HOUSE AMENDMENT
                                     Bill No. CS/HB 1927, 2nd Eng.
    Amendment No. 1 (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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 5                                           ORIGINAL STAMP BELOW
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11  Representative(s) Ross, Waters, and Alexander offered the
12  following amendment to Senate Amendment (984530):
13  
14         Amendment (with title amendment) 
15         On page 1 ,
16  remove from the amendment:  The entire amendment
17  
18  and insert in lieu thereof:  
19         Section 1.  Paragraph (b) of subsection (14) and
20  subsection (37) of section 440.02, Florida Statutes, are
21  amended to read:
22         440.02  Definitions.--When used in this chapter, unless
23  the context clearly requires otherwise, the following terms
24  shall have the following meanings:
25         (14)
26         (b)  "Employee" includes any person who is an officer
27  of a corporation and who performs services for remuneration
28  for such corporation within this state, whether or not such
29  services are continuous.
30         1.  Any officer of a corporation may elect to be exempt
31  from this chapter by filing written notice of the election
                                  1
    File original & 9 copies    05/04/01                          
    hin0002                     06:12 pm         01927-0063-024565

HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 with the division as provided in s. 440.05. 2 2. Effective January 1, 2002, as to officers of a 3 corporation who are actively engaged in the construction 4 industry, no more than two three officers of such corporation 5 or of any group of affiliated corporations may elect to be 6 exempt from this chapter by filing written notice of the 7 election with the division as provided in s. 440.05, however; 8 a. Such election is valid only with respect to an 9 officer who is the president, vice president, secretary, or 10 treasurer of the corporation. 11 b. Such election is valid only with respect to an 12 officer who owns not less than 10 percent of the stock of the 13 corporation. 14 3. An officer of a corporation who elects to be exempt 15 from this chapter by filing a written notice of the election 16 with the division as provided in s. 440.05 is not an employee. 17 18 Services are presumed to have been rendered to the corporation 19 if the officer is compensated by other than dividends upon 20 shares of stock of the corporation which the officer owns. 21 The term "affiliated" means and includes one or more 22 corporations or entities, any one of which is a corporation 23 actively engaged in the construction industry, under the same 24 or substantially the same control or ownership. The term 25 "affiliated" includes the officers, directors, executives, and 26 shareholders active in management; employees; and agents of 27 the affiliated corporation. The ownership by one business 28 entity of a controlling interest in another business entity or 29 a pooling of equipment or income among business entities shall 30 be prima facie evidence that one business entity is affiliated 31 with another. 2 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 (37) "Catastrophic injury" means a permanent 2 impairment constituted by: 3 (a) Spinal cord injury involving severe paralysis of 4 an arm, a leg, or the trunk; 5 (b) Amputation of an arm, a hand, a foot, or a leg 6 involving the effective loss of use of that appendage; 7 (c) Severe brain or closed-head injury as evidenced 8 by: 9 1. Severe sensory or motor disturbances; 10 2. Severe communication disturbances; 11 3. Severe complex integrated disturbances of cerebral 12 function; 13 4. Severe episodic neurological disorders; or 14 5. Other severe brain and closed-head injury 15 conditions at least as severe in nature as any condition 16 provided in subparagraphs 1.-4.; 17 (d) Second-degree or third-degree burns of 25 percent 18 or more of the total body surface or third-degree burns of 5 19 percent or more to the face and hands; or 20 (e) Total or industrial blindness.; or 21 (f) Any other injury that would otherwise qualify 22 under this chapter of a nature and severity that would qualify 23 an employee to receive disability income benefits under Title 24 II or supplemental security income benefits under Title XVI of 25 the federal Social Security Act as the Social Security Act 26 existed on July 1, 1992, without regard to any time 27 limitations provided under that act. 28 Section 2. Subsections (10), (11), (12), and (13) are 29 added to section 440.05, Florida Statutes, to read: 30 440.05 Election of exemption; revocation of election; 31 notice; certification.-- 3 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 (10) Any person exempted from this chapter under this 2 section who secures, or whose employer secures for him or her, 3 workers' compensation insurance coverage is considered to have 4 waived the right to such an exemption and is subject to the 5 provisions of this chapter. 6 (11) Every enterprise conducting business in this 7 state shall maintain business records as specified by the 8 division by rule, which rules must include the provision that 9 any corporation with exempt officers and any partnership with 10 exempt partners must maintain written statements of those 11 exempted persons affirmatively acknowledging each such 12 individual's exempt status. 13 (12) Any sole proprietor or partner claiming an 14 exemption under this section shall maintain a copy of his or 15 her federal income tax records for each of the immediately 16 previous 3 years in which he or she claims an exemption. Such 17 federal income tax records must include a complete copy of the 18 following for each year in which an exemption is claimed: 19 (a) For sole proprietors, a copy of Federal Income Tax 20 Form 1040 and its accompanying Schedule C; 21 (b) For partners, a copy of the partner's Federal 22 Income Tax Schedule K-1 (Form 1065) and Federal Income Tax 23 Form 1040 and its accompanying Schedule E. 24 25 The sole proprietor or partner in question shall produce, upon 26 request by the division, a copy of those documents together 27 with a statement by the sole proprietor that the tax records 28 provided are true and accurate copies of what the sole 29 proprietor or partner has filed with the federal Internal 30 Revenue Service. The statement must be signed under oath by 31 the sole proprietor or partner in question and must be 4 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 notarized. The division shall issue a stop-work order under s. 2 440.107(5) to any sole proprietor or partner who fails or 3 refuses to produce a copy of the tax records and affidavit 4 required under this paragraph to the division within 3 5 business days after the request is made. 6 (13) Any corporate officer claiming an exemption under 7 this section must be listed on the records of this state's 8 Secretary of State, Division of Corporations, as a corporate 9 officer. If the person who claims an exemption as a corporate 10 officer is not so listed on the records of the Secretary of 11 State, the individual must provide to the division, upon 12 request by the division, a notarized affidavit stating that 13 the individual is a bona fide officer of the corporation and 14 stating the date his or her appointment or election as a 15 corporate officer became or will become effective. The 16 statement must be signed under oath by both the officer in 17 question and the president or chief operating officer of the 18 corporation and must be notarized. The division shall issue a 19 stop-work order under s. 440.107(1) to any person who claims 20 to be exempt as a corporate officer but who fails or refuses 21 to produce the documents required under this subsection to the 22 division within 3 business days after the request is made. 23 Section 3. Subsection (1) of section 440.09, Florida 24 Statutes, is amended, and subsection (9) is added to that 25 section, to read: 26 440.09 Coverage.-- 27 (1) The employer shall pay compensation or furnish 28 benefits required by this chapter if the employee suffers an 29 accidental compensable injury or death arising out of work 30 performed in the course and the scope of employment. The 31 injury, its occupational cause, and any resulting 5 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 manifestations or disability shall be established to a 2 reasonable degree of medical certainty and by objective 3 medical findings. Mental or nervous injuries occurring as a 4 manifestation of an injury compensable under this section 5 shall be demonstrated by clear and convincing evidence. In 6 cases involving occupational disease or repetitive exposure, 7 both causation and sufficient exposure to support causation 8 shall be proven by the preponderance of evidence. 9 (a) This chapter does not require any compensation or 10 benefits for any subsequent injury the employee suffers as a 11 result of an original injury arising out of and in the course 12 of employment unless the original injury is the major 13 contributing cause of the subsequent injury. 14 (b) If an injury arising out of and in the course of 15 employment combines with a preexisting disease or condition to 16 cause or prolong disability or need for treatment, the 17 employer must pay compensation or benefits required by this 18 chapter only to the extent that the injury arising out of and 19 in the course of employment is and remains the major 20 contributing cause of the disability or need for treatment. 21 (c) Death resulting from an operation by a surgeon 22 furnished by the employer for the cure of hernia as required 23 in s. 440.15(6) shall for the purpose of this chapter be 24 considered to be a death resulting from the accident causing 25 the hernia. 26 (d) If an accident happens while the employee is 27 employed elsewhere than in this state, which would entitle the 28 employee or his or her dependents to compensation if it had 29 happened in this state, the employee or his or her dependents 30 are entitled to compensation if the contract of employment was 31 made in this state, or the employment was principally 6 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 localized in this state. However, if an employee receives 2 compensation or damages under the laws of any other state, the 3 total compensation for the injury may not be greater than is 4 provided in this chapter. 5 (9) Notwithstanding any other provision of this 6 chapter, effective January 1, 2004, any partnership, 7 corporation, or sole proprietor, regardless of the number of 8 employees, actively engaged in the construction industry shall 9 secure and maintain workers' compensation insurance coverage 10 at all times. 11 Section 4. Section 440.1025, Florida Statutes, is 12 created to read: 13 440.1025 Consideration of public employer workplace 14 safety program in rate-setting; program requirements; 15 rulemaking.--For a public employer to be eligible for receipt 16 of specific identifiable consideration under s. 627.0915 for a 17 workplace safety program in the setting of rates, the public 18 employer must have a workplace safety program. At a minimum, 19 the program must include a written safety policy and safety 20 rules, and make provision for safety inspections, preventative 21 maintenance, safety training, first-aid, accident 22 investigation, and necessary record keeping. For purposes of 23 this section, "public employer" means "any agency within 24 state, county, or municipal government employing individuals 25 for salary, wages, or other remuneration." The Division may 26 promulgate rules for insurers to utilize in determining public 27 employer compliance with the requirements of this section. 28 Section 5. Subsection (5) of section 440.107, Florida 29 Statutes, is amended to read: 30 440.107 Division powers to enforce employer compliance 31 with coverage requirements.-- 7 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 (5) Whenever the division determines that an employer 2 who is required to secure the payment to his or her employees 3 of the compensation provided for by this chapter has failed to 4 do so or the division determines that an employer has 5 misrepresented to a carrier the size or classification of the 6 employer's payroll, such failure or misrepresentation shall be 7 deemed an immediate serious danger to public health, safety, 8 or welfare sufficient to justify service by the division of a 9 stop-work order on the employer, requiring the cessation of 10 all business operations within the state at the place of 11 employment or job site. The order shall take effect upon the 12 date of service upon the employer, unless the employer 13 provides evidence satisfactory to the division of having 14 secured any necessary insurance or self-insurance and pays a 15 civil penalty to the division, to be deposited by the division 16 into the Workers' Compensation Administration Trust Fund, in 17 the amount of $100 per day for each day the employer was not 18 in compliance with this chapter. 19 Section 6. Subsection (1) of section 440.11, Florida 20 Statutes, is amended to read: 21 440.11 Exclusiveness of liability.-- 22 (1) The liability of an employer prescribed in s. 23 440.10 shall be exclusive and in place of all other liability 24 of such employer to any third-party tortfeasor and to the 25 employee, the legal representative thereof, husband or wife, 26 parents, dependents, next of kin, and anyone otherwise 27 entitled to recover damages from such employer at law or in 28 admiralty on account of such injury or death, except that if 29 an employer fails to secure payment of compensation as 30 required by this chapter, an injured employee, or the legal 31 representative thereof in case death results from the injury, 8 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 may elect to claim compensation under this chapter or to 2 maintain an action at law or in admiralty for damages on 3 account of such injury or death. In such action the defendant 4 may not plead as a defense that the injury was caused by 5 negligence of a fellow employee, that the employee assumed the 6 risk of the employment, or that the injury was due to the 7 comparative negligence of the employee. The same immunities 8 from liability enjoyed by an employer shall extend as well to 9 each employee of the employer when such employee is acting in 10 furtherance of the employer's business and the injured 11 employee is entitled to receive benefits under this chapter. 12 Such fellow-employee immunities shall not be applicable to an 13 employee who acts, with respect to a fellow employee, with 14 willful and wanton disregard or unprovoked physical aggression 15 or with gross negligence when such acts result in injury or 16 death or such acts proximately cause such injury or death, nor 17 shall such immunities be applicable to employees of the same 18 employer when each is operating in the furtherance of the 19 employer's business but they are assigned primarily to 20 unrelated works within private or public employment. The same 21 immunity provisions enjoyed by an employer shall also apply to 22 any sole proprietor, partner, corporate officer or director, 23 supervisor, or other person who in the course and scope of his 24 or her duties acts in a managerial or policymaking capacity 25 and the conduct which caused the alleged injury arose within 26 the course and scope of said managerial or policymaking duties 27 and was not a violation of a law, whether or not a violation 28 was charged, for which the maximum penalty which may be 29 imposed does not exceed 60 days' imprisonment as set forth in 30 s. 775.082. The immunity from liability provided in this 31 subsection extends to county governments with respect to 9 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 employees of county constitutional officers whose offices are 2 funded by the board of county commissioners. If an employee 3 recovers damages from an employer either by judgment or 4 settlement under this subsection, the workers' compensation 5 carrier for the employer or the employer, if self-insured, 6 shall have an offset against any workers' compensation 7 benefits to which the employee would be entitled under this 8 chapter. 9 Section 7. Subsections (2), (5), (12), and (14) of 10 section 440.13, Florida Statutes, are amended to read: 11 440.13 Medical services and supplies; penalty for 12 violations; limitations.-- 13 (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.-- 14 (a) Subject to the limitations specified elsewhere in 15 this chapter, the employer shall furnish to the employee such 16 medically necessary remedial treatment, care, and attendance 17 for such period as the nature of the injury or the process of 18 recovery may require, including medicines, medical supplies, 19 durable medical equipment, orthoses, prostheses, and other 20 medically necessary apparatus. Remedial treatment, care, and 21 attendance, including work-hardening programs or 22 pain-management programs accredited by the Commission on 23 Accreditation of Rehabilitation Facilities or Joint Commission 24 on the Accreditation of Health Organizations or 25 pain-management programs affiliated with medical schools, 26 shall be considered as covered treatment only when such care 27 is given based on a referral by a physician as defined in this 28 chapter. Each facility shall maintain outcome data, including 29 work status at discharges, total program charges, total number 30 of visits, and length of stay. The department shall utilize 31 such data and report to the President of the Senate and the 10 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 Speaker of the House of Representatives regarding the efficacy 2 and cost-effectiveness of such program, no later than October 3 1, 1994. Medically necessary treatment, care, and attendance 4 does not include chiropractic services in excess of 18 5 treatments or rendered 8 weeks beyond the date of the initial 6 chiropractic treatment, whichever comes first, unless the 7 carrier authorizes additional treatment or the employee is 8 catastrophically injured. 9 (b) The employer shall provide appropriate 10 professional or nonprofessional attendant care performed only 11 at the direction and control of a physician when such care is 12 medically necessary. The value of nonprofessional attendant 13 care provided by a family member must be determined as 14 follows: 15 1. If the family member is not employed, the per-hour 16 value equals the federal minimum hourly wage. 17 2. If the family member is employed and elects to 18 leave that employment to provide attendant or custodial care, 19 the per-hour value of that care equals the per-hour value of 20 the family member's former employment, not to exceed the 21 per-hour value of such care available in the community at 22 large. 23 3. If the family member remains employed while 24 providing attendant or custodial care, the per-hour value of 25 that care equals the per-hour value of the family member's 26 employment, not to exceed the per-hour value of such care 27 available in the community at large. 28 4. A family member or a combination of family members 29 providing nonprofessional attendant care under this paragraph 30 may not be compensated for more than a total of 12 hours per 31 day. 11 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 (c) If the employer fails to provide treatment or care 2 required by this section after request by the injured 3 employee, the employee may obtain such treatment at the 4 expense of the employer, if the treatment is compensable and 5 medically necessary. There must be a specific request for the 6 treatment, and the employer or carrier must be given a 7 reasonable time period within which to provide the treatment 8 or care. However, the employee is not entitled to recover any 9 amount personally expended for the treatment or service unless 10 he or she has requested the employer to furnish that treatment 11 or service and the employer has failed, refused, or neglected 12 to do so within a reasonable time or unless the nature of the 13 injury requires such treatment, nursing, and services and the 14 employer or his or her superintendent or foreman, having 15 knowledge of the injury, has neglected to provide the 16 treatment or service. 17 (d) The carrier has the right to transfer the care of 18 an injured employee from the attending health care provider if 19 an independent medical examination determines that the 20 employee is not making appropriate progress in recuperation. 21 (e) Except in emergency situations and for treatment 22 rendered by a managed care arrangement, after any initial 23 examination and diagnosis by a physician providing remedial 24 treatment, care, and attendance, and before a proposed course 25 of medical treatment begins, each insurer shall review, in 26 accordance with the requirements of this chapter, the proposed 27 course of treatment, to determine whether such treatment would 28 be recognized as reasonably prudent. The review must be in 29 accordance with all applicable workers' compensation practice 30 parameters. The insurer must accept any such proposed course 31 of treatment unless the insurer notifies the physician of its 12 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 specific objections to the proposed course of treatment by the 2 close of the tenth business day after notification by the 3 physician, or a supervised designee of the physician, of the 4 proposed course of treatment. 5 (f) Upon the written request of the employee, the 6 carrier shall give the employee the opportunity for one change 7 of physician during the course of treatment for any one 8 accident. The employee shall be entitled to select another 9 physician from among not fewer than three carrier-authorized 10 physicians not professionally affiliated. In the event the 11 selected physician ceases to practice in Florida or relocates 12 his or her office at a location that is greater than a 50-mile 13 radius from the employee's residence, the employee is entitled 14 to select another physician from among not fewer than three 15 carrier-authorized physicians who are not professionally 16 affiliated. 17 (5) INDEPENDENT MEDICAL EXAMINATIONS.-- 18 (a) In any dispute concerning overutilization, medical 19 benefits, compensability, or disability under this chapter, 20 the carrier or the employee may select an independent medical 21 examiner. The examiner may be a health care provider treating 22 or providing other care to the employee. An independent 23 medical examiner may not render an opinion outside his or her 24 area of expertise, as demonstrated by licensure and applicable 25 practice parameters. Upon the written request of the employee, 26 the carrier shall pay the cost of one independent medical 27 examination per accident. The cost of any additional 28 independent medical examination must be borne by the party 29 requesting the additional independent medical examination. The 30 costs of independent medical examinations expressly relied 31 upon by the judge of compensation claims to award benefits in 13 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 the final compensation order are taxable costs under s. 2 440.34(3). 3 (b) Each party is bound by his or her selection of an 4 independent medical examiner and is entitled to an alternate 5 examiner only if: 6 1. The examiner is not qualified to render an opinion 7 upon an aspect of the employee's illness or injury which is 8 material to the claim or petition for benefits; 9 2. The examiner ceases to practice in the specialty 10 relevant to the employee's condition; 11 3. The examiner is unavailable due to injury, death, 12 or relocation outside a reasonably accessible geographic area; 13 or 14 4. The parties agree to an alternate examiner. 15 Any party may request, or a judge of compensation 16 claims may require, designation of a division medical advisor 17 as an independent medical examiner. The opinion of the 18 advisors acting as examiners shall not be afforded the 19 presumption set forth in paragraph (9)(c). 20 (c) The carrier may, at its election, contact the 21 claimant directly to schedule a reasonable time for an 22 independent medical examination. The carrier must confirm the 23 scheduling agreement in writing within 5 days and notify 24 claimant's counsel, if any, at least 7 days before the date 25 upon which the independent medical examination is scheduled to 26 occur. An attorney representing a claimant is not authorized 27 to schedule independent medical evaluations under this 28 subsection. 29 (d) If the employee fails to appear for the 30 independent medical examination without good cause and fails 31 to advise the physician at least 24 hours before the scheduled 14 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 date for the examination that he or she cannot appear, the 2 employee is barred from recovering compensation for any period 3 during which he or she has refused to submit to such 4 examination. Further, the employee shall reimburse the carrier 5 50 percent of the physician's cancellation or no-show fee 6 unless the carrier that schedules the examination fails to 7 timely provide to the employee a written confirmation of the 8 date of the examination pursuant to paragraph (c) which 9 includes an explanation of why he or she failed to appear. The 10 employee may appeal to a judge of compensation claims for 11 reimbursement when the carrier withholds payment in excess of 12 the authority granted by this section. 13 (e) No medical opinion other than the opinion of a 14 medical advisor appointed by the judge of compensation claims 15 or division, an independent medical examiner, or an authorized 16 treating provider is admissible in proceedings before the 17 judges of compensation claims. The employee or the carrier may 18 each submit into evidence, and the judge of compensation 19 claims shall admit, the medical opinion of no more than one 20 independent medical examiner per specialty. In cases 21 involving occupational disease or repetitive trauma, no 22 medical opinions are admissible unless based on reliable 23 scientific principles sufficiently established to have gained 24 general acceptance in the pertinent area of specialty. 25 (f) Attorney's fees incurred by an injured employee in 26 connection with delay of or opposition to an independent 27 medical examination, including, but not limited to, motions 28 for protective orders, are not recoverable under this chapter. 29 (12) CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM 30 REIMBURSEMENT ALLOWANCES.-- 31 (a) A three-member panel is created, consisting of the 15 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 Insurance Commissioner, or the Insurance Commissioner's 2 designee, and two members to be appointed by the Governor, 3 subject to confirmation by the Senate, one member who, on 4 account of present or previous vocation, employment, or 5 affiliation, shall be classified as a representative of 6 employers, the other member who, on account of previous 7 vocation, employment, or affiliation, shall be classified as a 8 representative of employees. The panel shall determine 9 statewide schedules of maximum reimbursement allowances for 10 medically necessary treatment, care, and attendance provided 11 by physicians, hospitals, ambulatory surgical centers, 12 work-hardening programs, pain programs, and durable medical 13 equipment. The maximum reimbursement allowances for inpatient 14 hospital care shall be based on a schedule of per diem rates, 15 to be approved by the three-member panel no later than March 16 1, 1994, to be used in conjunction with a precertification 17 manual as determined by the division. All compensable charges 18 for hospital outpatient care shall be reimbursed at 75 percent 19 of usual and customary charges. Until the three-member panel 20 approves a schedule of per diem rates for inpatient hospital 21 care and it becomes effective, all compensable charges for 22 hospital inpatient care must be reimbursed at 75 percent of 23 their usual and customary charges. Annually, the three-member 24 panel shall adopt schedules of maximum reimbursement 25 allowances for physicians, hospital inpatient care, hospital 26 outpatient care, ambulatory surgical centers, work-hardening 27 programs, and pain programs. However, the maximum percentage 28 of increase in the individual reimbursement allowance may not 29 exceed the percentage of increase in the Consumer Price Index 30 for the previous year. An individual physician, hospital, 31 ambulatory surgical center, pain program, or work-hardening 16 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 program shall be reimbursed either the usual and customary 2 charge for treatment, care, and attendance, the agreed-upon 3 contract price, or the maximum reimbursement allowance in the 4 appropriate schedule, whichever is less. 5 (b) As to reimbursement for a prescription medication, 6 the reimbursement amount for a prescription shall be the 7 average wholesale price times 1.2 plus $4.18 for the 8 dispensing fee, except where the carrier has contracted for a 9 lower amount. Fees for pharmaceuticals and pharmaceutical 10 services shall be reimbursable at the applicable fee schedule 11 amount. Where the employer or carrier has contracted for such 12 services and the employee elects to obtain them through a 13 provider not a party to the contract, the carrier shall 14 reimburse at the schedule, negotiated, or contract price, 15 whichever is lower. 16 (c) Reimbursement for all fees and other charges for 17 such treatment, care, and attendance, including treatment, 18 care, and attendance provided by any hospital or other health 19 care provider, ambulatory surgical center, work-hardening 20 program, or pain program, must not exceed the amounts provided 21 by the uniform schedule of maximum reimbursement allowances as 22 determined by the panel or as otherwise provided in this 23 section. This subsection also applies to independent medical 24 examinations performed by health care providers under this 25 chapter. Until the three-member panel approves a uniform 26 schedule of maximum reimbursement allowances and it becomes 27 effective, all compensable charges for treatment, care, and 28 attendance provided by physicians, ambulatory surgical 29 centers, work-hardening programs, or pain programs shall be 30 reimbursed at the lowest maximum reimbursement allowance 31 across all 1992 schedules of maximum reimbursement allowances 17 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 for the services provided regardless of the place of service. 2 In determining the uniform schedule, the panel shall first 3 approve the data which it finds representative of prevailing 4 charges in the state for similar treatment, care, and 5 attendance of injured persons. Each health care provider, 6 health care facility, ambulatory surgical center, 7 work-hardening program, or pain program receiving workers' 8 compensation payments shall maintain records verifying their 9 usual charges. In establishing the uniform schedule of maximum 10 reimbursement allowances, the panel must consider: 11 1. The levels of reimbursement for similar treatment, 12 care, and attendance made by other health care programs or 13 third-party providers; 14 2. The impact upon cost to employers for providing a 15 level of reimbursement for treatment, care, and attendance 16 which will ensure the availability of treatment, care, and 17 attendance required by injured workers; 18 3. The financial impact of the reimbursement 19 allowances upon health care providers and health care 20 facilities, including trauma centers as defined in s. 21 395.4001, and its effect upon their ability to make available 22 to injured workers such medically necessary remedial 23 treatment, care, and attendance. The uniform schedule of 24 maximum reimbursement allowances must be reasonable, must 25 promote health care cost containment and efficiency with 26 respect to the workers' compensation health care delivery 27 system, and must be sufficient to ensure availability of such 28 medically necessary remedial treatment, care, and attendance 29 to injured workers; and 30 4. The most recent average maximum allowable rate of 31 increase for hospitals determined by the Health Care Board 18 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 under chapter 408. 2 (14) PAYMENT OF MEDICAL FEES.-- 3 (a) Except for emergency care treatment, fees for 4 medical services are payable only to a health care provider 5 certified and authorized to render remedial treatment, care, 6 or attendance under this chapter. A health care provider may 7 not collect or receive a fee from an injured employee within 8 this state, except as otherwise provided by this chapter. Such 9 providers have recourse against the employer or carrier for 10 payment for services rendered in accordance with this chapter. 11 (b) Fees charged for remedial treatment, care, and 12 attendance may not exceed the applicable fee schedules adopted 13 under this chapter, except a contract entered into between an 14 employer or carrier and a certified health care provider or 15 health care facility for the payment of medical services for 16 covered expenses may provide for fees of up to 125 percent of 17 the applicable fee schedules adopted under this section. 18 (c) Notwithstanding any other provision of this 19 chapter, following overall maximum medical improvement from an 20 injury compensable under this chapter, the employee is 21 obligated to pay a copayment of $10 per visit for medical 22 services. The copayment shall not apply to emergency care 23 provided to the employee. 24 Section 8. Paragraph (d) of subsection (1), paragraph 25 (b) of subsection (2), and subsection (15) of section 440.134, 26 Florida Statutes, are amended to read: 27 440.134 Workers' compensation managed care 28 arrangement.-- 29 (1) As used in this section, the term: 30 (d) "Grievance" means a direct written complaint filed 31 by an injured worker expressing dissatisfaction with the 19 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 insurer's workers' compensation managed care arrangement's 2 refusal to provide medical care provided by an insurer's 3 workers' compensation managed care arrangement health care 4 providers, expressed in writing by an injured worker. 5 (2)(a)(b) Effective January 1, 1997, The employer may 6 shall, subject to the terms and limitations specified 7 elsewhere in this section and chapter, furnish to the employee 8 solely through managed care arrangements such medically 9 necessary remedial treatment, care, and attendance for such 10 period as the nature of the injury or the process of recovery 11 requires. 12 (b)(a) The agency shall authorize an insurer to offer 13 or utilize a workers' compensation managed care arrangement 14 after the insurer files a completed application along with the 15 payment of a $1,000 application fee, and upon the agency's 16 being satisfied that the applicant has the ability to provide 17 quality of care consistent with the prevailing professional 18 standards of care and the insurer and its workers' 19 compensation managed care arrangement otherwise meets the 20 requirements of this section. No insurer may offer or utilize 21 a managed care arrangement without such authorization. The 22 authorization, unless sooner suspended or revoked, shall 23 automatically expire 2 years after the date of issuance unless 24 renewed by the insurer. The authorization shall be renewed 25 upon application for renewal and payment of a renewal fee of 26 $1,000, provided that the insurer is in compliance with the 27 requirements of this section and any rules adopted hereunder. 28 An application for renewal of the authorization shall be made 29 90 days prior to expiration of the authorization, on forms 30 provided by the agency. The renewal application shall not 31 require the resubmission of any documents previously filed 20 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 with the agency if such documents have remained valid and 2 unchanged since their original filing. 3 (15)(a) A workers' compensation managed care 4 arrangement must have and use procedures for hearing 5 complaints and resolving written grievances from injured 6 workers and health care providers. The procedures must be 7 aimed at mutual agreement for settlement and may include 8 arbitration procedures. Procedures provided herein are in 9 addition to other procedures contained in this chapter. 10 (b) The grievance procedure must be described in 11 writing and provided to the affected workers and health care 12 providers. 13 (c) At the time the workers' compensation managed care 14 arrangement is implemented, the insurer must provide detailed 15 information to workers and health care providers describing 16 how a grievance may be registered with the insurer. Within 15 17 days after the date of the request for medical care is 18 received by the insurer or by the insurer's managed care 19 arrangement, whichever date is earlier, the insurer shall 20 grant or deny the request. If the insurer denies the request, 21 the insurer shall notify the injured worker in writing of his 22 or her right to file a grievance. 23 (d) Grievances must be considered in a timely manner 24 and must be transmitted to appropriate decisionmakers who have 25 the authority to fully investigate the issue and take 26 corrective action. If the insurer or the insurer's workers' 27 compensation arrangement fails to notify the injured worker of 28 the outcome of the grievance in writing within 15 days from 29 the date of receiving the grievance, the grievance shall be 30 presumed to be resolved against the injured worker and the 31 grievance procedures shall be presumed exhausted for purposes 21 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 of s. 440.192(3). 2 (e) If a grievance is found to be valid, corrective 3 action must be taken promptly. 4 (f) All concerned parties must be notified of the 5 results of a grievance. 6 (g) The insurer must report annually, no later than 7 March 31, to the agency regarding its grievance procedure 8 activities for the prior calendar year. The report must be in 9 a format prescribed by the agency and must contain the number 10 of grievances filed in the past year and a summary of the 11 subject, nature, and resolution of such grievances. 12 Section 9. Paragraph (a) of subsection (1) of section 13 440.14, Florida Statutes, is amended to read: 14 440.14 Determination of pay.-- 15 (1) Except as otherwise provided in this chapter, the 16 average weekly wages of the injured employee at the time of 17 the injury shall be taken as the basis upon which to compute 18 compensation and shall be determined, subject to the 19 limitations of s. 440.12(2), as follows: 20 (a) If the injured employee has worked in the 21 employment in which she or he was working at the time of the 22 injury, whether for the same or another employer, during 23 substantially the whole of 13 weeks immediately preceding the 24 injury, her or his average weekly wage shall be one-thirteenth 25 of the total amount of wages earned in such employment during 26 the 13 weeks. As used in this paragraph, the term 27 "substantially the whole of 13 weeks" means an actual shall be 28 deemed to mean and refer to a constructive period of 13 weeks 29 as a whole, which shall be defined as the 13 complete weeks 30 before the date of the accident, excluding the week the injury 31 occurs. a consecutive period of 91 days, and The term "during 22 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 substantially the whole of 13 weeks" shall be deemed to mean 2 during not less than 90 percent of the total customary 3 full-time hours of employment within such period considered as 4 a whole. 5 Section 10. Paragraphs (b) and (f) of subsection (1) 6 and paragraph (a) of subsection (3) of section 440.15, Florida 7 Statutes, are amended to read: 8 440.15 Compensation for disability.--Compensation for 9 disability shall be paid to the employee, subject to the 10 limits provided in s. 440.12(2), as follows: 11 (1) PERMANENT TOTAL DISABILITY.-- 12 (b) Any compensable injury eligible for permanent 13 total benefits must be of a nature and severity that prevents 14 the employee from being able to perform his or her previous 15 work. If the employee is engaged in or is capable of being 16 engaged in any gainful employment, he or she is not entitled 17 to permanent total disability. The burden is on the employee 18 to establish that he or she is unable to perform work if such 19 work is available within a 50-mile radius of the employee's 20 residence or such greater distance as the judge determines to 21 be reasonable under the circumstances. In addition, Only a 22 catastrophic injury as defined in s. 440.02 shall, in the 23 absence of conclusive proof of a substantial earning capacity, 24 constitute permanent total disability. Only claimants with 25 catastrophic injuries are eligible for permanent total 26 benefits. In no other case may permanent total disability be 27 awarded. 28 (f)1. If permanent total disability results from 29 injuries that occurred subsequent to June 30, 1955, and for 30 which the liability of the employer for compensation has not 31 been discharged under s. 440.20(11), the injured employee 23 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 shall receive additional weekly compensation benefits equal to 2 5 percent of her or his weekly compensation rate, as 3 established pursuant to the law in effect on the date of her 4 or his injury, multiplied by the number of calendar years 5 since the date of injury. The weekly compensation payable and 6 the additional benefits payable under this paragraph, when 7 combined, may not exceed the maximum weekly compensation rate 8 in effect at the time of payment as determined pursuant to s. 9 440.12(2). Entitlement to these supplemental payments shall 10 cease at age 62 if the employee is eligible for social 11 security benefits under 42 U.S.C. ss. 402 and 423, whether or 12 not the employee has applied for such benefits. These 13 supplemental benefits shall be paid by the division out of the 14 Workers' Compensation Administration Trust Fund when the 15 injury occurred subsequent to June 30, 1955, and before July 16 1, 1984. These supplemental benefits shall be paid by the 17 employer when the injury occurred on or after July 1, 1984. 18 Supplemental benefits are not payable for any period prior to 19 October 1, 1974. 20 2.a. The division shall provide by rule for the 21 periodic reporting to the division of all earnings of any 22 nature and social security income by the injured employee 23 entitled to or claiming additional compensation under 24 subparagraph 1. Neither the division nor the employer or 25 carrier shall make any payment of those additional benefits 26 provided by subparagraph 1. for any period during which the 27 employee willfully fails or refuses to report upon request by 28 the division in the manner prescribed by such rules. 29 b. The division shall provide by rule for the periodic 30 reporting to the employer or carrier of all earnings of any 31 nature and social security income by the injured employee 24 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 entitled to or claiming benefits for permanent total 2 disability. The employer or carrier is not required to make 3 any payment of benefits for permanent total disability for any 4 period during which the employee willfully fails or refuses to 5 report upon request by the employer or carrier in the manner 6 prescribed by such rules or if any employee who is receiving 7 permanent total disability benefits refuses to apply for or 8 cooperate with the employer or carrier in applying for social 9 security benefits. 10 3. When an injured employee receives a full or partial 11 lump-sum advance of the employee's permanent total disability 12 compensation benefits, the employee's benefits under this 13 paragraph shall be computed on the employee's weekly 14 compensation rate as reduced by the lump-sum advance. 15 (3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.-- 16 (a) Impairment benefits.-- 17 1. Once the employee has reached the date of maximum 18 medical improvement, impairment benefits are due and payable 19 within 20 days after the carrier has knowledge of the 20 impairment. 21 2. The three-member panel, in cooperation with the 22 division, shall establish and use a uniform permanent 23 impairment rating schedule. This schedule must be based on 24 medically or scientifically demonstrable findings as well as 25 the systems and criteria set forth in the American Medical 26 Association's Guides to the Evaluation of Permanent 27 Impairment; the Snellen Charts, published by American Medical 28 Association Committee for Eye Injuries; and the Minnesota 29 Department of Labor and Industry Disability Schedules. The 30 schedule should be based upon objective findings. The schedule 31 shall be more comprehensive than the AMA Guides to the 25 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 Evaluation of Permanent Impairment and shall expand the areas 2 already addressed and address additional areas not currently 3 contained in the guides. On August 1, 1979, and pending the 4 adoption, by rule, of a permanent schedule, Guides to the 5 Evaluation of Permanent Impairment, copyright 1977, 1971, 6 1988, by the American Medical Association, shall be the 7 temporary schedule and shall be used for the purposes hereof. 8 For injuries after July 1, 1990, pending the adoption by 9 division rule of a uniform disability rating schedule, the 10 Minnesota Department of Labor and Industry Disability Schedule 11 shall be used unless that schedule does not address an injury. 12 In such case, the Guides to the Evaluation of Permanent 13 Impairment by the American Medical Association shall be used. 14 Determination of permanent impairment under this schedule must 15 be made by a physician licensed under chapter 458, a doctor of 16 osteopathic medicine licensed under chapters 458 and 459, a 17 chiropractic physician licensed under chapter 460, a podiatric 18 physician licensed under chapter 461, an optometrist licensed 19 under chapter 463, or a dentist licensed under chapter 466, as 20 appropriate considering the nature of the injury. No other 21 persons are authorized to render opinions regarding the 22 existence of or the extent of permanent impairment. 23 3. All impairment income benefits shall be based on an 24 impairment rating using the impairment schedule referred to in 25 subparagraph 2. Impairment income benefits are paid weekly at 26 a rate equal to 100 percent of the rate of 50 percent of the 27 employee's compensation rate average weekly temporary total 28 disability benefit, not to exceed the maximum weekly benefit 29 under s. 440.12. An employee's entitlement to impairment 30 income benefits begins the day after the employee reaches 31 maximum medical improvement or the expiration of temporary 26 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 benefits, whichever occurs earlier, and continues until the 2 earlier of: 3 a. The expiration of a period computed at the rate of 4 3 weeks for each percentage point of impairment; or 5 b. The death of the employee. 6 4. After the employee has been certified by a doctor 7 as having reached maximum medical improvement or 6 weeks 8 before the expiration of temporary benefits, whichever occurs 9 earlier, the certifying doctor shall evaluate the condition of 10 the employee and assign an impairment rating, using the 11 impairment schedule referred to in subparagraph 2. 12 Compensation is not payable for the mental, psychological, or 13 emotional injury arising out of depression from being out of 14 work or from any preexisting mental, psychological, or 15 emotional condition. If the certification and evaluation are 16 performed by a doctor other than the employee's treating 17 doctor, the certification and evaluation must be submitted to 18 the treating doctor, and the treating doctor must indicate 19 agreement or disagreement with the certification and 20 evaluation. The certifying doctor shall issue a written report 21 to the division, the employee, and the carrier certifying that 22 maximum medical improvement has been reached, stating the 23 impairment rating, and providing any other information 24 required by the division. If the employee has not been 25 certified as having reached maximum medical improvement before 26 the expiration of 102 weeks after the date temporary total 27 disability benefits begin to accrue, the carrier shall notify 28 the treating doctor of the requirements of this section. 29 5. The carrier shall pay the employee impairment 30 income benefits for a period based on the impairment rating. 31 6. The division may by rule specify forms and 27 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 procedures governing the method of payment of wage loss and 2 impairment benefits for dates of accidents before January 1, 3 1994, and for dates of accidents on or after January 1, 1994. 4 Section 11. Subsection (2) of section 440.185, Florida 5 Statutes, is amended to read: 6 440.185 Notice of injury or death; reports; penalties 7 for violations.-- 8 (2) Within 7 days after actual knowledge of injury or 9 death, the employer shall report such injury or death to its 10 carrier, in a format prescribed by the division, and shall 11 provide a copy of such report to the employee or the 12 employee's estate. The report of injury shall contain the 13 following information: 14 (a) The name, address, and business of the employer; 15 (b) The name, social security number, street, mailing 16 address, telephone number, and occupation of the employee; 17 (c) The cause and nature of the injury or death; 18 (d) The year, month, day, and hour when, and the 19 particular locality where, the injury or death occurred; and 20 (e) A record of the employee's earnings for the 13 21 weeks before the date of injury; and 22 (f)(e) Such other information as the division may 23 require by rule. 24 25 The carrier shall, within 14 days after the employer's receipt 26 of the form reporting the injury, file the information 27 required by this subsection with the division in Tallahassee. 28 However, the division may by rule provide for a different 29 reporting system for those types of injuries which it 30 determines should be reported in a different manner and for 31 those cases which involve minor injuries requiring 28 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 professional medical attention in which the employee does not 2 lose more than 7 days of work as a result of the injury and is 3 able to return to the job immediately after treatment and 4 resume regular work. 5 Section 12. Section 440.191, Florida Statutes, is 6 amended to read: 7 440.191 Employee Assistance and Ombudsman Office.-- 8 (1)(a) In order to effect the self-executing features 9 of the Workers' Compensation Law, this chapter shall be 10 construed to permit injured employees and employers or the 11 employer's carrier to resolve disagreements without undue 12 expense, costly litigation, or delay in the provisions of 13 benefits. It is the duty of all who participate in the 14 workers' compensation system, including, but not limited to, 15 carriers, service providers, health care providers, managed 16 care arrangements, attorneys, employers, and employees, to 17 attempt to resolve disagreements in good faith and to 18 cooperate with the division's efforts to resolve disagreements 19 between the parties. The division may by rule prescribe 20 definitions that are necessary for the effective 21 administration of this section. 22 (b) An Employee Assistance and Ombudsman Office is 23 created within the Division of Workers' Compensation to inform 24 and assist injured workers, employers, carriers, and health 25 care providers, and managed care arrangements in fulfilling 26 their responsibilities under this chapter. The division may by 27 rule specify forms and procedures for administering requests 28 for assistance provided by this section. 29 (c) The Employee Assistance and Ombudsman Office, 30 Division of Workers' Compensation, shall be a resource 31 available to all employees who participate in the workers' 29 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 compensation system and shall take all steps necessary to 2 educate and disseminate information to employees and 3 employers. Upon receiving a notice of injury or death, the 4 Employee Assistance and Ombudsman Office is authorized to 5 initiate contact with the injured employee or employee's 6 representative to discuss rights and responsibilities of the 7 employee under this chapter and the services available through 8 the Employee Assistance and Ombudsman Office. 9 (2)(a) An employee may not file a petition requesting 10 any benefit under this chapter unless the employee has 11 exhausted the procedures for informal dispute resolution under 12 this section. 13 (a)(b) If at any time the employer or its carrier 14 fails to provide benefits to which the employee believes she 15 or he is entitled, the employee shall contact the office to 16 request assistance in resolving the dispute. The office may 17 review petitions for benefits filed under s. 440.192 shall 18 investigate the dispute and may shall attempt to facilitate an 19 agreement between the employee and the employer or carrier. 20 The employee, the employer, and the carrier shall cooperate 21 with the office and shall timely provide the office with any 22 documents or other information that it may require in 23 connection with its efforts under this section. 24 (b)(c) The office may compel parties to attend 25 conferences in person or by telephone in an attempt to resolve 26 disputes quickly and in the most efficient manner possible. 27 Settlement agreements resulting from such conferences must be 28 submitted to the Office of the Judges of Compensation Claims 29 for approval. 30 (c)(d) The Employee Assistance and Ombudsman Office 31 may assign an ombudsman to assist the employee in resolving 30 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 the dispute. If the dispute is not resolved within 30 days 2 after the employee contacts the office, The ombudsman may 3 shall, at the employee's request, assist the employee in 4 drafting a petition for benefits and explain the procedures 5 for filing petitions. The division may by rule determine the 6 method used to calculate the 30-day period. The Employee 7 Assistance and Ombudsman Office may not represent employees 8 before the judges of compensation claims. An employer or 9 carrier may not pay any attorneys' fees on behalf of the 10 employee for services rendered or costs incurred in connection 11 with this section, unless expressly authorized elsewhere in 12 this chapter. 13 Section 13. Section 440.192, Florida Statutes, is 14 amended to read: 15 440.192 Procedure for resolving benefit disputes.-- 16 (1) Subject to s. 440.191, any employee who has not 17 received a benefit to which the employee believes she or he is 18 entitled under this chapter shall file by certified mail, or 19 by electronic means approved by the Deputy Chief Judge, with 20 the Office of the Judges of Compensation Claims within the 21 Division of Administrative Hearings a petition for benefits 22 which meets the requirements of this section. The division 23 shall inform employees of the location of the Office of the 24 Judges of Compensation Claims for purposes of filing a 25 petition for benefits. The employee shall also serve copies 26 of the petition for benefits by certified mail, or by 27 electronic means approved by the Deputy Chief Judge, upon the 28 employer and, the employer's carrier, and the division in 29 Tallahassee a petition for benefits that meets the 30 requirements of this section. The Deputy Chief Judge shall 31 refer the petitions to the judges of compensation claims. The 31 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 division shall refer the petition to the Office of the Judges 2 of Compensation Claims. 3 (2) Upon receipt the Office of the Judges of 4 Compensation Claims shall review each petition and shall 5 dismiss each petition, or any portion of the petition, upon 6 its own motion or upon the motion of any party, that does not 7 on its face specifically identify or itemize the following: 8 (a) Name, address, telephone number, and social 9 security number of the employee. 10 (b) Name, address, and telephone number of the 11 employer. 12 (c) A detailed description of the injury and cause of 13 the injury, including the location of the occurrence and the 14 date of the accident. 15 (d) A detailed description of the employee's job, work 16 responsibilities, and work the employee was performing when 17 the injury occurred. 18 (e) The time period for which compensation was not 19 timely provided and the specific classification of the 20 compensation. 21 (f) Date of maximum medical improvement, character of 22 disability, and specific statement of all benefits or 23 compensation that the employee is seeking. 24 (g) The specific All travel costs to which the 25 employee believes she or he is entitled, including dates of 26 travel and purpose of travel, means of transportation, and 27 mileage, including the date the request for mileage was filed 28 with the carrier, and a copy of the request for mileage filed 29 with the carrier. 30 (h) Specific listing of all medical charges alleged 31 unpaid, including the name and address of the medical 32 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 provider, the amounts due, and the specific dates of 2 treatment. 3 (i) The type or nature of treatment care or attendance 4 sought and the justification for such treatment. If the 5 employee is under the care of a physician for the injury 6 identified in paragraph (c), a copy of the physician's 7 request, authorization, or recommendation for treatment, care, 8 or attendant care must accompany the petition. 9 (j) Specific explanation of any other disputed issue 10 that a judge of compensation claims will be called to rule 11 upon. 12 (k) Any other information and documentation the Deputy 13 Chief Judge may require by rule. 14 (3) A petition for benefits may contain a claim for 15 past benefits and continuing benefits in any benefit category, 16 but is limited to those in default and ripe, due, and owing on 17 the date the petition is filed. If the employer has elected to 18 satisfy its obligation to provide medical treatment, care, and 19 attendance through a managed care arrangement designated under 20 this chapter, the employee must exhaust all managed care 21 grievance procedures before filing a petition for benefits 22 under this section. 23 (4) The dismissal of any petition or portion of the 24 petition under this section is without prejudice and does not 25 require a hearing. 26 (5)(4) The petition must include a certification by 27 the claimant or, if the claimant is represented by counsel, 28 the claimant's attorney, stating that the claimant, or 29 attorney if the claimant is represented by counsel, has made a 30 good faith effort to resolve the dispute and that the claimant 31 or attorney was unable to resolve the dispute with the 33 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 carrier. 2 (6)(5) All motions to dismiss must state with 3 particularity the basis for the motion. The judge of 4 compensation claims shall enter an order upon such motions 5 without hearing, unless good cause for hearing is shown. When 6 any petition or portion of a petition is dismissed for lack of 7 specificity under this subsection, the claimant must be 8 allowed 20 days after the date of the order of dismissal in 9 which to file an amended petition. Any grounds for dismissal 10 for lack of specificity under this section not asserted within 11 60 30 days after receipt of the petition for benefits are 12 thereby waived. 13 (7)(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 (8)(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 the filing of a petition that does not meeting meet 22 the requirements of this section. 23 (9)(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 the petition notice of denial with the Office of 28 the Judges of Compensation Claims division. The carrier must 29 list all benefits requested but not paid and explain its 30 justification for nonpayment in the response to the petition 31 notice of denial. A carrier that does not deny compensability 34 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 in accordance with s. 440.20(4) is deemed to have accepted the 2 employee's injuries as compensable, unless it can establish 3 material facts relevant to the issue of compensability that 4 could not have been discovered through reasonable 5 investigation within the 120-day period. The carrier shall 6 provide copies of the response notice to the filing party, 7 employer, and claimant by certified mail. 8 Section 14. Subsections (4) and (11) of section 9 440.20, Florida Statutes, are amended to read: 10 440.20 Time for payment of compensation; penalties for 11 late payment.-- 12 (4) If the carrier is uncertain of its obligation to 13 provide benefits or compensation, it may initiate payment 14 without prejudice and without admitting liability. The carrier 15 shall immediately and in good faith commence investigation of 16 the employee's entitlement to benefits under this chapter and 17 shall admit or deny compensability within 120 days after the 18 initial provision of compensation or benefits as required by 19 subsection (2) or s. 440.192(8). Upon commencement of payment 20 as required by subsection (2) or s. 440.192(8), the carrier 21 shall provide written notice to the employee that it has 22 elected to pay all or part of the claim pending further 23 investigation, and that it will advise the employee of claim 24 acceptance or denial within 120 days. A carrier that fails to 25 deny compensability within 120 days after the initial 26 provision of benefits or payment of compensation, as required 27 by subsection (2) or s. 440.192(8), waives the right to deny 28 compensability, unless the carrier can establish material 29 facts relevant to the issue of compensability that it could 30 not have discovered through reasonable investigation within 31 the 120-day period. The initial provision of compensation or 35 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 benefits, for purposes of this subsection, shall mean the 2 first installment of compensation or benefits to be paid by 3 the carrier under subsection (2) or pursuant to a petition of 4 benefits under s. 440.192(8). 5 (11)(a) When a claimant is not represented by counsel, 6 upon joint petition of all interested parties, a lump-sum 7 payment in exchange for the employer's or carrier's release 8 from liability for future medical expenses, as well as future 9 payments of compensation expenses and any other benefits 10 provided under this chapter, shall be allowed at any time in 11 any case in which the employer or carrier has filed a written 12 notice of denial within 120 days after the employer receives 13 notice date of the injury, and the judge of compensation 14 claims at a hearing to consider the settlement proposal finds 15 a justiciable controversy as to legal or medical 16 compensability of the claimed injury or the alleged accident. 17 The employer or carrier may not pay any attorney's fees on 18 behalf of the claimant for any settlement under this section 19 unless expressly authorized elsewhere in this chapter. Upon 20 the joint petition of all interested parties and after giving 21 due consideration to the interests of all interested parties, 22 the judge of compensation claims may enter a compensation 23 order approving and authorizing the discharge of the liability 24 of the employer for compensation and remedial treatment, care, 25 and attendance, as well as rehabilitation expenses, by the 26 payment of a lump sum. Such a compensation order so entered 27 upon joint petition of all interested parties is not subject 28 to modification or review under s. 440.28. If the settlement 29 proposal together with supporting evidence is not approved by 30 the judge of compensation claims, it shall be considered void. 31 Upon approval of a lump-sum settlement under this subsection, 36 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 the judge of compensation claims shall send a report to the 2 Chief Judge of the amount of the settlement and a statement of 3 the nature of the controversy. The Chief Judge shall keep a 4 record of all such reports filed by each judge of compensation 5 claims and shall submit to the Legislature a summary of all 6 such reports filed under this subsection annually by September 7 15. 8 (b) When a claimant is not represented by counsel, 9 upon joint petition of all interested parties, a lump-sum 10 payment in exchange for the employer's or carrier's release 11 from liability for future medical expenses, as well as future 12 payments of compensation and rehabilitation expenses, and any 13 other benefits provided under this chapter, may be allowed at 14 any time in any case after the injured employee has attained 15 maximum medical improvement. An employer or carrier may not 16 pay any attorney's fees on behalf of the claimant for any 17 settlement, unless expressly authorized elsewhere in this 18 chapter. A compensation order so entered upon joint petition 19 of all interested parties shall not be subject to modification 20 or review under s. 440.28. However, a judge of compensation 21 claims is not required to approve any award for lump-sum 22 payment when it is determined by the judge of compensation 23 claims that the payment being made is in excess of the value 24 of benefits the claimant would be entitled to under this 25 chapter. The judge of compensation claims shall make or cause 26 to be made such investigations as she or he considers 27 necessary, in each case in which the parties have stipulated 28 that a proposed final settlement of liability of the employer 29 for compensation shall not be subject to modification or 30 review under s. 440.28, to determine whether such final 31 disposition will definitely aid the rehabilitation of the 37 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 injured worker or otherwise is clearly for the best interests 2 of the person entitled to compensation and, in her or his 3 discretion, may have an investigation made by the 4 Rehabilitation Section of the Division of Workers' 5 Compensation. The joint petition and the report of any 6 investigation so made will be deemed a part of the proceeding. 7 An employer shall have the right to appear at any hearing 8 pursuant to this subsection which relates to the discharge of 9 such employer's liability and to present testimony at such 10 hearing. The carrier shall provide reasonable notice to the 11 employer of the time and date of any such hearing and inform 12 the employer of her or his rights to appear and testify. When 13 the claimant is represented by counsel or when the claimant 14 and carrier or employer are represented by counsel, final 15 approval of the lump-sum settlement agreement, as provided for 16 in a joint petition and stipulation, shall be approved by 17 entry of an order within 7 days after the filing of such joint 18 petition and stipulation without a hearing, unless the judge 19 of compensation claims determines, in her or his discretion, 20 that additional testimony is needed before such settlement can 21 be approved or disapproved and so notifies the parties. The 22 probability of the death of the injured employee or other 23 person entitled to compensation before the expiration of the 24 period during which such person is entitled to compensation 25 shall, in the absence of special circumstances making such 26 course improper, be determined in accordance with the most 27 recent United States Life Tables published by the National 28 Office of Vital Statistics of the United States Department of 29 Health and Human Services. The probability of the happening of 30 any other contingency affecting the amount or duration of the 31 compensation, except the possibility of the remarriage of a 38 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 surviving spouse, shall be disregarded. As a condition of 2 approving a lump-sum payment to a surviving spouse, the judge 3 of compensation claims, in the judge of compensation claims' 4 discretion, may require security which will ensure that, in 5 the event of the remarriage of such surviving spouse, any 6 unaccrued future payments so paid may be recovered or recouped 7 by the employer or carrier. Such applications shall be 8 considered and determined in accordance with s. 440.25. 9 (c) Notwithstanding s. 440.21(2), when a claimant is 10 represented by counsel, the claimant may waive all rights to 11 all benefits under this chapter by entering into a settlement 12 agreement releasing the employer and the carrier from 13 liability for workers' compensation benefits in exchange for a 14 lump-sum payment to the claimant. The settlement agreement 15 requires approval by the judge of compensation claims only as 16 to the attorney's fees paid to the claimant's attorney by the 17 claimant. The judge of compensation claims shall not approve 18 settlement proposals, including any stipulations or agreements 19 between the parties or between a claimant and his or her 20 attorney related to the settlement proposal, which provide for 21 an attorney's fee in excess of the amount permitted in s. 22 440.34. The parties need not submit any information or 23 documentation in support of the settlement, except as needed 24 to justify the amount of the attorney's fees. Neither the 25 employer nor the carrier is responsible for any attorney's 26 fees relating to the settlement and release of claims under 27 this section. Payment of the lump-sum settlement amount must 28 be made within 14 days after the date the judge of 29 compensation claims mails the order approving the attorney's 30 fees. Any order entered by a judge of compensation claims 31 approving the attorney's fees as set out in the settlement 39 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 under this subsection is not considered to be an award and is 2 not subject to modification or review. The judge of 3 compensation claims shall report these settlements to the 4 chief judge in accordance with the requirements set forth in 5 s. 440.11(a) and (b). Settlements entered into under this 6 subsection are valid and apply to all dates of accident. 7 (d) With respect to any lump-sum settlement under this 8 subsection, a judge of compensation claims must consider at 9 the time of the settlement, whether the settlement allocation 10 provides for the appropriate recovery of child support 11 arrearages. Neither the employer nor the carrier has a duty to 12 investigate or collect information regarding child-support 13 arrearages. 14 (e)(c) This section applies to all claims that the 15 parties have not previously settled, regardless of the date of 16 accident. 17 Section 15. Subsections (1), (2), (3), and (4) of 18 section 440.25, Florida Statutes, are amended to read: 19 440.25 Procedures for mediation and hearings.-- 20 (1) Within 90 21 days after a petition for benefits is 21 filed under s. 440.192, a mediation conference concerning such 22 petition shall be held. Within 40 7 days after such petition 23 is filed, the judge of compensation claims shall notify the 24 interested parties by order that a mediation conference 25 concerning such petition will be held unless the parties have 26 notified the Office of the Judges of Compensation Claims that 27 a mediation has been held. Such order must notice shall give 28 the date by which, time, and location of the mediation 29 conference must be held. Such order notice may be served 30 personally upon the interested parties or may be sent to the 31 interested parties by mail. Continuances may be granted only 40 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 if the requesting party demonstrates to the judge of 2 compensation claims that the reason for requesting the 3 continuance arises from circumstances beyond the party's 4 control. Any order granting a continuance must set forth the 5 date of the rescheduled mediation conference. A mediation 6 conference may not be used solely for the purpose of mediating 7 attorney's fees. 8 (2) Any party who participates in a mediation 9 conference shall not be precluded from requesting a hearing 10 following the mediation conference should both parties not 11 agree to be bound by the results of the mediation conference. 12 A mediation conference is required to be held unless this 13 requirement is waived by the Chief Judge. No later than 3 days 14 prior to the mediation conference, all parties must submit any 15 applicable motions, including, but not limited to, a motion to 16 waive the mediation conference, to the judge of compensation 17 claims. 18 (3)(a) Such mediation conference shall be conducted 19 informally and shall does not require the use of formal rules 20 of evidence or procedure. Any information from the files, 21 reports, case summaries, mediator's notes, or other 22 communications or materials, oral or written, relating to a 23 mediation conference under this section obtained by any person 24 performing mediation duties is privileged and confidential and 25 may not be disclosed without the written consent of all 26 parties to the conference. Any research or evaluation effort 27 directed at assessing the mediation program activities or 28 performance must protect the confidentiality of such 29 information. Each party to a mediation conference has a 30 privilege during and after the conference to refuse to 31 disclose and to prevent another from disclosing communications 41 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 made during the conference whether or not the contested issues 2 are successfully resolved. This subsection and paragraphs 3 (4)(a) and (b) shall not be construed to prevent or inhibit 4 the discovery or admissibility of any information that is 5 otherwise subject to discovery or that is admissible under 6 applicable law or rule of procedure, except that any conduct 7 or statements made during a mediation conference or in 8 negotiations concerning the conference are inadmissible in any 9 proceeding under this chapter. 10 (b)1. Unless the parties conduct a private mediation 11 under subparagraph 2., mediation shall be conducted by a 12 mediator selected by the Deputy Chief Judge from among 13 mediators The Chief Judge shall select a mediator. The 14 mediator shall be employed on a full-time basis by the Office 15 of the Judges of Compensation Claims. A mediator must be a 16 member of The Florida Bar for at least 5 years and must 17 complete a mediation training program approved by the Chief 18 Judge. Adjunct mediators may be employed by the Office of the 19 Judges of Compensation Claims on an as-needed basis and shall 20 be selected from a list prepared by the Chief Judge. An 21 adjunct mediator must be independent of all parties 22 participating in the mediation conference. An adjunct mediator 23 must be a member of The Florida Bar for at least 5 years and 24 must complete a mediation training program approved by the 25 Chief Judge. An adjunct mediator shall have access to the 26 office, equipment, and supplies of the judge of compensation 27 claims in each district. 28 2. In the event the parties agree or in the event no 29 mediators under subparagraph 1. are available to conduct the 30 required mediation within the period specified in this 31 section, the parties shall hold a mediation conference at the 42 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 carrier's expense within the 90-day period set for mediation. 2 The mediation conference shall be conducted by a mediator who 3 is a member in good standing of The Florida Bar with at least 4 5 years' of Florida practice and is certified under s. 44.106. 5 If the parties do not agree upon a mediator within 10 days 6 after the date of the order, the claimant shall notify the 7 judge in writing and the judge shall appoint a mediator under 8 this subparagraph within 7 days. In the event both parties 9 agree, the results of the mediation conference shall be 10 binding and neither party shall have a right to appeal the 11 results. In the event either party refuses to agree to the 12 results of the mediation conference, the results of the 13 mediation conference as well as the testimony, witnesses, and 14 evidence presented at the conference shall not be admissible 15 at any subsequent proceeding on the claim. The mediator shall 16 not be called in to testify or give deposition to resolve any 17 claim for any hearing before the judge of compensation claims. 18 The employer may be represented by an attorney at the 19 mediation conference if the employee is also represented by an 20 attorney at the mediation conference. 21 (c) The parties shall make a good-faith effort to 22 complete the pretrial stipulations before the conclusion of 23 the mediation conference if the claims, except for attorney's 24 fees and costs, have not been settled and if any claims in any 25 filed petition remain unresolved. The judge of compensation 26 claims may sanction a party or both parties for failure to 27 complete the pretrial stipulations before the conclusion of 28 the mediation conference. 29 (4)(a) If the parties fail to submit written pretrial 30 stipulations at the mediation conference, on the 10th day 31 following commencement of mediation, the questions in dispute 43 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 have not been resolved, the judge of compensation claims shall 2 order a pretrial hearing to occur within 14 days after the 3 date of mediation ordered by the judge of compensation claims 4 hold a pretrial hearing. The judge of compensation claims 5 shall give the interested parties at least 7 days' advance 6 notice of the pretrial hearing by mail. At the pretrial 7 hearing, the judge of compensation claims shall, subject to 8 paragraph (b), set a date for the final hearing that allows 9 the parties at least 30 days to conduct discovery unless the 10 parties consent to an earlier hearing date. 11 (b) The final hearing must be held and concluded 12 within 90 45 days after the mediation conference is held 13 pretrial hearing. Continuances may be granted only if the 14 requesting party demonstrates to the judge of compensation 15 claims that the reason for requesting the continuance arises 16 from circumstances beyond the party's control. The written 17 consent of the claimant must be obtained before any request is 18 granted for an additional continuance after the initial 19 continuance is granted. Any order granting a continuance must 20 set forth the date and time of the rescheduled hearing. 21 Continuances may be granted only if the requesting party 22 demonstrates to the judge of compensation claims that the 23 reason for requesting the continuances arises from 24 circumstances beyond the party's control. If a judge of 25 compensation claims grants two or more continuances to a 26 requesting party, the judge of compensation claims shall 27 report such continuances to the Deputy Chief Judge. 28 (c) The judge of compensation claims shall give the 29 interested parties at least 7 days' advance notice of the 30 final hearing, served upon the interested parties by mail. 31 (d) The final hearing shall be held within 210 days 44 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 after receipt of the petition for benefits in the county where 2 the injury occurred, if the injury occurred in this state, 3 unless otherwise agreed to between the parties and authorized 4 by the judge of compensation claims in the county where the 5 injury occurred. If the injury occurred outside without the 6 state and is one for which compensation is payable under this 7 chapter, then the final hearing above referred to may be held 8 in the county of the employer's residence or place of 9 business, or in any other county of the state that which will, 10 in the discretion of the Chief Judge, be the most convenient 11 for a hearing. The final hearing shall be conducted by a judge 12 of compensation claims, who shall, within 30 14 days after 13 final hearing or closure of the hearing record, unless 14 otherwise agreed by the parties, enter a final order on the 15 merits of the disputed issues determine the dispute in a 16 summary manner. The judge of compensation claims may enter an 17 abbreviated final order in cases when compensability is not 18 disputed. Either party may request separate findings of fact 19 and conclusions of law. At the final such hearing, the 20 claimant and employer may each present evidence in respect of 21 the claims presented by the petition for benefits such claim 22 and may be represented by any attorney authorized in writing 23 for such purpose. When there is a conflict in the medical 24 evidence submitted at the hearing, the provisions of s. 440.13 25 shall apply. The report or testimony of the expert medical 26 advisor shall be made a part of the record of the proceeding 27 and shall be given the same consideration by the judge of 28 compensation claims as is accorded other medical evidence 29 submitted in the proceeding; and all costs incurred in 30 connection with such examination and testimony may be assessed 31 as costs in the proceeding, subject to the provisions of s. 45 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 440.13. No judge of compensation claims may make a finding of 2 a degree of permanent impairment that is greater than the 3 greatest permanent impairment rating given the claimant by any 4 examining or treating physician, except upon stipulation of 5 the parties. 6 (e) The order making an award or rejecting the claim, 7 referred to in this chapter as a "compensation order," shall 8 set forth the findings of ultimate facts and the mandate; and 9 the order need not include any other reason or justification 10 for such mandate. The compensation order shall be filed in the 11 office of the division at Tallahassee. A copy of such 12 compensation order shall be sent by mail to the parties and 13 attorneys of record at the last known address of each, with 14 the date of mailing noted thereon. 15 (f) Each judge of compensation claims is required to 16 submit a special report to the Chief Judge in each contested 17 workers' compensation case in which the case is not determined 18 within 30 14 days of final hearing. Said form shall be 19 provided by the Chief Judge and shall contain the names of the 20 judge of compensation claims and of the attorneys involved and 21 a brief explanation by the judge of compensation claims as to 22 the reason for such a delay in issuing a final order. The 23 Chief Judge shall compile these special reports into an annual 24 public report to the Governor, the Secretary of Labor and 25 Employment Security, the Legislature, The Florida Bar, and the 26 appellate district judicial nominating commissions. 27 (g) Judges of compensation claims shall adopt and 28 enforce uniform local rules for workers' compensation. 29 (g)(h) Notwithstanding any other provision of this 30 section, the judge of compensation claims may require the 31 appearance of the parties and counsel before her or him 46 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 without written notice for an emergency conference where there 2 is a bona fide emergency involving the health, safety, or 3 welfare of an employee. An emergency conference under this 4 section may result in the entry of an order or the rendering 5 of an adjudication by the judge of compensation claims. 6 (h)(i) To expedite dispute resolution and to enhance 7 the self-executing features of the Workers' Compensation Law, 8 the Chief Judge shall make provision by rule or order for the 9 resolution of appropriate motions by judges of compensation 10 claims without oral hearing upon submission of brief written 11 statements in support and opposition, and for expedited 12 discovery and docketing. Unless the judge of compensation 13 claims orders a hearing under paragraph (i), claims related to 14 the determination of pay under s. 440.14 shall be resolved 15 under this paragraph. 16 (i)(j) To further expedite dispute resolution and to 17 enhance the self-executing features of the system, those 18 petitions filed in accordance with s. 440.192 that involve a 19 claim for benefits of $5,000 or less shall, in the absence of 20 compelling evidence to the contrary, be presumed to be 21 appropriate for expedited resolution under this paragraph; and 22 any other claim filed in accordance with s. 440.192, upon the 23 written agreement of both parties and application by either 24 party, may similarly be resolved under this paragraph. Claims 25 for medical-only benefits of $5,000, or less, or medical 26 mileage reimbursement shall, in the absence of compelling 27 evidence to the contrary, be resolved through the expedited 28 dispute resolution process under this paragraph. For purposes 29 of expedited resolution pursuant to this paragraph, the Chief 30 Judge shall make provision by rule or order for expedited and 31 limited discovery and expedited docketing in such cases. At 47 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 least 15 days prior to hearing, the parties shall exchange and 2 file with the judge of compensation claims a pretrial outline 3 of all issues, defenses, and witnesses on a form promulgated 4 by the Chief Judge; provided, in no event shall such hearing 5 be held without 15 days' written notice to all parties. No 6 pretrial hearing shall be held. The judge of compensation 7 claims shall limit all argument and presentation of evidence 8 at the hearing to a maximum of 30 minutes, and such hearings 9 shall not exceed 30 minutes in length. Neither party shall be 10 required to be represented by counsel. The employer or carrier 11 may be represented by an adjuster or other qualified 12 representative. The employer or carrier and any witness may 13 appear at such hearing by telephone. The rules of evidence 14 shall be liberally construed in favor of allowing introduction 15 of evidence. 16 (j) A judge of compensation claims, either upon the 17 motion of a party or its own motion, may dismiss a petition 18 for lack of prosecution if no petitions, responses, motions, 19 orders, requests for hearings, or notices of deposition have 20 been filed for a period of 12 months, unless good cause is 21 shown. Dismissals for lack of prosecution are without 22 prejudice and do not require a hearing. 23 (k) A judge of compensation claims may not award 24 interest on unpaid medical bills, nor may the amount of such 25 bills be used to calculate the amount of interest awarded. 26 27 Regardless of the date benefits were initially requested, 28 attorney's fees do not attach under this subsection until 30 29 days from the date the carrier or employer, if self-insured, 30 receives the petition. 31 Section 16. Subsection (4) of section 440.29, Florida 48 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 Statutes, is amended to read: 2 440.29 Procedure before the judge of compensation 3 claims.-- 4 (4) All medical reports of authorized treating health 5 care providers or independent medical examiners whose medical 6 opinion is submitted under s. 440.13(5)(e) relating to the 7 claimant and subject accident shall be received into evidence 8 by the judge of compensation claims upon proper motion. 9 However, such records must be served on the opposing party at 10 least 30 days before the final hearing. This section does not 11 limit any right of further discovery, including, but not 12 limited to, depositions. 13 Section 17. Subsections (1) and (3) of section 440.34, 14 Florida Statutes, are amended to read: 15 440.34 Attorney's fees; costs.-- 16 (1) A fee, gratuity, or other consideration may not be 17 paid for services rendered for a claimant in connection with 18 any proceedings arising under this chapter, unless approved as 19 reasonable by the judge of compensation claims or court having 20 jurisdiction over such proceedings. Except as provided by this 21 subsection, any attorney's fee approved by a judge of 22 compensation claims for services rendered to a claimant must 23 equal to 25 20 percent of the first $5,000 of the amount of 24 the benefits secured, 20 15 percent of the next $5,000 of the 25 amount of the benefits secured, 15 10 percent of the remaining 26 amount of the benefits secured to be provided during the first 27 10 years after the date the claim is filed, and 10 5 percent 28 of the benefits secured after 10 years. However, In 29 medical-only petitions, the judge of compensation claims shall 30 consider the following factors in each case and may approve an 31 additional increase or decrease the attorney's fee, not to 49 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 exceed $1,750 per accident based on a reasonable hourly rate, 2 if the judge of compensation claims expressly finds that the 3 attorney's fee, based on benefits secured, fails to fairly 4 compensate the attorney and, in her or his judgment, the 5 circumstances of the particular case warrant such action. In 6 proceedings under subsection (3)(c) of this section, the judge 7 of compensation claims may approve an additional attorney's 8 fee not to exceed $5,000, based on a reasonable hourly rate, 9 if the judge of compensation claims expressly finds that the 10 attorney's fee, based on benefits secured, fails to fairly 11 compensate the attorney and the circumstances of the 12 particular case warrant such action. 13 14 The judge of compensation claims shall not approve a 15 compensation order, a joint stipulation for lump-sum 16 settlement, a stipulation or agreement between a claimant and 17 his or her attorney, or any other agreement related to 18 benefits under this chapter that provides for an attorney's 19 fee in excess of the amount permitted by this section.: 20 (a) The time and labor required, the novelty and 21 difficulty of the questions involved, and the skill requisite 22 to perform the legal service properly. 23 (b) The fee customarily charged in the locality for 24 similar legal services. 25 (c) The amount involved in the controversy and the 26 benefits resulting to the claimant. 27 (d) The time limitation imposed by the claimant or the 28 circumstances. 29 (e) The experience, reputation, and ability of the 30 lawyer or lawyers performing services. 31 (f) The contingency or certainty of a fee. 50 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 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 petition claim for medical benefits only, if the claimant has 11 not filed 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 response to petition notice of denial with the Office of the 16 Judges of Compensation Claims division and the injured person 17 has employed an attorney in the successful prosecution of the 18 claim; or 19 (c) In a proceeding in which a carrier or employer 20 denies that an injury occurred for which compensation benefits 21 are payable, and the claimant prevails on the issue of 22 compensability; or 23 (d) In cases where the claimant successfully prevails 24 in proceedings filed under s. 440.24 or s. 440.28. 25 26 Regardless of the date benefits were initially requested, 27 attorney's fees shall not attach under this subsection until 28 30 days from the date the carrier or employer, if 29 self-insured, receives the petition. In applying the factors 30 set forth in subsection (1) to cases arising under paragraphs 31 (a), (b), (c), and (d), the judge of compensation claims must 51 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 only consider only such benefits and the time reasonably spent 2 in obtaining them as were secured for the claimant within the 3 scope of paragraphs (a), (b), (c), and (d). 4 Section 18. Section 440.345, Florida Statutes, is 5 amended to read: 6 440.345 Reporting of attorney's fees.--All fees paid 7 to attorneys for services rendered under this chapter shall be 8 reported to the Office of the Judges of Compensation Claims 9 division as the Office of the Judges of Compensation Claims 10 division requires by rule. The Office of the Judges of 11 Compensation Claims division shall annually summarize such 12 data in a report to the President of the Senate, the Speaker 13 of the House of Representatives, and the Governor Workers' 14 Compensation Oversight Board. 15 Section 19. Subsection (8) is added to section 440.39, 16 Florida Statutes, to read: 17 440.39 Compensation for injuries when third persons 18 are liable.-- 19 (8) This section does not impose on the carrier a duty 20 to preserve evidence pertaining to the industrial accident or 21 to injuries arising therefrom. 22 Section 20. Section 627.0915, Florida Statutes, is 23 amended to read: 24 627.0915 Rate filings; workers' compensation, 25 drug-free workplace, and safe employers.--The Department of 26 Insurance shall approve rating plans for workers' compensation 27 insurance that give specific identifiable consideration in the 28 setting of rates to employers that either implement a 29 drug-free workplace program pursuant to rules adopted by the 30 Division of Workers' Compensation of the Department of Labor 31 and Employment Security or implement a safety program pursuant 52 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 to provisions of the rating plan approved by the Division of 2 Safety pursuant to rules adopted by the Division of Safety of 3 the Department of Labor and Employment Security or implement 4 both a drug-free workplace program and a safety program. The 5 Division of Safety may by rule require that the client of a 6 help supply services company comply with the essential 7 requirements of a workplace safety program as a condition for 8 receiving a premium credit. The plans must take effect January 9 1, 1994, must be actuarially sound, and must state the savings 10 anticipated to result from such drug-testing and safety 11 programs. 12 Section 21. The amendments to sections 440.02 and 13 440.15, Florida Statutes, in this act shall not be construed 14 to affect any determination of disability under section 15 112.18, section 112.181, or section 112.19, Florida Statutes. 16 Section 22. If any provision of this act or its 17 application to any person or circumstance is held invalid, the 18 invalidity does not affect other provisions or applications of 19 the act which can be given effect without the invalid 20 provision or application, and to this end the provisions of 21 this act are declared severable. 22 Section 23. Amendments to s. 440.20(11)(d) contained 23 in this act shall supersede any other legislation amending s. 24 440.20(11)(d), regardless of whether or not any conflict 25 exists between the amendments contained in this act or similar 26 legislation and any other legislation. 27 Section 24. Subsection (3) of section 440.45, Florida 28 Statutes, is repealed. 29 Section 25. Effective October 1, 2001, section 30 440.4416, Florida Statutes, is repealed. 31 Section 26. Except as otherwise expressly provided in 53 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 this act, this act shall take effect January 1, 2002. 2 3 4 ================ T I T L E A M E N D M E N T =============== 5 And the title is amended as follows: 6 On page , 7 remove from the title of the bill: The entire title 8 9 and insert in lieu thereof: 10 A bill to be entitled 11 An act relating to workers' compensation; 12 amending s. 440.02, F.S.; revising definitions 13 of terms used in chapter 440, F.S.; amending s. 14 440.05, F.S.; revising exemptions from the 15 requirement for employers to obtain workers' 16 compensation coverage; specifying who may be 17 exempt and the conditions for an exemption; 18 specifying the effect of an exemption; 19 requiring businesses, sole proprietors, and 20 partners to maintain certain records; amending 21 s. 440.09, F.S.; requiring compensation for 22 accidental compensable injuries; requiring 23 partnerships, corporations, or sole proprietors 24 in the construction industry to maintain 25 workers' compensation insurance; creating s. 26 440.1025, F.S.; providing for consideration of 27 a public employer workplace safety program in 28 rate-setting; amending s. 440.107, F.S.; 29 authorizing the Division of Workers' 30 Compensation to issue stop-work orders in 31 certain circumstances; amending s. 440.11, 54 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 F.S.; revising employer liability; amending s. 2 440.13, F.S.; specifying the value of 3 nonprofessional attendant care provided by a 4 family member that is reimbursable; requiring 5 the carrier to give the employee the 6 opportunity to change physicians under certain 7 circumstances and limitations; revising the 8 effect of an independent medical examination; 9 limiting the admissibility of certain medical 10 opinions; revising the limitation on medical 11 fees; amending s. 440.134, F.S.; revising the 12 definitions applied to workers' compensation 13 managed care arrangements; eliminating 14 provisions mandating the use of such 15 arrangements; revising the procedures governing 16 grievances related to such arrangements; 17 amending s. 440.14, F.S.; revising the 18 computation of the average weekly wage of an 19 employee for the purposes of determining 20 benefits; amending s. 440.15, F.S.; revising 21 the criteria for permanent total disability; 22 revising the compensation rate for impairment 23 income benefits; amending s. 440.185, F.S.; 24 specifying the information that must be 25 included in a report of injury; amending s. 26 440.191, F.S.; requiring the Employee 27 Assistance and Ombudsman Office to initiate 28 contact with an injured employee to discuss 29 rights and responsibilities; revising other 30 duties of the office; amending s. 440.192, 31 F.S.; revising the procedures for resolving 55 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 benefit disputes and filing petitions for 2 benefits; specifying the information that must 3 be included in a petition for benefits; 4 amending s. 440.20, F.S.; specifying time for 5 payment of compensation; prescribing the 6 criteria for determining when a lump-sum 7 settlement may be entered; specifying the 8 effect of a lump-sum settlement; amending s. 9 440.25, F.S.; revising the procedures governing 10 mediation and the hearing of claims; amending 11 s. 440.29, F.S.; requiring opinions of 12 independent medical examiners to be received 13 into evidence under certain conditions; 14 amending s. 440.34, F.S.; revising the limit on 15 the amount of attorney's fees that may be 16 approved by a judge of compensation claims and 17 eliminating factors that the judge must 18 consider; applying such limits to any agreement 19 related to benefits under chapter 440, F.S.; 20 amending s. 440.345, F.S.; requiring the 21 reporting of attorney's fees to the Office of 22 the Judges of Compensation Claims and requiring 23 the Office of the Judges of Compensation Claims 24 to report such data to the Legislature and 25 Governor; amending s. 440.39, F.S.; providing 26 that the section does not impose a duty on the 27 employer to preserve evidence; amending s. 28 627.0915, F.S.; providing for a safety program 29 discount; providing that determinations under 30 ss. 112.18, 112.181, and 112.19, F.S., are not 31 affected; providing for applicability of the 56 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565
HOUSE AMENDMENT Bill No. CS/HB 1927, 2nd Eng. Amendment No. 1 (for drafter's use only) 1 act; providing for portions of this act to 2 supersede other provisions; repealing s. 3 440.4416, F.S., which creates the Workers' 4 Compensation Oversight Board; repealing s. 5 440.45(3), F.S.; eliminating the requirement 6 that the Chief Judge select judges to rotate as 7 docketing judges; providing for severability; 8 providing effective dates. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 57 File original & 9 copies 05/04/01 hin0002 06:12 pm 01927-0063-024565