House Bill hb1803
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Florida House of Representatives - 2001 HB 1803
By the Committee on Insurance and Representatives Waters,
Melvin, Brown, Berfield, Kallinger, McGriff, Clarke, Simmons,
Sobel, Ross, Negron, Fields and Wiles
1 A bill to be entitled
2 An act relating to workers' compensation;
3 amending s. 61.14, F.S.; requiring judges of
4 compensation claims to consider the interests
5 of the worker and the worker's dependents when
6 approving settlements of workers' compensation
7 claims; requiring appropriate recovery of any
8 child support arrearage from such settlements;
9 amending s. 61.30, F.S.; providing that gross
10 income includes all workers' compensation
11 benefits and settlements; amending s. 440.02,
12 F.S.; revising a monetary limit in a
13 definition; excluding certain sports officials
14 from the definition of "employee"; excluding
15 certain work done by state prisoners and county
16 inmates from the definition of "employment";
17 amending s. 440.09, F.S.; excluding employees
18 covered under the Defense Base Act from payment
19 of benefits; amending s. 440.12, F.S.;
20 providing for direct deposit of compensation
21 payments; amending s. 440.13, F.S.; deleting a
22 physician eligibility requirement; revising
23 requirements for submission of certain medical
24 reports and bills; granting rehabilitation
25 providers access to medical records; amending
26 s. 440.14, F.S.; providing criteria for
27 including lost wages from concurrent employment
28 in determinations of pay; amending s. 440.185,
29 F.S.; authorizing the division to contract with
30 a private entity for collection of certain
31 policy information; providing application;
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1 amending s. 440.192, F.S.; revising
2 requirements and procedures for filing
3 petitions for benefits; authorizing the
4 division to adopt a petition for benefits form
5 by rule; permitting judges to dismiss portions
6 of a petition; specifying that dismissal of
7 petitions is without prejudice; providing for a
8 response to petition instead of a notice of
9 denial for certain purposes; amending s.
10 440.20, F.S.; providing for payment of
11 compensation by direct deposit under certain
12 circumstances; revising the period for payment;
13 revising lump-sum settlement requirements;
14 amending s. 440.22, F.S.; excluding child
15 support and alimony claims from general
16 exemption of workers' compensation benefits
17 from claims of creditors; amending s. 440.25,
18 F.S.; revising mediation procedures; deleting
19 participation by the Division of Workers'
20 Compensation in certain indigency petitions;
21 amending s. 440.271, F.S.; requiring the First
22 District Court of Appeal to establish a
23 specialized division to hear workers'
24 compensation cases; amending s. 440.34, F.S.;
25 including responses to petitions under certain
26 attorney's fees provisions and limitations;
27 amending s. 440.38, F.S.; providing for the
28 type of qualifying security deposit necessary
29 to become a self-insured employer; providing
30 requirements, procedures, and criteria;
31 correcting a cross reference; amending s.
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1 440.45, F.S.; requiring the judicial nominating
2 commission to consider whether judges of
3 compensation claims have met certain
4 requirements; providing procedures; authorizing
5 the Governor to appoint certain judges of
6 compensation claims; requiring the Office of
7 the Judges of Compensation Claims to adopt
8 certain additional rules; providing additional
9 criteria for such rules; amending s. 440.593,
10 F.S.; providing the division with enforcement
11 authority relating to electronic reporting;
12 authorizing the division to impose a civil
13 penalty; authorizing the division to adopt
14 rules; amending ss. 489.114 and 489.510, F.S.;
15 providing an exception to certain workers'
16 compensation coverage evidence requirements;
17 amending ss. 489.115 and 489.515, F.S.;
18 revising certification and registration
19 requirements for initial licensure; amending s.
20 627.311, F.S.; clarifying language with respect
21 to joint underwriters' liability for monetary
22 damages; amending s. 627.914, F.S.; revising
23 the requirements for reports of information by
24 workers' compensation insurers; deleting a
25 reporting requirement for the Division of
26 Workers' Compensation; amending s. 440.49,
27 F.S., to conform; repealing s. 440.45(3), F.S.,
28 relating to judges of compensation claims
29 serving as docketing judges; repealing s.
30 440.49(2)(f) and (g), (13), and (14), F.S.,
31 relating to the Special Disability Trust Fund
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1 Privatization Commission and the Florida
2 Special Disability Trust Fund Financing
3 Corporation; repealing s. 440.59(2), F.S.,
4 relating to required quarterly reports;
5 providing effective dates.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Subsection (8) of section 61.14, Florida
10 Statutes, is amended to read:
11 61.14 Enforcement and modification of support,
12 maintenance, or alimony agreements or orders.--
13 (8)(a) When reviewing a lump-sum settlement for
14 approval pursuant to s. 440.20(11)(a) and (b), judges of
15 compensation claims shall consider the interests of the
16 claimant and the claimant's dependents when approving the
17 settlement. The settlement must provide for appropriate
18 recovery of child support arrearage.
19 (b) In accordance with Notwithstanding the provisions
20 of s. 440.22, any compensation due or that may become due an
21 employee under chapter 440 is exempt from garnishment,
22 attachment, execution, and assignment of income, except for
23 the purposes of enforcing child or spousal support
24 obligations.
25 Section 2. Paragraph (a) of subsection (2) of section
26 61.30, Florida Statutes, is amended to read:
27 61.30 Child support guidelines; retroactive child
28 support.--
29 (2) Income shall be determined on a monthly basis for
30 the obligor and for the obligee as follows:
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1 (a) Gross income shall include, but is not limited to,
2 the following items:
3 1. Salary or wages.
4 2. Bonuses, commissions, allowances, overtime, tips,
5 and other similar payments.
6 3. Business income from sources such as
7 self-employment, partnership, close corporations, and
8 independent contracts. "Business income" means gross receipts
9 minus ordinary and necessary expenses required to produce
10 income.
11 4. Disability benefits.
12 5. All workers' worker's compensation benefits and
13 settlements.
14 6. Unemployment compensation.
15 7. Pension, retirement, or annuity payments.
16 8. Social security benefits.
17 9. Spousal support received from a previous marriage
18 or court ordered in the marriage before the court.
19 10. Interest and dividends.
20 11. Rental income, which is gross receipts minus
21 ordinary and necessary expenses required to produce the
22 income.
23 12. Income from royalties, trusts, or estates.
24 13. Reimbursed expenses or in kind payments to the
25 extent that they reduce living expenses.
26 14. Gains derived from dealings in property, unless
27 the gain is nonrecurring.
28 Section 3. Subsection (4), paragraph (d) of subsection
29 (14), and paragraph (c) of subsection (16) of section 440.02,
30 Florida Statutes, are amended to read:
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1 440.02 Definitions.--When used in this chapter, unless
2 the context clearly requires otherwise, the following terms
3 shall have the following meanings:
4 (4) "Casual" as used in this section shall be taken to
5 refer only to employments when the work contemplated is to be
6 completed in not exceeding 10 working days, without regard to
7 the number of persons employed, and when the total labor cost
8 of such work is less than $500 $100.
9 (14)
10 (d) "Employee" does not include:
11 1. An independent contractor, if:
12 a. The independent contractor maintains a separate
13 business with his or her own work facility, truck, equipment,
14 materials, or similar accommodations;
15 b. The independent contractor holds or has applied for
16 a federal employer identification number, unless the
17 independent contractor is a sole proprietor who is not
18 required to obtain a federal employer identification number
19 under state or federal requirements;
20 c. The independent contractor performs or agrees to
21 perform specific services or work for specific amounts of
22 money and controls the means of performing the services or
23 work;
24 d. The independent contractor incurs the principal
25 expenses related to the service or work that he or she
26 performs or agrees to perform;
27 e. The independent contractor is responsible for the
28 satisfactory completion of work or services that he or she
29 performs or agrees to perform and is or could be held liable
30 for a failure to complete the work or services;
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1 f. The independent contractor receives compensation
2 for work or services performed for a commission or on a
3 per-job or competitive-bid basis and not on any other basis;
4 g. The independent contractor may realize a profit or
5 suffer a loss in connection with performing work or services;
6 h. The independent contractor has continuing or
7 recurring business liabilities or obligations; and
8 i. The success or failure of the independent
9 contractor's business depends on the relationship of business
10 receipts to expenditures.
11
12 However, the determination as to whether an individual
13 included in the Standard Industrial Classification Manual of
14 1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,
15 0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,
16 2448, or 2449, or a newspaper delivery person, is an
17 independent contractor is governed not by the criteria in this
18 paragraph but by common-law principles, giving due
19 consideration to the business activity of the individual.
20 2. A real estate salesperson or agent, if that person
21 agrees, in writing, to perform for remuneration solely by way
22 of commission.
23 3. Bands, orchestras, and musical and theatrical
24 performers, including disk jockeys, performing in licensed
25 premises as defined in chapter 562, if a written contract
26 evidencing an independent contractor relationship is entered
27 into before the commencement of such entertainment.
28 4. An owner-operator of a motor vehicle who transports
29 property under a written contract with a motor carrier which
30 evidences a relationship by which the owner-operator assumes
31 the responsibility of an employer for the performance of the
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1 contract, if the owner-operator is required to furnish the
2 necessary motor vehicle equipment and all costs incidental to
3 the performance of the contract, including, but not limited
4 to, fuel, taxes, licenses, repairs, and hired help; and the
5 owner-operator is paid a commission for transportation service
6 and is not paid by the hour or on some other time-measured
7 basis.
8 5. A person whose employment is both casual and not in
9 the course of the trade, business, profession, or occupation
10 of the employer.
11 6. A volunteer, except a volunteer worker for the
12 state or a county, municipality, or other governmental entity.
13 A person who does not receive monetary remuneration for
14 services is presumed to be a volunteer unless there is
15 substantial evidence that a valuable consideration was
16 intended by both employer and employee. For purposes of this
17 chapter, the term "volunteer" includes, but is not limited to:
18 a. Persons who serve in private nonprofit agencies and
19 who receive no compensation other than expenses in an amount
20 less than or equivalent to the standard mileage and per diem
21 expenses provided to salaried employees in the same agency or,
22 if such agency does not have salaried employees who receive
23 mileage and per diem, then such volunteers who receive no
24 compensation other than expenses in an amount less than or
25 equivalent to the customary mileage and per diem paid to
26 salaried workers in the community as determined by the
27 division; and
28 b. Volunteers participating in federal programs
29 established under Pub. L. No. 93-113.
30 7. Any officer of a corporation who elects to be
31 exempt from this chapter.
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1 8. A sole proprietor or officer of a corporation who
2 actively engages in the construction industry, and a partner
3 in a partnership that is actively engaged in the construction
4 industry, who elects to be exempt from the provisions of this
5 chapter. Such sole proprietor, officer, or partner is not an
6 employee for any reason until the notice of revocation of
7 election filed pursuant to s. 440.05 is effective.
8 9. An exercise rider who does not work for a single
9 horse farm or breeder, and who is compensated for riding on a
10 case-by-case basis, provided a written contract is entered
11 into prior to the commencement of such activity which
12 evidences that an employee/employer relationship does not
13 exist.
14 10. A taxicab, limousine, or other passenger
15 vehicle-for-hire driver who operates said vehicles pursuant to
16 a written agreement with a company which provides any
17 dispatch, marketing, insurance, communications, or other
18 services under which the driver and any fees or charges paid
19 by the driver to the company for such services are not
20 conditioned upon, or expressed as a proportion of, fare
21 revenues.
22 11. A person who performs services as a sports
23 official for an extracurricular interscholastic sports event.
24 For purposes of this subparagraph, the term "sports official"
25 means any person who is a neutral participant in a sports
26 event, including, but not limited to, umpires, referees,
27 judges, linespersons, scorekeepers, or timekeepers. This
28 subparagraph does not apply to any person employed by a school
29 board who serves as a sports official as required by the
30 employing school board or who serves as a sports official as
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1 part of his or her responsibilities during normal school
2 hours.
3 (16)
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 5. State prisoners or county inmates, except those
25 performing services for private employers or those enumerated
26 in s. 948.03(8)(a).
27 Section 4. Subsection (2) of section 440.09, Florida
28 Statutes, is amended to read:
29 440.09 Coverage.--
30 (2) Benefits are not payable in respect of the
31 disability or death of any employee covered by the Federal
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1 Employer's Liability Act, the Longshoremen's and Harbor
2 Worker's Compensation Act, the Defense Base Act, or the Jones
3 Act.
4 Section 5. Subsection (1) of section 440.12, Florida
5 Statutes, is amended to read:
6 440.12 Time for commencement and limits on weekly rate
7 of compensation.--
8 (1) No compensation shall be allowed for the first 7
9 days of the disability, except benefits provided for in s.
10 440.13. However, if the injury results in disability of more
11 than 21 days, compensation shall be allowed from the
12 commencement of the disability. All weekly compensation
13 payments, except for the first payment, shall be paid by check
14 or, if authorized by the employee, deposited directly into the
15 employee's account at a financial institution. For purposes of
16 this subsection, the term "financial institution" means a
17 financial institution as defined in s. 655.005(1)(h).
18 Section 6. Paragraph (a) of subsection (3) and
19 paragraphs (b) and (c) of subsection (4) of section 440.13,
20 Florida Statutes, are amended to read:
21 440.13 Medical services and supplies; penalty for
22 violations; limitations.--
23 (3) PROVIDER ELIGIBILITY; AUTHORIZATION.--
24 (a) As a condition to eligibility for payment under
25 this chapter, a health care provider who renders services must
26 be a certified health care provider and must receive
27 authorization from the carrier before providing treatment.
28 This paragraph does not apply to emergency care. The division
29 shall adopt rules to implement the certification of health
30 care providers. As a one-time prerequisite to obtaining
31 certification, the division shall require each physician to
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1 demonstrate proof of completion of a minimum 5-hour course
2 that covers the subject areas of cost containment, utilization
3 control, ergonomics, and the practice parameters adopted by
4 the division governing the physician's field of practice. The
5 division shall coordinate with the Agency for Health Care
6 Administration, the Florida Medical Association, the Florida
7 Osteopathic Medical Association, the Florida Chiropractic
8 Association, the Florida Podiatric Medical Association, the
9 Florida Optometric Association, the Florida Dental
10 Association, and other health professional organizations and
11 their respective boards as deemed necessary by the Agency for
12 Health Care Administration in complying with this subsection.
13 No later than October 1, 1994, the division shall adopt rules
14 regarding the criteria and procedures for approval of courses
15 and the filing of proof of completion by the physicians.
16 (4) NOTICE OF TREATMENT TO CARRIER; FILING WITH
17 DIVISION.--
18 (b) Upon the request of the Division of Workers'
19 Compensation, each medical report or bill obtained or received
20 by the employer, the carrier, or the injured employee, or the
21 attorney for the employer, carrier, or injured employee, with
22 respect to the remedial treatment, or care, or attendance of
23 the injured employee, including any report of an examination,
24 diagnosis, or disability evaluation, must be filed with the
25 Division of Workers' Compensation pursuant to rules adopted by
26 the division. The health care provider shall also furnish to
27 the injured employee or to his or her attorney, on demand, a
28 copy of his or her office chart, records, and reports, and may
29 charge the injured employee an amount authorized by the
30 division for the copies. Each such health care provider shall
31 provide to the division any additional information about the
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1 remedial treatment, care, and attendance that the division
2 reasonably requests.
3 (c) It is the policy for the administration of the
4 workers' compensation system that there be reasonable access
5 to medical information by all parties to facilitate the
6 self-executing features of the law. Notwithstanding the
7 limitations in s. 456.057 and subject to the limitations in s.
8 381.004, upon the request of the employer, the carrier, a
9 qualified rehabilitation provider authorized by the employer
10 or carrier, or the attorney for the employer or carrier either
11 of them, the medical records of an injured employee must be
12 furnished to those persons and the medical condition of the
13 injured employee must be discussed with those persons, if the
14 records and the discussions are restricted to conditions
15 relating to the workplace injury. Any such discussions may be
16 held before or after the filing of a claim without the
17 knowledge, consent, or presence of any other party or his or
18 her agent or representative. A health care provider who
19 willfully refuses to provide medical records or to discuss the
20 medical condition of the injured employee, after a reasonable
21 request is made for such information pursuant to this
22 subsection, shall be subject by the division to one or more of
23 the penalties set forth in paragraph (8)(b).
24 Section 7. Subsection (5) is added to section 440.14,
25 Florida Statutes, to read:
26 440.14 Determination of pay.--
27 (5)(a) If lost wages from concurrent employment are
28 used in calculating the employee's average weekly wage, the
29 employee shall be responsible for providing evidence of the
30 loss of earnings from the concurrent employment.
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1 (b) The employee shall be deemed to have waived any
2 entitlement to interest, penalties, and attorney's fees during
3 the period in which the employee has not provided information
4 concerning the loss of earnings from concurrent employment.
5 Carriers shall not be subject to penalties by the division
6 pursuant to s. 440.20(8)(b) and (c) for unpaid compensation
7 related to concurrent employment during the period in which
8 the employee has not provided information concerning the loss
9 of earnings from concurrent employment.
10 Section 8. 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 days after the issuance of a policy or contract of
16 insurance such policy information as the division may require,
17 including notice of whether the policy is a minimum premium
18 policy. Notice of cancellation or expiration of a policy as
19 set out in s. 440.42(3) shall be mailed to the division in
20 accordance with rules promulgated by the division under
21 chapter 120. The division may contract with a private entity
22 for the collection of policy information required to be filed
23 by carriers pursuant to this subsection and the receipt of
24 notices of policy cancellation or expiration required to be
25 filed by carriers pursuant to s. 440.42(3). The submission of
26 policy information or notices of cancellation or expiration to
27 the contracted private entity satisfies the filing
28 requirements of this subsection and s. 440.42(3).
29 Section 9. Subsections (1), (2), (5), and (8) of
30 section 440.192, Florida Statutes, are amended to read:
31 440.192 Procedure for resolving benefit disputes.--
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1 (1) Subject to s. 440.191, any employee who has not
2 received a benefit to which the employee believes she or he is
3 entitled under this chapter shall file by certified mail, or
4 by electronic means approved by the Chief Judge, with the
5 appropriate local office of the judges of compensation claims
6 a petition for benefits meeting the requirements of this
7 section. The division shall inform employees of the location
8 of the appropriate office of the judges of compensation claims
9 for purposes of filing a petition for benefits. The employee
10 shall also serve copies of the petition for benefits by
11 certified mail, or by electronic means approved by the Chief
12 Judge, upon the employer, the employer's carrier, and the
13 division in Tallahassee. The division shall adopt by rule a
14 standardized petition for benefits form that meets the
15 requirements of this section. The division shall refer the
16 petition to the Office of the Judges of Compensation Claims.
17 (2) Upon receipt, the judge Office of the Judges of
18 compensation claims shall review each petition and shall
19 dismiss each petition or any portion of the petition, upon the
20 judge's its own motion or upon the motion of any party, that
21 does not on its face specifically identify or itemize the
22 following:
23 (a) Name, address, telephone number, and social
24 security number of the employee.
25 (b) Name, address, and telephone number of the
26 employer.
27 (c) A detailed description of the injury and cause of
28 the injury, including the location of the occurrence and the
29 date or dates of the accident.
30
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1 (d) A detailed description of the employee's job, work
2 responsibilities, and work the employee was performing when
3 the injury occurred.
4 (e) The time period for which compensation was not
5 timely provided and the specific classification of the
6 compensation.
7 (f) Date of maximum medical improvement, character of
8 disability, and specific statement of all benefits or
9 compensation that the employee is seeking.
10 (g) The specific All travel costs to which the
11 employee believes she or he is entitled, including dates of
12 travel and purpose of travel, means of transportation, and
13 mileage, including the date the request for mileage was filed
14 with the carrier and a copy of the request.
15 (h) Specific listing of all medical charges alleged
16 unpaid, including the name and address of the medical
17 provider, the amounts due, and the specific dates of
18 treatment.
19 (i) The type or nature of treatment care or attendance
20 sought and the justification for such treatment.
21 (j) Specific explanation of any other disputed issue
22 that a judge of compensation claims will be called to rule
23 upon.
24
25 The dismissal of any petition or portion of a petition under
26 this section shall be without prejudice and shall not require
27 a hearing.
28 (5) All motions to dismiss must state with
29 particularity the basis for the motion. The judge of
30 compensation claims shall enter an order upon such motions
31 without hearing, unless good cause for hearing is shown. When
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1 any petition or portion of a petition is dismissed for lack of
2 specificity under this subsection, the claimant must be
3 allowed 20 days after the date of the order of dismissal in
4 which to file an amended petition. Any grounds for dismissal
5 for lack of specificity under this section not asserted within
6 30 days after receipt of the petition for benefits are thereby
7 waived.
8 (8) Within 14 days after receipt of a petition for
9 benefits by certified mail, the carrier must either pay the
10 requested benefits without prejudice to its right to deny
11 within 120 days from receipt of the petition or file a
12 response to petition notice of denial with the division. The
13 carrier must list all benefits requested but not paid and
14 explain its justification for nonpayment in the response to
15 petition notice of denial. A carrier that does not deny
16 compensability in accordance with s. 440.20(4) is deemed to
17 have accepted the employee's injuries as compensable, unless
18 it can establish material facts relevant to the issue of
19 compensability that could not have been discovered through
20 reasonable investigation within the 120-day period. The
21 carrier shall provide copies of the response notice to the
22 filing party, employer, and claimant by certified mail.
23 Section 10. Paragraph (a) of subsection (1),
24 subsection (6), and paragraph (a) of subsection (11) of
25 section 440.20, Florida Statutes, are amended, and paragraph
26 (d) is added to subsection (11) of said section, to read:
27 440.20 Time for payment of compensation; penalties for
28 late payment.--
29 (1)(a) Unless it denies compensability or entitlement
30 to benefits, the carrier shall pay compensation directly to
31 the employee as required by ss. 440.14, 440.15, and 440.16, in
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1 accordance with the obligations set forth in such sections. If
2 authorized by the employee, the carrier's obligation to pay
3 compensation directly to the employee is satisfied when the
4 carrier directly deposits, by electronic transfer or other
5 means, compensation into the employee's account at a financial
6 institution. For purposes of this paragraph, the term
7 "financial institution" means a financial institution as
8 defined in s. 655.005(1)(h). Compensation by direct deposit
9 shall be deemed paid on the date the funds become available
10 for withdrawal by the employee.
11 (6) If any installment of compensation for death or
12 dependency benefits, disability, permanent impairment, or wage
13 loss payable without an award is not paid within 7 days after
14 it becomes due, as provided in subsection (2), subsection (3),
15 or subsection (4), there shall be added to such unpaid
16 installment a punitive penalty of an amount equal to 20
17 percent of the unpaid installment or $5, which shall be paid
18 at the same time as, but in addition to, such installment of
19 compensation, unless notice is filed under subsection (4) or
20 unless such nonpayment results from conditions over which the
21 employer or carrier had no control. When any installment of
22 compensation payable without an award has not been paid within
23 7 days after it became due and the claimant concludes the
24 prosecution of the claim before a judge of compensation claims
25 without having specifically claimed additional compensation in
26 the nature of a penalty under this section, the claimant will
27 be deemed to have acknowledged that, owing to conditions over
28 which the employer or carrier had no control, such installment
29 could not be paid within the period prescribed for payment and
30 to have waived the right to claim such penalty. However,
31 during the course of a hearing, the judge of compensation
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1 claims shall on her or his own motion raise the question of
2 whether such penalty should be awarded or excused. The
3 division may assess without a hearing the punitive penalty
4 against either the employer or the insurance carrier,
5 depending upon who was at fault in causing the delay. The
6 insurance policy cannot provide that this sum will be paid by
7 the carrier if the division or the judge of compensation
8 claims determines that the punitive penalty should be made by
9 the employer rather than the carrier. Any additional
10 installment of compensation paid by the carrier pursuant to
11 this section shall be paid directly to the employee by check
12 or, if authorized by the employee, by direct deposit into the
13 employee's account at a financial institution. For purposes of
14 this subsection, the term "financial institution" means a
15 financial institution as defined in s. 655.005(1)(h).
16 (11)(a) Upon joint petition of all interested parties,
17 a lump-sum payment in exchange for the employer's or carrier's
18 release from liability for future medical expenses, as well as
19 future payments of compensation expenses and any other
20 benefits provided under this chapter, shall be allowed at any
21 time in any case in which the employer or carrier has filed a
22 written notice of denial or response to petition within 120
23 days after the employer receives notice date of the injury,
24 and the judge of compensation claims at a hearing to consider
25 the settlement proposal finds a justiciable controversy as to
26 legal or medical compensability of the claimed injury or the
27 alleged accident. A judge of compensation claims shall not be
28 required to hold a hearing if the claimant is represented by
29 an attorney and all parties stipulate that a hearing is
30 unnecessary. The employer or carrier may not pay any
31 attorney's fees on behalf of the claimant for any settlement
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1 under this section unless expressly authorized elsewhere in
2 this chapter. Upon the joint petition of all interested
3 parties and after giving due consideration to the interests of
4 all interested parties, the judge of compensation claims may
5 enter a compensation order approving and authorizing the
6 discharge of the liability of the employer for compensation
7 and remedial treatment, care, and attendance, as well as
8 rehabilitation expenses, by the payment of a lump sum. Such a
9 compensation order so entered upon joint petition of all
10 interested parties is not subject to modification or review
11 under s. 440.28. If the settlement proposal together with
12 supporting evidence is not approved by the judge of
13 compensation claims, it shall be considered void. Upon
14 approval of a lump-sum settlement under this subsection, the
15 judge of compensation claims shall send a report to the Chief
16 Judge of the amount of the settlement and a statement of the
17 nature of the controversy. The Chief Judge shall keep a record
18 of all such reports filed by each judge of compensation claims
19 and shall submit to the Legislature a summary of all such
20 reports filed under this subsection annually by September 15.
21 (d) When reviewing a lump-sum settlement for approval
22 pursuant to this subsection, judges of compensation claims
23 shall consider the interests of the claimant and the
24 claimant's dependents when approving the settlement. The
25 settlement must provide for appropriate recovery of child
26 support arrearage.
27 Section 11. Section 440.22, Florida Statutes, is
28 amended to read:
29 440.22 Assignment and exemption from claims of
30 creditors.--No assignment, release, or commutation of
31 compensation or benefits due or payable under this chapter
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1 except as provided by this chapter shall be valid, and such
2 compensation and benefits shall be exempt from all claims of
3 creditors, and from levy, execution and attachments or other
4 remedy for recovery or collection of a debt, which exemption
5 may not be waived. However, the exemption of compensation and
6 benefits from the claims of creditors shall not extend to
7 claims based on an award of child support or alimony.
8 Section 12. Subsection (1) and paragraph (b) of
9 subsection (5) of section 440.25, Florida Statutes, are
10 amended to read:
11 440.25 Procedures for mediation and hearings.--
12 (1) Within 21 days after a petition for benefits is
13 filed under s. 440.192, a mediation conference concerning such
14 petition shall be held. Within 7 days after such petition is
15 filed, the judge of compensation claims shall notify the
16 interested parties that a mediation conference concerning such
17 petition will be held. Such notice shall give the date, time,
18 and location of the mediation conference. Such notice may be
19 served personally upon the interested parties or may be sent
20 to the interested parties by mail. The claimant, or the
21 adjuster of the employer or carrier, may attend the mediation
22 conference by telephone or, if agreed to by the parties, other
23 electronic means.
24 (5)
25 (b) An appellant may be relieved of any necessary
26 filing fee by filing a verified petition of indigency for
27 approval as provided in s. 57.081(1) and may be relieved in
28 whole or in part from the costs for preparation of the record
29 on appeal if, within 15 days after the date notice of the
30 estimated costs for the preparation is served, the appellant
31 files with the judge of compensation claims a copy of the
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1 designation of the record on appeal, and a verified petition
2 to be relieved of costs. A verified petition filed prior to
3 the date of service of the notice of the estimated costs shall
4 be deemed not timely filed. The verified petition relating to
5 record costs shall contain a sworn statement that the
6 appellant is insolvent and a complete, detailed, and sworn
7 financial affidavit showing all the appellant's assets,
8 liabilities, and income. Failure to state in the affidavit all
9 assets and income, including marital assets and income, shall
10 be grounds for denying the petition with prejudice. The
11 division shall promulgate rules as may be required pursuant to
12 this subsection, including forms for use in all petitions
13 brought under this subsection. The appellant's attorney, or
14 the appellant if she or he is not represented by an attorney,
15 shall include as a part of the verified petition relating to
16 record costs an affidavit or affirmation that, in her or his
17 opinion, the notice of appeal was filed in good faith and that
18 there is a probable basis for the District Court of Appeal,
19 First District, to find reversible error, and shall state with
20 particularity the specific legal and factual grounds for the
21 opinion. Failure to so affirm shall be grounds for denying the
22 petition. A copy of the verified petition relating to record
23 costs shall be served upon all interested parties, including
24 the division and the Office of the General Counsel, Department
25 of Labor and Employment Security, in Tallahassee. The judge of
26 compensation claims shall promptly conduct a hearing on the
27 verified petition relating to record costs, giving at least 15
28 days' notice to the appellant, the division, and all other
29 interested parties, all of whom shall be parties to the
30 proceedings. The judge of compensation claims may enter an
31 order without such hearing if no objection is filed by an
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1 interested party within 20 days from the service date of the
2 verified petition relating to record costs. Such proceedings
3 shall be conducted in accordance with the provisions of this
4 section and with the workers' compensation rules of procedure,
5 to the extent applicable. In the event an insolvency petition
6 is granted, the judge of compensation claims shall direct the
7 division to pay record costs and filing fees from the Workers'
8 Compensation Trust Fund pending final disposition of the costs
9 of appeal. The division may transcribe or arrange for the
10 transcription of the record in any proceeding for which it is
11 ordered to pay the cost of the record. In the event the
12 insolvency petition is denied, the judge of compensation
13 claims may enter an order requiring the petitioner to
14 reimburse the division for costs incurred in opposing the
15 petition, including investigation and travel expenses.
16 Section 13. Section 440.271, Florida Statutes, is
17 amended to read:
18 440.271 Appeal of order of judge of compensation
19 claims.--Review of any order of a judge of compensation claims
20 entered pursuant to this chapter shall be by appeal to the
21 District Court of Appeal, First District. To promote
22 consistency and uniformity in the application of this chapter,
23 the District Court of Appeal, First District, shall establish
24 a specialized division to hear all appeals of orders of judges
25 of compensation claims. The court may structure the division
26 to hear workers' compensation cases exclusively or in addition
27 to other appeals. Appeals shall be filed in accordance with
28 rules of procedure prescribed by the Supreme Court for review
29 of such orders. The division shall be given notice of any
30 proceedings pertaining to s. 440.25, regarding indigency, or
31
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1 s. 440.49, regarding the Special Disability Trust Fund, and
2 shall have the right to intervene in any proceedings.
3 Section 14. Paragraph (b) of subsection (3) of section
4 440.34, Florida Statutes, is amended to read:
5 440.34 Attorney's fees; costs.--
6 (3) If the claimant should prevail in any proceedings
7 before a judge of compensation claims or court, there shall be
8 taxed against the employer the reasonable costs of such
9 proceedings, not to include the attorney's fees of the
10 claimant. A claimant shall be responsible for the payment of
11 her or his own attorney's fees, except that a claimant shall
12 be entitled to recover a reasonable attorney's fee from a
13 carrier or employer:
14 (b) In any case in which the employer or carrier files
15 a notice of denial or response to petition with the division
16 and the injured person has employed an attorney in the
17 successful prosecution of the claim; or
18
19 In applying the factors set forth in subsection (1) to cases
20 arising under paragraphs (a), (b), (c), and (d), the judge of
21 compensation claims must only consider only such benefits and
22 the time reasonably spent in obtaining them as were secured
23 for the claimant within the scope of paragraphs (a), (b), (c),
24 and (d).
25 Section 15. Paragraphs (b) and (c) of subsection (1)
26 of section 440.38, Florida Statutes, are amended to read:
27 440.38 Security for compensation; insurance carriers
28 and self-insurers.--
29 (1) Every employer shall secure the payment of
30 compensation under this chapter:
31
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1 (b) By furnishing satisfactory proof to the division
2 of its financial ability to pay such compensation individually
3 and on behalf of its subsidiary and affiliated companies with
4 employees in this state and receiving an authorization from
5 the division to pay such compensation directly in accordance
6 with the following provisions:
7 1. The division may, as a condition to such
8 authorization, require an such employer to deposit with in a
9 depository designated by the division a qualifying security
10 deposit. either an indemnity bond or securities, at the option
11 of the employer, of a kind and in an amount determined by the
12 division and subject to such conditions as The division shall
13 determine the type and amount of the qualifying security
14 deposit and shall may prescribe conditions for the qualifying
15 security deposit, which shall include authorization for to the
16 division to call the qualifying security deposit in the case
17 of default to sell any such securities sufficient to pay
18 compensation awards or to bring suit upon such bonds, to
19 procure prompt payment of compensation under this chapter. In
20 addition, the division shall require, as a condition to
21 authorization to self-insure, proof that the employer has
22 provided for competent personnel with whom to deliver benefits
23 and to provide a safe working environment. Further, the
24 division shall require such employer to carry reinsurance at
25 levels that will ensure the actuarial soundness of such
26 employer in accordance with rules promulgated by the division.
27 The division may by rule require that, in the event of an
28 individual self-insurer's insolvency, such qualifying security
29 deposits indemnity bonds, securities, and reinsurance policies
30 shall be payable to the Florida Self-Insurers Guaranty
31 Association, Incorporated, created pursuant to s. 440.385.
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1 Any employer securing compensation in accordance with the
2 provisions of this paragraph shall be known as a self-insurer
3 and shall be classed as a carrier of her or his own insurance.
4 2. If the employer fails to maintain the foregoing
5 requirements, the division shall revoke the employer's
6 authority to self-insure, unless the employer provides to the
7 division the certified opinion of an independent actuary who
8 is a member of the American Society of Actuaries as to the
9 actuarial present value of the employer's determined and
10 estimated future compensation payments based on cash reserves,
11 using a 4-percent discount rate, and a qualifying security
12 deposit equal to 1.5 times the value so certified. The
13 employer shall thereafter annually provide such a certified
14 opinion until such time as the employer meets the requirements
15 of subparagraph 1. The qualifying security deposit shall be
16 adjusted at the time of each such annual report. Upon the
17 failure of the employer to timely provide such opinion or to
18 timely provide a security deposit in an amount equal to 1.5
19 times the value certified in the latest opinion, the division
20 shall then revoke such employer's authorization to
21 self-insure, and such failure shall be deemed to constitute an
22 immediate serious danger to the public health, safety, or
23 welfare sufficient to justify the summary suspension of the
24 employer's authorization to self-insure pursuant to s. 120.68.
25 3. Upon the suspension or revocation of the employer's
26 authorization to self-insure, the employer shall provide to
27 the division and to the Florida Self-Insurers Guaranty
28 Association, Incorporated, created pursuant to s. 440.385 the
29 certified opinion of an independent actuary who is a member of
30 the American Society of Actuaries of the actuarial present
31 value of the determined and estimated future compensation
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1 payments of the employer for claims incurred while the member
2 exercised the privilege of self-insurance, using a discount
3 rate of 4 percent. The employer shall provide such an opinion
4 at 6-month intervals thereafter until such time as the latest
5 opinion shows no remaining value of claims. With each such
6 opinion, the employer shall deposit with the division a
7 qualifying security deposit in an amount equal to the value
8 certified by the actuary. The association has a cause of
9 action against an employer, and against any successor of the
10 employer, who fails to timely provide such opinion or who
11 fails to timely maintain the required security deposit with
12 the division. The association shall recover a judgment in the
13 amount of the actuarial present value of the determined and
14 estimated future compensation payments of the employer for
15 claims incurred while the employer exercised the privilege of
16 self-insurance, together with attorney's fees. For purposes
17 of this section, the successor of an employer means any
18 person, business entity, or group of persons or business
19 entities, which holds or acquires legal or beneficial title to
20 the majority of the assets or the majority of the shares of
21 the employer.
22 4. A qualifying security deposit shall consist, at the
23 option of the employer, of:
24 a. Surety bonds, in a form and containing such terms
25 as prescribed by the division, issued by a corporation surety
26 authorized to transact surety business by the Department of
27 Insurance, and whose policyholders' and financial ratings, as
28 reported in A.M. Best's Insurance Reports, Property-Liability,
29 are not less than "A" and "V", respectively.
30 b. Certificates of deposit with financial
31 institutions, the deposits of which are insured through the
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1 Federal Deposit Insurance Corporation or the Federal Savings
2 and Loan Insurance Corporation.
3 b.c. Irrevocable letters of credit in favor of the
4 division issued by financial institutions located within this
5 state, the deposits of which are insured through the Federal
6 Deposit Insurance Corporation described in sub-subparagraph b.
7 d. Direct obligations of the United States Treasury
8 backed by the full faith and credit of the United States.
9 e. Securities issued by this state and backed by the
10 full faith and credit of this state.
11 5. The qualifying security deposit shall be held by
12 the division, or by a depository authorized by the division,
13 exclusively for the benefit of workers' compensation
14 claimants. The security shall not be subject to assignment,
15 execution, attachment, or any legal process whatsoever, except
16 as necessary to guarantee the payment of compensation under
17 this chapter. No surety bond may be terminated, and no letter
18 of credit other qualifying security may be allowed to expire
19 lapse, without 90 days' prior notice to the division and
20 deposit by the self-insuring employer of some other qualifying
21 security deposit of equal value within 10 business days after
22 such notice. Failure to provide such notice or failure to
23 timely provide qualifying replacement security after such
24 notice shall constitute grounds for the division to call or
25 sue upon the surety bond, or to act with respect to other
26 pledged security in any manner necessary to preserve its value
27 for the purposes intended by this section, including the
28 exercise its of rights under a letter of credit. Current
29 self-insured employers shall comply with this section on or
30 before December 31, 2001, or upon maturity of existing
31 security deposits, whichever occurs later, the sale of any
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1 security at then prevailing market rates, or the withdrawal of
2 any funds represented by any certificate of deposit forming
3 part of the qualifying security deposit. The division may
4 specify by rule the amount of the qualifying security deposit
5 required prior to authorizing an employer to self-insure and
6 the amount of net worth required for an employer to qualify
7 for authorization to self-insure;
8 (c) By entering into a contract with a public utility
9 under an approved utility-provided self-insurance program as
10 set forth in s. 624.46225 440.571 in effect as of July 1,
11 1983. The division shall adopt rules to implement this
12 paragraph;
13 Section 16. Paragraph (c) of subsection (2) of section
14 440.45, Florida Statutes, is amended, paragraph (d) is added
15 to said subsection, and subsection (5) of said section is
16 amended, to read:
17 440.45 Office of the Judges of Compensation Claims.--
18 (2)
19 (c) Each judge of compensation claims shall be
20 appointed for a term of 4 years, but during the term of office
21 may be removed by the Governor for cause. Prior to the
22 expiration of a judge's term of office, the statewide
23 nominating commission shall review the judge's conduct and
24 determine whether the judge's performance is satisfactory.
25 Effective January 1, 2002, in determining whether a judge's
26 performance is satisfactory, the commission shall consider the
27 extent to which the judge has met the requirements of this
28 chapter, including, but not limited to, the requirements of
29 ss. 440.192(2), 440.25(1) and (4)(a)-(f), 440.34(2), and
30 440.442. If the commission finds that judges generally are
31 unable to meet a particular statutory requirement for reasons
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1 beyond their control, the commission shall request the
2 Legislature to review that particular requirement. If the
3 judge's performance is deemed satisfactory, the commission
4 shall report its finding to the Governor no later than 6
5 months prior to the expiration of the judge's term of office.
6 The Governor shall review the commission's report and may
7 reappoint the judge for an additional 4-year term. If the
8 Governor does not reappoint the judge, the Governor shall
9 inform the commission. The judge shall remain in office until
10 the Governor has appointed a successor judge in accordance
11 with paragraphs (a) and (b). If a vacancy occurs during a
12 judge's unexpired term, the statewide nominating commission
13 does not find the judge's performance is satisfactory, or the
14 Governor does not reappoint the judge, the Governor shall
15 appoint a successor judge for a term of 4 years in accordance
16 with paragraph (b).
17 (d) The Governor may appoint any attorney with 5 years
18 of experience in the practice of law in this state to serve as
19 a judge of compensation claims pro hac vice in the absence or
20 disqualification of any full-time judge of compensation claims
21 or to serve temporarily as an additional judge of compensation
22 claims in any area of the state in which the Governor
23 determines that a need exists for such additional judge.
24 However, no attorney so appointed by the Governor shall serve
25 for a period to exceed 120 successive days.
26 (5) The Office of the Judges of Compensation Claims
27 shall promulgate rules to effect the purposes of this section
28 by November 1, 2001. Such rules shall not be subject to rule
29 challenges under s. 120.56(2) or to drawout proceedings under
30 s. 120.54(3)(c)2. Such rules shall include procedural rules
31 applicable to workers' compensation claim resolution and
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1 uniform criteria for measuring the performance of the office,
2 including, but not limited to, the number of cases assigned
3 and disposed, the age of pending and disposed cases,
4 timeliness of decisionmaking, extraordinary fee awards, and
5 the data necessary for the judicial nominating commission to
6 review the performance of judges as required in paragraph
7 (2)(c) and other performance indicators. The Office of the
8 Judges of Compensation Claims shall conform the rules to
9 legislation enacted by the Legislature. The workers'
10 compensation rules of procedure approved by the Supreme Court
11 shall apply until the rules promulgated by the Office of the
12 Judges of Compensation Claims pursuant to this section become
13 effective.
14 Section 17. Section 440.593, Florida Statutes, is
15 amended to read:
16 440.593 Electronic reporting.--
17 (1) The division may establish by rule an electronic
18 reporting system requiring or authorizing whereby an employer
19 or carrier is required to submit required forms, reports, or
20 other information electronically rather than by other means
21 filing otherwise required forms or reports. The division may
22 by rule establish different deadlines for submitting forms,
23 reports, or reporting information to the division, or its
24 authorized agent, via the electronic reporting system than are
25 otherwise required when reporting information by other means.
26 (2) The division may require any carrier to submit
27 data electronically, either directly or through a third-party
28 vendor, and may require any carrier or vendor submitting data
29 to the division electronically to be certified by the
30 division. The division may specify performance requirements
31 for any carrier or vendor submitting data electronically.
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1 (3) The division may revoke the certification of any
2 carrier or vendor determined by the division to be in
3 noncompliance with performance standards prescribed by rule
4 for electronic submissions.
5 (4) The division may assess a civil penalty, not to
6 exceed $500 for each violation, as prescribed by rule.
7 (5) The division is authorized to adopt rules to
8 implement this section.
9 Section 18. Section 489.114, Florida Statutes, is
10 amended to read:
11 489.114 Evidence of workers' compensation
12 coverage.--Except as provided in s. 489.115(5)(d), any person,
13 business organization, or qualifying agent engaged in the
14 business of contracting in this state and certified or
15 registered under this part shall, as a condition precedent to
16 the issuance or renewal of a certificate, registration, or
17 certificate of authority of the contractor, provide to the
18 Construction Industry Licensing Board, as provided by board
19 rule, evidence of workers' compensation coverage pursuant to
20 chapter 440. In the event that the Division of Workers'
21 Compensation of the Department of Labor and Employment
22 Security receives notice of the cancellation of a policy of
23 workers' compensation insurance insuring a person or entity
24 governed by this section, the Division of Workers'
25 Compensation shall certify and identify all persons or
26 entities by certification or registration license number to
27 the department after verification is made by the Division of
28 Workers' Compensation that such cancellation has occurred or
29 that persons or entities governed by this section are no
30 longer covered by workers' compensation insurance. Such
31 certification and verification by the Division of Workers'
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1 Compensation shall result solely from records furnished to the
2 Division of Workers' Compensation by the persons or entities
3 governed by this section. The department shall notify the
4 persons or entities governed by this section who have been
5 determined to be in noncompliance with chapter 440, and the
6 persons or entities notified shall provide certification of
7 compliance with chapter 440 to the department and pay an
8 administrative fine as provided by rule. The failure to
9 maintain workers' compensation coverage as required by law
10 shall be grounds for the board to revoke, suspend, or deny the
11 issuance or renewal of a certificate, registration, or
12 certificate of authority of the contractor under the
13 provisions of s. 489.129.
14 Section 19. Paragraph (d) is added to subsection (5)
15 of section 489.115, Florida Statutes, to read:
16 489.115 Certification and registration; endorsement;
17 reciprocity; renewals; continuing education.--
18 (5)
19 (d) If qualifying for an exemption from workers'
20 compensation coverage requirements under s. 440.05, an
21 applicant for initial issuance of a certificate or
22 registration shall submit as a prerequisite an affidavit
23 attesting to the fact that the applicant will obtain an
24 exemption within 30 days after the date the initial
25 certificate or registration is issued by the board.
26 Section 20. Section 489.510, Florida Statutes, is
27 amended to read:
28 489.510 Evidence of workers' compensation
29 coverage.--Except as provided in s. 489.515(3)(b), any person,
30 business organization, or qualifying agent engaged in the
31 business of contracting in this state and certified or
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1 registered under this part shall, as a condition precedent to
2 the issuance or renewal of a certificate or registration of
3 the contractor, provide to the Electrical Contractors'
4 Licensing Board, as provided by board rule, evidence of
5 workers' compensation coverage pursuant to chapter 440. In
6 the event that the Division of Workers' Compensation of the
7 Department of Labor and Employment Security receives notice of
8 the cancellation of a policy of workers' compensation
9 insurance insuring a person or entity governed by this
10 section, the Division of Workers' Compensation shall certify
11 and identify all persons or entities by certification or
12 registration license number to the department after
13 verification is made by the Division of Workers' Compensation
14 that such cancellation has occurred or that persons or
15 entities governed by this section are no longer covered by
16 workers' compensation insurance. Such certification and
17 verification by the Division of Workers' Compensation shall
18 result solely from records furnished to the Division of
19 Workers' Compensation by the persons or entities governed by
20 this section. The department shall notify the persons or
21 entities governed by this section who have been determined to
22 be in noncompliance with chapter 440, and the persons or
23 entities notified shall provide certification of compliance
24 with chapter 440 to the department and pay an administrative
25 fine as provided by rule. The failure to maintain workers'
26 compensation coverage as required by law shall be grounds for
27 the board to revoke, suspend, or deny the issuance or renewal
28 of a certificate or registration of the contractor under the
29 provisions of s. 489.533.
30 Section 21. Subsection (3) of section 489.515, Florida
31 Statutes, is amended to read:
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1 489.515 Issuance of certificates; registrations.--
2 (3)(a) As a prerequisite to the initial issuance or
3 the renewal of a certificate or registration, the applicant
4 shall submit an affidavit on a form provided by the board
5 attesting to the fact that the applicant has obtained both
6 workers' compensation insurance or an acceptable exemption
7 certificate issued by the department and public liability and
8 property damage insurance for the health, safety, and welfare
9 of the public in amounts determined by rule of the board. The
10 board shall by rule establish a procedure to verify the
11 accuracy of such affidavits based upon a random audit method.
12 (b) If qualifying for an exemption from workers'
13 compensation coverage requirements under s. 440.05, an
14 applicant for initial issuance of a certificate or
15 registration shall submit as a prerequisite an affidavit
16 attesting to the fact that the applicant will obtain an
17 exemption within 30 days after the date the initial
18 certificate or registration is issued by the board.
19 Section 22. Paragraph (p) of subsection (4) of section
20 627.311, Florida Statutes, is amended to read:
21 627.311 Joint underwriters and joint reinsurers.--
22 (4)
23 (p) Neither the plan nor any member of the board of
24 governors is liable for monetary damages to any person for any
25 statement, vote, decision, or failure to act, regarding the
26 management or policies of the plan, unless:
27 1. The member breached or failed to perform her or his
28 duties as a member; and
29 2. The member's breach of, or failure to perform,
30 duties constitutes:
31
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1 a. A violation of the criminal law, unless the member
2 had reasonable cause to believe her or his conduct was not
3 unlawful. A judgment or other final adjudication against a
4 member in any criminal proceeding for violation of the
5 criminal law estops that member from contesting the fact that
6 her or his breach, or failure to perform, constitutes a
7 violation of the criminal law; but does not estop the member
8 from establishing that she or he had reasonable cause to
9 believe that her or his conduct was lawful or had no
10 reasonable cause to believe that her or his conduct was
11 unlawful;
12 b. A transaction from which the member derived an
13 improper personal benefit, either directly or indirectly; or
14 c. Recklessness or any act or omission that was
15 committed in bad faith or with malicious purpose or in a
16 manner exhibiting wanton and willful disregard of human
17 rights, safety, or property. For purposes of this
18 sub-subparagraph, the term "recklessness" means the acting, or
19 omission to act, in conscious disregard of a risk:
20 (I) Known, or so obvious that it should have been
21 known, to the member; and
22 (II) Known to the member, or so obvious that it should
23 have been known, to be so great as to make it highly probable
24 that harm would follow from such act or omission.
25 Section 23. Effective July 1, 2001, section 627.914,
26 Florida Statutes, is amended to read:
27 627.914 Reports of information by workers'
28 compensation insurers required.--
29 (1) The department shall promulgate rules and
30 statistical plans which shall thereafter be used by each
31 insurer and self-insurance fund as defined in s. 624.461 in
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1 the recording and reporting of loss, expense, and claims
2 experience, in order that the experience of all insurers and
3 self-insurance funds self-insurers may be made available at
4 least annually in such form and detail as may be necessary to
5 aid the department in determining whether Florida experience
6 for workers' compensation insurance is sufficient for
7 establishing rates.
8 (2) Any insurer authorized to write a policy of
9 workers' compensation insurance shall transmit the following
10 information to the department each year with its annual
11 report, and such information shall be reported on a net basis
12 with respect to reinsurance for nationwide experience and on a
13 direct basis for Florida experience:
14 (a) Premiums written;
15 (b) Premiums earned;
16 (c) Dividends paid or credited to policyholders;
17 (d) Losses paid;
18 (e) Allocated loss adjustment expenses;
19 (f) The ratio of allocated loss adjustment expenses to
20 losses paid;
21 (g) Unallocated loss adjustment expenses;
22 (h) The ratio of unallocated loss adjustment expenses
23 to losses paid;
24 (i) The total of losses paid and unallocated and
25 allocated loss adjustment expenses;
26 (j) The ratio of losses paid and unallocated and
27 allocated loss adjustment expenses to premiums earned;
28 (k) The number of claims outstanding as of December 31
29 of each year;
30 (l) The total amount of losses unpaid as of December
31 31 of each year;
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1 (m) The total amount of allocated and unallocated loss
2 adjustment expenses unpaid as of December 31 of each year; and
3 (n) The total of losses paid and allocated loss
4 adjustment expenses and unallocated loss adjustment expenses,
5 plus the total of losses unpaid as of December 31 of each year
6 and loss adjustment expenses unpaid as of December 31 of each
7 year.
8 (3) A report of the information required in subsection
9 (2) shall be filed no later than April 1 of each year and
10 shall include the information for the preceding year ending
11 December 31. All reports shall be on a calendar-accident year
12 basis, and each calendar-accident year shall be reported at
13 eight stages of development.
14 (2)(4) Each insurer and self-insurance fund authorized
15 to write a policy of workers' compensation insurance shall
16 transmit the following information for paragraphs (a), (b),
17 (d), and (e) annually on both Florida experience and
18 nationwide experience separately:
19 (a) Payrolls by classification.
20 (b) Manual premiums by classification.
21 (c) Standard premiums by classification.
22 (d) Losses by classification and injury type.
23 (e) Expenses.
24
25 A report of this information shall be filed no later than July
26 April 1 of each year. All reports shall be filed in
27 accordance with standard reporting procedures for insurers,
28 which procedures have received approval by the department, and
29 shall contain data for the most recent policy period
30 available. A statistical or rating organization may be used
31 by insurers and self-insurnace funds to report the data
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1 required by this section. The statistical or rating
2 organization shall report each data element in the aggregate
3 only for insurers and self-insurance funds required to report
4 under this section who elect to have the rating organization
5 report on their behalf. Such insurers and self-insurance funds
6 shall be named in the report.
7 (3)(5) Individual self-insurers as defined authorized
8 to transact workers' compensation insurance as provided in s.
9 440.02 shall report only Florida data as prescribed in
10 paragraphs (a)-(e) of subsection (2) (4) to the Division of
11 Workers' Compensation of the Department of Labor and
12 Employment Security.
13 (a) The Division of Workers' Compensation shall
14 publish the dates and forms necessary to enable individual
15 self-insurers to comply with this section.
16 (b) The Division of Workers' Compensation shall report
17 the information collected under this section to the Department
18 of Insurance in a manner prescribed by the department.
19 (b)(c) A statistical or rating organization may be
20 used by individual self-insurers for the purposes of reporting
21 the data required by this section and calculating experience
22 ratings.
23 (4)(6) The department shall provide a summary of
24 information provided pursuant to subsection subsections (2)
25 and (4) in its annual report.
26 Section 24. Effective January 1, 2002, paragraph (e)
27 of subsection (2) of section 440.49, Florida Statutes, is
28 amended to read:
29 440.49 Limitation of liability for subsequent injury
30 through Special Disability Trust Fund.--
31 (2) DEFINITIONS.--As used in this section, the term:
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1 (e) "Administrator" means the entity selected by the
2 commission to review, allow, deny, compromise, controvert, and
3 litigate claims of the Special Disability Trust Fund.
4
5 In addition to the definitions contained in this subsection,
6 the division may by rule prescribe definitions that are
7 necessary for the effective administration of this section.
8 Section 25. Subsection (3) of section 440.45, Florida
9 Statutes, and subsection (2) of section 440.59, Florida
10 Statutes, are repealed.
11 Section 26. Effective January 1, 2002, paragraphs (f)
12 and (g) of subsection (2) and subsections (13) and (14) of
13 section 440.49, Florida Statutes, are repealed.
14 Section 27. Except as otherwise provided herein, this
15 act shall take effect October 1, 2001.
16
17 *****************************************
18 HOUSE SUMMARY
19
Revises workers' compensation provisions. See bill for
20 details.
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