serve temporarily as an additional judge of compensation

  9  claims in any area of the state in which the Governor

10  determines that a need exists for such additional judge.

11  However, an attorney so appointed by the Governor shall not

12  serve for a period to exceed 90 successive days.

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

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

15  docketing judges. Docketing judges shall review all claims for

16  benefits for consistency with the requirements of this chapter

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

18  specificity requirements, and shall dismiss any claim that

19  fails to comport with such rules and requirements. The

20  docketing judge shall not dismiss any claim with prejudice

21  without offering the parties an opportunity to appear and

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

23  appropriate expand the duties of the docketing judges to

24  include resolution without hearing of other types of

25  procedural and substantive matters, including resolution of

26  fee disputes.

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

28  require mediation and to designate qualified persons to act as

29  mediators in any dispute pending before the judges of

30  compensation claims and the division. The Chief Judge shall

31  coordinate with the Director of the Division of Workers'

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  1  Compensation to establish a mandatory mediation program to

  2  facilitate early and efficient resolution of disputes arising

  3  under this chapter and to establish training and continuing

  4  education for new and sitting judges.

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

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

  7  Such rules shall include procedural rules applicable to

  8  workers' compensation claim resolution and uniform criteria

  9  for measuring the performance of the office, including, but

10  not limited to, the number of cases assigned and disposed, the

11  age of pending and disposed cases, timeliness of

12  decisionmaking, extraordinary fee awards , and the data

13  necessary for the judicial nominating commission to review the

14  performance of judges as required in paragraph (2)(c) and

15  other performance indicators. On or before November 1, 2001,

16  the Office of the Judges of Compensation Claims shall submit a

17  draft of such rules to the Governor, the Speaker of the House

18  of Representatives, and the President of the Senate. The

19  Legislature shall review the draft rules and may approve,

20  modify and approve, disapprove, or take no action on the

21  rules. If the Legislature approves the draft rules, or

22  modifies and approves the draft rules, the office shall adopt

23  the draft rules pursuant to chapter 120.  If the Legislature

24  disapproves the draft rules, the Legislature shall convey the

25  reasons for disapproval to the office for use in redrafting

26  the rules. The workers' compensation rules of procedure

27  approved by the Supreme Court shall apply until the rules

28  promulgated by the Office of the Judges of Compensation Claims

29  pursuant to this section become effective.

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

31  of the Judges of Compensation Claims and the Division of

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  1  Workers' Compensation shall jointly issue a written report to

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

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

  4  resolved in the prior year, summarizing the disposition of

  5  applications and motions for mediation conferences and

  6  recommending changes or improvements to the dispute resolution

  7  elements of the Workers' Compensation Law and regulations.

  8         Section 24.  Paragraph (g) of subsection (4) of section

  9  627.311, Florida Statutes, is amended to read:

10         627.311  Joint underwriters and joint reinsurers.--

11         (4)

12         (g)  Whenever a deficit exists, the plan shall, within

13  90 days, provide the department with a program to eliminate

14  the deficit within a reasonable time. The deficit may be

15  funded through increased premiums charged to insureds of the

16  plan for subsequent years, through the use of policyholder

17  surplus attributable to any year, through the use of

18  policyholder surplus attributable to any year, and through

19  assessments on insureds in the plan if the plan uses

20  assessable policies.

21         Section 25.  Section 627.914, Florida Statutes, is

22  amended to read:

23         627.914  Reports of information by workers'

24  compensation insurers required.--

25         (1)  The department shall promulgate rules and

26  statistical plans which shall thereafter be used by each

27  insurer, and self-insurance fund as defined in s. 624.461, in

28  the recording and reporting of loss, expense, and claims

29  experience, in order that the experience of all insurers and

30  self-insurance funds self-insurers may be made available at

31  least annually in such form and detail as may be necessary to

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  1  aid the department in determining whether Florida experience

  2  for workers' compensation insurance is sufficient for

  3  establishing rates.

  4         (2)  Any insurer authorized to write a policy of

  5  workers' compensation insurance shall transmit the following

  6  information to the department each year with its annual

  7  report, and such information shall be reported on a net basis

  8  with respect to reinsurance for nationwide experience and on a

  9  direct basis for Florida experience:

10         (a)  Premiums written;

11         (b)  Premiums earned;

12         (c)  Dividends paid or credited to policyholders;

13         (d)  Losses paid;

14         (e)  Allocated loss adjustment expenses;

15         (f)  The ratio of allocated loss adjustment expenses to

16  losses paid;

17         (g)  Unallocated loss adjustment expenses;

18         (h)  The ratio of unallocated loss adjustment expenses

19  to losses paid;

20         (i)  The total of losses paid and unallocated and

21  allocated loss adjustment expenses;

22         (j)  The ratio of losses paid and unallocated and

23  allocated loss adjustment expenses to premiums earned;

24         (k)  The number of claims outstanding as of December 31

25  of each year;

26         (l)  The total amount of losses unpaid as of December

27  31 of each year;

28         (m)  The total amount of allocated and unallocated loss

29  adjustment expenses unpaid as of December 31 of each year; and

30         (n)  The total of losses paid and allocated loss

31  adjustment expenses and unallocated loss adjustment expenses,

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  1  plus the total of losses unpaid as of December 31 of each year

  2  and loss adjustment expenses unpaid as of December 31 of each

  3  year.

  4         (3)  A report of the information required in subsection

  5  (2) shall be filed no later than April 1 of each year and

  6  shall include the information for the preceding year ending

  7  December 31. All reports shall be on a calendar-accident year

  8  basis, and each calendar-accident year shall be reported at

  9  eight stages of development.

10         (2)(4)  Each insurer and self-insurance fund authorized

11  to write a policy of workers' compensation insurance shall

12  transmit the following information for paragraphs (a), (b),

13  (d), and (e) annually on both Florida experience and

14  nationwide experience separately:

15         (a)  Payrolls by classification.

16         (b)  Manual premiums by classification.

17         (c)  Standard premiums by classification.

18         (d)  Losses by classification and injury type.

19         (e)  Expenses.

20

21  A report of this information shall be filed no later than July

22  April 1 of each year.  All reports shall be filed in

23  accordance with standard reporting procedures for insurers,

24  which procedures have received approval by the department, and

25  shall contain data for the most recent policy period

26  available.  A statistical rating organization may be used by

27  insurers and self-insurance funds to report the data required

28  by this section.  The statistical rating organization shall

29  report each data element in the aggregate only for insurers

30  and self-insurance funds required to report under this section

31

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  1  who elect to have the rating organization report on their

  2  behalf. Such insurers shall be named in the report.

  3         (3)(5)  Individual self-insurers as defined authorized

  4  to transact workers' compensation insurance as provided in s.

  5  440.02 shall report only Florida data as prescribed in

  6  paragraphs (a)-(e) of subsection (2) (4) to the Division of

  7  Workers' Compensation of the Department of Labor and

  8  Employment Security.

  9         (a)  The Division of Workers' Compensation shall

10  publish the dates and forms necessary to enable self-insurers

11  to comply with this section.

12         (b)  The Division of Workers' Compensation shall report

13  the information collected under this section to the Department

14  of Insurance in a manner prescribed by the department.

15         (b)(c)  A statistical or rating organization may be

16  used by self-insurers for the purposes of reporting the data

17  required by this section and calculating experience ratings.

18         (4)(6)  The department shall provide a summary of

19  information provided pursuant to subsection subsections (2)

20  and (4) in its annual report.

21         Section 26.  Subsection (37) of section 440.02, Florida

22  Statutes, and paragraph (d) of subsection (1) of section

23  440.13, Florida Statutes, are repealed.

24         Section 27.  This act shall take effect October 1,

25  2001.

26

27

28

29

30

31

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Revises various provisions of workers' compensation law.
  4    Substantially revises election of exemption provisions.
      Revises provisions relating to the Employee Assistance
  5    and Ombudsman Office. Revises petition for benefits
      provisions. Revises procedures and requirements for
  6    mediation and hearings. Revises provisions relating to
      award of attorney's fees. Revises provisions relating to
  7    judges of compensation claims. Substantially revises
      Workers' Compensation Oversight Board provisions by
  8    replacing the board with the Workers' Compensation
      Appeals Commission. See bill for details.
  9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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