Senate Bill sb0108er

CODING: Words stricken are deletions; words underlined are additions.


    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1

  2         An act relating to workers' compensation;

  3         amending s. 440.091, F.S.; specifying

  4         circumstances under which firefighters,

  5         emergency medical technicians, and paramedics

  6         are considered to be acting within the scope of

  7         their employment so as to qualify for workers'

  8         compensation benefits; providing a declaration

  9         of important state interest; amending s.

10         112.18, F.S.; expanding the provisions of law

11         with respect to disability in the line of duty

12         to include all law enforcement officers and

13         certain correctional officers; providing a

14         finding of important state interest; amending

15         s. 440.02, F.S.; redefining the terms

16         "employee" and "independent contractor";

17         prohibiting exemptions from coverage for

18         commercial construction job sites; defining the

19         terms "commercial building" and "residential

20         building"; amending s. 440.05, F.S.; requiring

21         employers to maintain business records

22         specified by rules of the Division of Workers'

23         Compensation, relative to exemptions from

24         coverage; revising requirements for election of

25         exemptions for coverage; amending s. 440.10,

26         F.S.; providing penalties for employers who

27         fail to secure compensation; amending s.

28         440.107, F.S.; requiring and authorizing the

29         division to issue stop-work orders and to

30         impose certain penalties against employers who

31         fail to secure compensation; requiring the


                                  1

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         division to notify the Department of Business

  2         and Professional Regulation; amending s.

  3         440.13, F.S.; providing for responsibilities of

  4         the three-member panel; requiring provision of

  5         data and support services by the division;

  6         revising the limitation on medical fees;

  7         providing for discontinuance of medical care

  8         under a managed care plan regardless of the

  9         date of an accident; amending s. 440.191, F.S.;

10         revising duties of the Employee Assistance and

11         Ombudsman Office; removing a requirement that

12         an employee exhaust certain dispute-resolution

13         procedures before filing a petition requesting

14         benefits; amending s. 440.25, F.S.; revising

15         procedures for mediation and hearings;

16         extending the time for ordering and holding

17         mediation conferences; providing requirements

18         for granting a continuance; providing for

19         mediation conducted by mediators other than

20         from the Office of the Judges of Compensation

21         Claims; requiring that the parties complete

22         pretrial stipulations before concluding

23         mediation; extending the time for holding final

24         hearings; providing for waiver of any benefit

25         not raised at the final hearing; providing for

26         an expedited determination of pay; requiring

27         that certain claims be resolved through an

28         expedited process; providing for dismissal for

29         lack of prosecution; limiting the payment of

30         interest and the attachment of attorney's fees;

31         amending s. 440.34, F.S.; revising provisions


                                  2

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         governing the award of claimant's attorney's

  2         fees; limiting the attachment of claimant's

  3         attorney's fees; amending s. 440.381, F.S.;

  4         requiring that the application for workers'

  5         compensation coverage contain a sworn statement

  6         by the agent; providing a penalty for carriers

  7         that fail to comply with audit requirements;

  8         revising requirements for audits; amending s.

  9         440.40, F.S.; requiring employers to post a

10         notice related to the anti-fraud reward

11         program; amending s. 440.45, F.S., relating to

12         the Office of the Judges of Compensation

13         Claims; clarifying the responsibilities of the

14         director of the Division of Administrative

15         Hearings as agency head of the Office of the

16         Judges of Compensation Claims; amending ss.

17         489.114 and 489.510, F.S.; revising provisions

18         governing the verification by the division of

19         coverage of persons engaged in the business of

20         contracting; specifying an administrative fine

21         for contractors who are in noncompliance with

22         chapter 440, F.S., to be paid to the Department

23         of Business and Professional Regulation;

24         amending s. 626.9892, F.S.; revising the

25         criteria for the anti-fraud program; requiring

26         the Department of Insurance to conduct a study

27         related to workers' compensation for persons

28         engaged in the construction industry; providing

29         an effective date.

30

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


                                  3

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         Section 1.  Section 440.091, Florida Statutes, is

  2  amended to read:

  3         440.091  Law enforcement officer, firefighter,

  4  emergency medical technician, or paramedic; when acting within

  5  the course of employment.--

  6         (1)  If an employee:

  7         (a)(1)  Is elected, appointed, or employed full time by

  8  a municipality, the state, or any political subdivision and is

  9  vested with authority to bear arms and make arrests and the

10  employee's primary responsibility is the prevention or

11  detection of crime or the enforcement of the penal, criminal,

12  traffic, or highway laws of the state;

13         (b)(2)  Was discharging that primary responsibility

14  within the state in a place and under circumstances reasonably

15  consistent with that primary responsibility; and

16         (c)(3)  Was not engaged in services for which he or she

17  was paid by a private employer, and the employee and his or

18  her public employer had no agreement providing for workers'

19  compensation coverage for that private employment;

20

21  the employee is considered shall be deemed to have been acting

22  within the course of employment.  The term "employee" as used

23  in this subsection section includes all certified supervisory

24  and command personnel whose duties include, in whole or in

25  part, responsibilities for the supervision, training,

26  guidance, and management of full-time law enforcement

27  officers, part-time law enforcement officers, or auxiliary law

28  enforcement officers but does not include support personnel

29  employed by the employing agency.

30         (2)  If a firefighter as defined by s. 112.191(1)(b) is

31  engaged in extinguishing a fire, or protecting and saving life


                                  4

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  or property due to a fire in this state in an emergency, and

  2  such activities would be considered to be within the course of

  3  his or her employment as a firefighter and covered by the

  4  employer's workers' compensation coverage except for the fact

  5  that the firefighter was off duty or that the location of the

  6  fire was outside the employer's jurisdiction or area of

  7  responsibility, such activities are considered to be within

  8  the course of employment. This subsection does not apply if

  9  the firefighter is performing activities for which he or she

10  is paid by another employer or contractor.

11         (3)  If an emergency medical technician or paramedic is

12  appointed or employed full time by a municipality, the state,

13  or any political subdivision, is certified under chapter 401,

14  is providing basic life support or advanced life support

15  services, as defined in s. 401.23, in an emergency situation

16  in this state, and such activities would be considered to be

17  within the course of his or her employment as an emergency

18  medical technician or paramedic and covered by the employer's

19  workers' compensation coverage except for the fact that the

20  location of the emergency was outside of the employer's

21  jurisdiction or area of responsibility, such activities are

22  considered to be within the course of employment. The

23  provisions of this subsection do not apply if the emergency

24  medical technician or paramedic is performing activities for

25  which he or she is paid by another employer or contractor.

26         Section 2.  It is declared by the Legislature that

27  firefighters perform state and municipal functions, that it is

28  their duty to protect life and property at their own risk and

29  peril, and that their activities are vital to the public

30  safety. Therefore, the Legislature declares that it fulfills

31  an important state interest to provide workers' compensation


                                  5

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  coverage to firefighters while engaged in extinguishing a

  2  fire, or protecting and saving life or property due to a fire

  3  in this state while off duty or engaging in such activities at

  4  a fire located outside the employer's jurisdiction or area of

  5  responsibility. It is further declared by the Legislature that

  6  emergency medical technicians and paramedics perform municipal

  7  and state functions, that it is their duty to protect and

  8  preserve life at their own risk and peril, and that their

  9  activities are vital to the public health, safety, and

10  welfare.  Therefore, the Legislature declares that it fulfills

11  an important state interest to provide workers' compensation

12  coverage to emergency medical technicians and paramedics while

13  engaged in basic life support and advanced life support

14  services due to an emergency in this state that is outside of

15  their employer's jurisdiction or area of responsibility.

16  Pursuant to Section 18, Article VII of the State Constitution,

17  the Legislature determines and declares that the provisions of

18  this act fulfill an important state interest.

19         Section 3.  Section 112.18, Florida Statutes, is

20  amended to read:

21         112.18  Firefighters and state law enforcement

22  officers; special provisions relative to disability.--

23         (1)  Any condition or impairment of health of any

24  Florida state, municipal, county, port authority, special tax

25  district, or fire control district firefighter or any state

26  law enforcement officer or correctional officer as defined in

27  s. 943.10(1), (2), or (3) caused by tuberculosis, heart

28  disease, or hypertension resulting in total or partial

29  disability or death shall be presumed to have been accidental

30  and to have been suffered in the line of duty unless the

31  contrary be shown by competent evidence. However, any such


                                  6

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  firefighter or state law enforcement officer shall have

  2  successfully passed a physical examination upon entering into

  3  any such service as a firefighter or state law enforcement

  4  officer, which examination failed to reveal any evidence of

  5  any such condition.  Such presumption shall not apply to

  6  benefits payable under or granted in a policy of life

  7  insurance or disability insurance, unless the insurer and

  8  insured have negotiated for such additional benefits to be

  9  included in the policy contract.

10         (2)  This section shall be construed to authorize the

11  above governmental entities to negotiate policy contracts for

12  life and disability insurance to include accidental death

13  benefits or double indemnity coverage which shall include the

14  presumption that any condition or impairment of health of any

15  firefighter, law enforcement officer, or correctional officer

16  caused by tuberculosis, heart disease, or hypertension

17  resulting in total or partial disability or death was

18  accidental and suffered in the line of duty, unless the

19  contrary be shown by competent evidence.

20         Section 4.  The Legislature finds that a proper and

21  legitimate state purpose is served when law enforcement

22  officers, correctional officers, and correctional probation

23  officers are included in the class that benefits from the

24  presumption that tuberculosis, heart disease, or hypertension

25  resulting in total or partial disability or death is

26  accidental and suffered in the line of duty unless the

27  contrary be shown by competent evidence. Therefore, the

28  Legislature determines and declares that this act fulfills an

29  important state interest.

30

31


                                  7

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         Section 5.  Paragraphs (b), (c), and (d) of subsection

  2  (14) of section 440.02, Florida Statutes, are amended, and

  3  subsections (40) and (41) are added to that section, to read:

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

  5  the context clearly requires otherwise, the following terms

  6  shall have the following meanings:

  7         (14)

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

  9  of a corporation and who performs services for remuneration

10  for such corporation within this state, whether or not such

11  services are continuous.

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

13  from this chapter by filing written notice of the election

14  with the division as provided in s. 440.05.

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

16  engaged in the construction industry, no more than three

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

18  written notice of the election with the division as provided

19  in s. 440.05. However, any exemption obtained by a corporate

20  officer of a corporation actively engaged in the construction

21  industry  is not applicable with respect to any commercial

22  building project estimated to be valued at $250,000 or

23  greater.

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

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

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

27

28  Services are presumed to have been rendered to the corporation

29  if the officer is compensated by other than dividends upon

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

31


                                  8

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         (c)1.  "Employee" includes a sole proprietor or a

  2  partner who devotes full time to the proprietorship or

  3  partnership and, except as provided in this paragraph, elects

  4  to be included in the definition of employee by filing notice

  5  thereof as provided in s. 440.05. Partners or sole proprietors

  6  actively engaged in the construction industry are considered

  7  employees unless they elect to be excluded from the definition

  8  of employee by filing written notice of the election with the

  9  division as provided in s. 440.05. However, no more than three

10  partners in a partnership that is actively engaged in the

11  construction industry may elect to be excluded. A sole

12  proprietor or partner who is actively engaged in the

13  construction industry and who elects to be exempt from this

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

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

16  purposes of this chapter, an independent contractor is an

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

18  forth in subparagraph (d)1.

19         2.  Notwithstanding the provisions of subparagraph 1.,

20  the term "employee" includes a sole proprietor or partner

21  actively engaged in the construction industry with respect to

22  any commercial building project estimated to be valued at

23  $250,000 or greater. Any exemption obtained is not applicable,

24  with respect to work performed at such a commercial building

25  project.

26         (d)  "Employee" does not include:

27         1.  An independent contractor, if:

28         a.  The independent contractor maintains a separate

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

30  materials, or similar accommodations;

31


                                  9

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         b.  The independent contractor holds or has applied for

  2  a federal employer identification number, unless the

  3  independent contractor is a sole proprietor who is not

  4  required to obtain a federal employer identification number

  5  under state or federal requirements;

  6         c.  The independent contractor performs or agrees to

  7  perform specific services or work for specific amounts of

  8  money and controls the means of performing the services or

  9  work;

10         d.  The independent contractor incurs the principal

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

12  performs or agrees to perform;

13         e.  The independent contractor is responsible for the

14  satisfactory completion of work or services that he or she

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

16  for a failure to complete the work or services;

17         f.  The independent contractor receives compensation

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

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

20         g.  The independent contractor may realize a profit or

21  suffer a loss in connection with performing work or services;

22         h.  The independent contractor has continuing or

23  recurring business liabilities or obligations; and

24         i.  The success or failure of the independent

25  contractor's business depends on the relationship of business

26  receipts to expenditures.

27

28  However, the determination as to whether an individual

29  included in the Standard Industrial Classification Manual of

30  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

31  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,


                                  10

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  2448, or 2449, or a newspaper delivery person, is an

  2  independent contractor is governed not by the criteria in this

  3  paragraph but by common-law principles, giving due

  4  consideration to the business activity of the individual.

  5  Notwithstanding the provisions of this paragraph or any other

  6  provision of this chapter, with respect to any commercial

  7  building project estimated to be valued at $250,000 or

  8  greater, a person who is actively engaged in the construction

  9  industry is not an independent contractor and is either an

10  employer or an employee who may not be exempt from the

11  coverage requirements of this chapter.

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

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

14  of commission.

15         3.  Bands, orchestras, and musical and theatrical

16  performers, including disk jockeys, performing in licensed

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

18  evidencing an independent contractor relationship is entered

19  into before the commencement of such entertainment.

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

21  property under a written contract with a motor carrier which

22  evidences a relationship by which the owner-operator assumes

23  the responsibility of an employer for the performance of the

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

25  necessary motor vehicle equipment and all costs incidental to

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

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

28  owner-operator is paid a commission for transportation service

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

30  basis.

31


                                  11

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



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

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

  3  of the employer.

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

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

  6  A person who does not receive monetary remuneration for

  7  services is presumed to be a volunteer unless there is

  8  substantial evidence that a valuable consideration was

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

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

11         a.  Persons who serve in private nonprofit agencies and

12  who receive no compensation other than expenses in an amount

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

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

15  if such agency does not have salaried employees who receive

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

17  compensation other than expenses in an amount less than or

18  equivalent to the customary mileage and per diem paid to

19  salaried workers in the community as determined by the

20  division; and

21         b.  Volunteers participating in federal programs

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

23         7.  Any officer of a corporation who elects to be

24  exempt from this chapter.

25         8.  A sole proprietor or officer of a corporation who

26  actively engages in the construction industry, and a partner

27  in a partnership that is actively engaged in the construction

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

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

30  employee for any reason until the notice of revocation of

31  election filed pursuant to s. 440.05 is effective.


                                  12

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



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

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

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

  4  into prior to the commencement of such activity which

  5  evidences that an employee/employer relationship does not

  6  exist.

  7         10.  A taxicab, limousine, or other passenger

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

  9  a written agreement with a company which provides any

10  dispatch, marketing, insurance, communications, or other

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

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

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

14  revenues.

15         11.  A person who performs services as a sports

16  official for an entity sponsoring an interscholastic sports

17  event or for a public entity or private, nonprofit

18  organization that sponsors an amateur sports event.  For

19  purposes of this subparagraph, such a person is an independent

20  contractor. For purposes of this subparagraph, the term

21  "sports official" means any person who is a neutral

22  participant in a sports event, including, but not limited to,

23  umpires, referees, judges, linespersons, scorekeepers, or

24  timekeepers. This subparagraph does not apply to any person

25  employed by a district school board who serves as a sports

26  official as required by the employing school board or who

27  serves as a sports official as part of his or her

28  responsibilities during normal school hours.

29         (40)  "Commercial building" means any building or

30  structure intended for commercial or industrial use, or any

31  building or structure intended for multifamily use of more


                                  13

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  than four dwelling units, as well as any accessory use

  2  structures constructed in conjunction with the principle

  3  structure. The term, "commercial building," does not include

  4  the conversion of any existing residential building to a

  5  commercial building.

  6         (41)  "Residential building" means any building or

  7  structure intended for residential use containing four or

  8  fewer dwelling units and any structures intended as an

  9  accessory use to the residential structure.

10         Section 6.  Subsections (10), (11), (12), and (13) are

11  added to section 440.05, Florida Statutes, to read:

12         440.05  Election of exemption; revocation of election;

13  notice; certification.--

14         (10)  Each sole proprietor, partner, or officer of a

15  corporation who is actively engaged in the construction

16  industry and who elects an exemption from this chapter shall

17  maintain business records as specified by the division by

18  rule, which rules must include the provision that any

19  corporation with exempt officers and any partnership actively

20  engaged in the construction industry with exempt partners must

21  maintain written statements of those exempted persons

22  affirmatively acknowledging each such individual's exempt

23  status.

24         (11)  Any sole proprietor or partner actively engaged

25  in the construction industry claiming an exemption under this

26  section shall maintain a copy of his or her federal income tax

27  records for each of the immediately previous 3 years in which

28  he or she claims an exemption. Such federal income tax records

29  must include a complete copy of the following for each year in

30  which an exemption is claimed:

31


                                  14

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         (a)  For sole proprietors, a copy of Federal Income Tax

  2  Form 1040 and its accompanying Schedule C;

  3         (b)  For partners, a copy of the partner's Federal

  4  Income Tax Schedule K-1 (Form 1065) and Federal Income Tax

  5  Form 1040 and its accompanying Schedule E.

  6

  7  A sole proprietor or partner shall produce, upon request by

  8  the division, a copy of those documents together with a

  9  statement by the sole proprietor or partner that the tax

10  records provided are true and accurate copies of what the sole

11  proprietor or partner has filed with the federal Internal

12  Revenue Service. The statement must be signed under oath by

13  the sole proprietor or partner and must be notarized. The

14  division shall issue a stop-work order under s. 440.107(5) to

15  any sole proprietor or partner who fails or refuses to produce

16  a copy of the tax records and affidavit required under this

17  paragraph to the division within 3 business days after the

18  request is made.

19         (12)  For those sole proprietors or partners that have

20  not been in business long enough to provide the information

21  required of an established business, the division shall

22  require such sole proprietor or partner to provide copies of

23  the most recently filed Federal Income Tax Form 1040. The

24  division shall establish by rule such other criteria to show

25  that the sole proprietor or partner intends to engage in a

26  legitimate enterprise within the construction industry and is

27  not otherwise attempting to evade the requirements of this

28  section. The division shall establish by rule the form and

29  format of financial information required to be submitted by

30  such employers.

31


                                  15

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         (13)  Any corporate officer claiming an exemption under

  2  this section must be listed on the records of this state's

  3  Secretary of State, Division of Corporations, as a corporate

  4  officer. If the person who claims an exemption as a corporate

  5  officer is not so listed on the records of the Secretary of

  6  State, the individual must provide to the division, upon

  7  request by the division, a notarized affidavit stating that

  8  the individual is a bona fide officer of the corporation and

  9  stating the date his or her appointment or election as a

10  corporate officer became or will become effective. The

11  statement must be signed under oath by both the officer and

12  the president or chief operating officer of the corporation

13  and must be notarized. The division shall issue a stop-work

14  order under s. 440.107(1) to any corporation who employs a

15  person who claims to be exempt as a corporate officer but who

16  fails or refuses to produce the documents required under this

17  subsection to the division within 3 business days after the

18  request is made.

19         Section 7.  Subsection (1) of section 440.10, Florida

20  Statutes, is amended to read:

21         440.10  Liability for compensation.--

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

23  this chapter, including any brought within the chapter by

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

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

26  physician, surgeon, or pharmacist providing services under the

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

28  440.13, 440.15, and 440.16. Any contractor or subcontractor

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

30  shall secure and maintain compensation for his or her

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


                                  16

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



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

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

  3  all of the employees of such contractor and subcontractor or

  4  subcontractors engaged on such contract work shall be deemed

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

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

  7  payment of compensation to all such employees, except to

  8  employees of a subcontractor who has secured such payment.

  9         (c)  A contractor may require a subcontractor to

10  provide evidence of workers' compensation insurance or a copy

11  of his or her certificate of election. A subcontractor

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

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

14  certificate of election to the contractor.

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

16  of compensation to the employees of a subcontractor who has

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

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

19  recover from the subcontractor all benefits paid or payable

20  plus interest unless the contractor and subcontractor have

21  agreed in writing that the contractor will provide coverage.

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

23  for the payment of compensation to the employee of a

24  subcontractor who is actively engaged in the construction

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

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

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

28  or corporation all benefits paid or payable plus interest,

29  unless the contractor and the subcontractor have agreed in

30  writing that the contractor will provide coverage.

31


                                  17

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



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

  2  compensation to the employees of another subcontractor on such

  3  contract work and is not protected by the

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

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

  6  of another subcontractor.

  7         (f)  If an employer willfully fails to secure

  8  compensation as required by this chapter, the division may

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

10  each employee of that employer who is classified by the

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

12  division to not meet the criteria for an independent

13  contractor that are set forth in s. 440.02. The division shall

14  adopt rules to administer the provisions of this paragraph.

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

16  conclusively presumed to be an independent contractor if:

17         1.  The independent contractor provides the general

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

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

20         2.  The independent contractor provides the general

21  contractor with a valid certificate of workers' compensation

22  insurance or a valid certificate of exemption issued by the

23  division.

24

25  A sole proprietor, partner, or officer of a corporation who

26  elects exemption from this chapter by filing a certificate of

27  election under s. 440.05 may not recover benefits or

28  compensation under this chapter. An independent contractor who

29  provides the general contractor with both an affidavit stating

30  that he or she meets the requirements of s. 440.02(14)(d) and

31  a certificate of exemption is not an employee under s.


                                  18

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  440.02(14)(c) and may not recover benefits under this chapter.

  2  For purposes of determining the appropriate premium for

  3  workers' compensation coverage, carriers may not consider any

  4  person who meets the requirements of this paragraph to be an

  5  employee.

  6         Section 8.  Subsections (5) and (7) of section 440.107,

  7  Florida Statutes, are amended, and subsection (12) is added to

  8  that section to read:

  9         440.107  Division powers to enforce employer compliance

10  with coverage requirements.--

11         (5)  Whenever the division determines that an employer

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

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

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

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

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

17  employer, requiring the cessation of all business operations

18  at the place of employment or job site. If the division makes

19  such a determination, the division shall issue a stop-work

20  order within 72 hours. The order shall take effect upon the

21  date of service upon the employer, unless the employer

22  provides evidence satisfactory to the division of having

23  secured any necessary insurance or self-insurance and pays a

24  civil penalty to the division, to be deposited by the division

25  into the Workers' Compensation Administration Trust Fund, in

26  the amount of $100 per day for each day the employer was not

27  in compliance with this chapter.

28         (7)  In addition to any penalty, stop-work order, or

29  injunction, the division shall may assess against any

30  employer, who has failed to secure the payment of compensation

31


                                  19

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  as required by this chapter, a penalty in the following amount

  2  of:

  3         (a)  An amount equal to at least the amount that the

  4  employer would have paid or up to twice the amount the

  5  employer would have paid during periods it illegally failed to

  6  secure payment of compensation in the preceding 3-year period

  7  based on the employer's payroll during the preceding 3-year

  8  period; or

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

10

11  Any penalty assessed under this subsection is due within 30

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

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

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

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

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

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

18  of 1 percent per month. The division shall adopt rules to

19  administer this section.

20         (12)  If the division finds that an employer who is

21  certified or registered under part I or part II of chapter 489

22  and who is required to secure payment of the compensation

23  provided for by this chapter to his or her employees has

24  failed to do so, the division shall immediately notify the

25  Department of Business and Professional Regulation.

26         Section 9.  Subsection (12) and paragraph (b) of

27  subsection (14) of section 440.13, Florida Statutes, are

28  amended to read:

29         440.13  Medical services and supplies; penalty for

30  violations; limitations.--

31


                                  20

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         (12)  CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM

  2  REIMBURSEMENT ALLOWANCES.--

  3         (a)  A three-member panel is created, consisting of the

  4  Insurance Commissioner, or the Insurance Commissioner's

  5  designee, and two members to be appointed by the Governor,

  6  subject to confirmation by the Senate, one member who, on

  7  account of present or previous vocation, employment, or

  8  affiliation, shall be classified as a representative of

  9  employers, the other member who, on account of previous

10  vocation, employment, or affiliation, shall be classified as a

11  representative of employees. The panel shall determine

12  statewide schedules of maximum reimbursement allowances for

13  medically necessary treatment, care, and attendance provided

14  by physicians, hospitals, ambulatory surgical centers,

15  work-hardening programs, pain programs, and durable medical

16  equipment. The maximum reimbursement allowances for inpatient

17  hospital care shall be based on a schedule of per diem rates,

18  to be approved by the three-member panel no later than March

19  1, 1994, to be used in conjunction with a precertification

20  manual as determined by the division. All compensable charges

21  for hospital outpatient care shall be reimbursed at 75 percent

22  of usual and customary charges. Until the three-member panel

23  approves a schedule of per diem rates for inpatient hospital

24  care and it becomes effective, all compensable charges for

25  hospital inpatient care must be reimbursed at 75 percent of

26  their usual and customary charges. Annually, the three-member

27  panel shall adopt schedules of maximum reimbursement

28  allowances for physicians, hospital inpatient care, hospital

29  outpatient care, ambulatory surgical centers, work-hardening

30  programs, and pain programs. However, the maximum percentage

31  of increase in the individual reimbursement allowance may not


                                  21

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  exceed the percentage of increase in the Consumer Price Index

  2  for the previous year. An individual physician, hospital,

  3  ambulatory surgical center, pain program, or work-hardening

  4  program shall be reimbursed either the usual and customary

  5  charge for treatment, care, and attendance, the agreed-upon

  6  contract price, or the maximum reimbursement allowance in the

  7  appropriate schedule, whichever is less.

  8         (b)  As to reimbursement for a prescription medication,

  9  the reimbursement amount for a prescription shall be the

10  average wholesale price times 1.2 plus $4.18 for the

11  dispensing fee, except where the carrier has contracted for a

12  lower amount. Fees for pharmaceuticals and pharmaceutical

13  services shall be reimbursable at the applicable fee schedule

14  amount. Where the employer or carrier has contracted for such

15  services and the employee elects to obtain them through a

16  provider not a party to the contract, the carrier shall

17  reimburse at the schedule, negotiated, or contract price,

18  whichever is lower.

19         (c)  Reimbursement for all fees and other charges for

20  such treatment, care, and attendance, including treatment,

21  care, and attendance provided by any hospital or other health

22  care provider, ambulatory surgical center, work-hardening

23  program, or pain program, must not exceed the amounts provided

24  by the uniform schedule of maximum reimbursement allowances as

25  determined by the panel or as otherwise provided in this

26  section. This subsection also applies to independent medical

27  examinations performed by health care providers under this

28  chapter. Until the three-member panel approves a uniform

29  schedule of maximum reimbursement allowances and it becomes

30  effective, all compensable charges for treatment, care, and

31  attendance provided by physicians, ambulatory surgical


                                  22

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  centers, work-hardening programs, or pain programs shall be

  2  reimbursed at the lowest maximum reimbursement allowance

  3  across all 1992 schedules of maximum reimbursement allowances

  4  for the services provided regardless of the place of service.

  5  In determining the uniform schedule, the panel shall first

  6  approve the data which it finds representative of prevailing

  7  charges in the state for similar treatment, care, and

  8  attendance of injured persons. Each health care provider,

  9  health care facility, ambulatory surgical center,

10  work-hardening program, or pain program receiving workers'

11  compensation payments shall maintain records verifying their

12  usual charges. In establishing the uniform schedule of maximum

13  reimbursement allowances, the panel must consider:

14         1.  The levels of reimbursement for similar treatment,

15  care, and attendance made by other health care programs or

16  third-party providers;

17         2.  The impact upon cost to employers for providing a

18  level of reimbursement for treatment, care, and attendance

19  which will ensure the availability of treatment, care, and

20  attendance required by injured workers;

21         3.  The financial impact of the reimbursement

22  allowances upon health care providers and health care

23  facilities, including trauma centers as defined in s.

24  395.4001, and its effect upon their ability to make available

25  to injured workers such medically necessary remedial

26  treatment, care, and attendance. The uniform schedule of

27  maximum reimbursement allowances must be reasonable, must

28  promote health care cost containment and efficiency with

29  respect to the workers' compensation health care delivery

30  system, and must be sufficient to ensure availability of such

31


                                  23

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  medically necessary remedial treatment, care, and attendance

  2  to injured workers; and

  3         4.  The most recent average maximum allowable rate of

  4  increase for hospitals determined by the Health Care Board

  5  under chapter 408.

  6         (d)  In addition to establishing the uniform schedule

  7  of maximum reimbursement allowances, the panel shall:

  8         1.  Take testimony, receive records, and collect data

  9  to evaluate the adequacy of the workers' compensation fee

10  schedule, nationally recognized fee schedules and alternative

11  methods of reimbursement to certified health care providers

12  and health care facilities for inpatient and outpatient

13  treatment and care.

14         2.  Survey certified health care providers and health

15  care facilities to determine the availability and

16  accessibility of workers' compensation health care delivery

17  systems for injured workers.

18         3.  Survey carriers to determine the estimated impact

19  on carrier costs and workers' compensation premium rates by

20  implementing changes to the carrier reimbursement schedule or

21  implementing alternative reimbursement methods.

22         4.  Submit recommendations on or before January 1,

23  2003, and biennially thereafter, to the President of the

24  Senate and the Speaker of the House of Representatives on

25  methods to improve the workers' compensation health care

26  delivery system.

27

28  The division shall provide data to the panel, including but

29  not limited to utilization trends in the workers' compensation

30  health care delivery system. The division shall provide the

31  panel with an annual report regarding the resolution of


                                  24

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  medical reimbursement disputes and any actions pursuant to s.

  2  440.13(8). The division shall provide administrative support

  3  and service to the panel to the extent requested by the panel.

  4         (14)  PAYMENT OF MEDICAL FEES.--

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

  6  attendance, except for independent medical examinations, may

  7  not exceed the applicable fee schedules adopted under this

  8  chapter.

  9         Section 10.  Paragraph (a) of subsection (2) of section

10  440.134, Florida Statutes, is amended to read:

11         440.134  Workers' compensation managed care

12  arrangement.--

13         (2)(a)  The self-insured employer or carrier may,

14  subject to the terms and limitations specified elsewhere in

15  this section and chapter, furnish to the employee solely

16  through managed care arrangements such medically necessary

17  remedial treatment, care, and attendance for such period as

18  the nature of the injury or the process of recovery requires.

19  For any self-insured employer or carrier who elects to deliver

20  the medical benefits required by this chapter through a method

21  other than a workers' compensation managed care arrangement,

22  the discontinuance of the use of the workers' compensation

23  managed care arrangement shall be without regard to the date

24  of the accident, notwithstanding any other provision of law or

25  rule.

26         Section 11.  Section 440.191, Florida Statutes, is

27  amended to read:

28         440.191  Employee Assistance and Ombudsman Office.--

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

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

31  construed to permit injured employees and employers or the


                                  25

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  employer's carrier to resolve disagreements without undue

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

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

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

  5  carriers, service providers, health care providers, attorneys,

  6  employers, managed care arrangements, and employees, to

  7  attempt to resolve disagreements in good faith and to

  8  cooperate with the division's efforts to resolve disagreements

  9  between the parties. The division may by rule prescribe

10  definitions that are necessary for the effective

11  administration of this section.

12         (b)  An Employee Assistance and Ombudsman Office is

13  created within the Division of Workers' Compensation to inform

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

15  care providers, and managed care arrangements in fulfilling

16  their responsibilities under this chapter. The division may by

17  rule specify forms and procedures for administering requests

18  for assistance provided by this section.

19         (c)  The Employee Assistance and Ombudsman Office,

20  Division of Workers' Compensation, shall be a resource

21  available to all employees who participate in the workers'

22  compensation system and shall take all steps necessary to

23  educate and disseminate information to employees and

24  employers. Upon receiving a notice of injury or death, the

25  Employee Assistance and Ombudsman Office may initiate contact

26  with the injured employee or employee's representative to

27  discuss rights and responsibilities of the employee under this

28  chapter and the services available through the Employee

29  Assistance and Ombudsman Office.

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

31  any benefit under this chapter unless the employee has


                                  26

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  exhausted the procedures for informal dispute resolution under

  2  this section.

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

  4  fails to provide benefits to which the employee believes she

  5  or he is entitled, the employee shall contact the office to

  6  request assistance in resolving the dispute. The office may

  7  review a petition for benefits filed under s. 440.192 shall

  8  investigate the dispute and may shall attempt to facilitate an

  9  agreement between the employee and the employer or carrier.

10  The employee, the employer, and the carrier shall cooperate

11  with the office and shall timely provide the office with any

12  documents or other information that it may require in

13  connection with its efforts under this section.

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

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

16  disputes quickly and in the most efficient manner possible.

17  Settlement agreements resulting from such conferences must be

18  submitted to the Office of the Judges of Compensation Claims

19  for approval.

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

21  may assign an ombudsman to assist the employee in resolving

22  the dispute. If the dispute is not resolved within 30 days

23  after the employee contacts the office, The ombudsman may

24  shall, at the employee's request, assist the employee in

25  drafting a petition for benefits and explain the procedures

26  for filing petitions. The division may by rule determine the

27  method used to calculate the 30-day period. The Employee

28  Assistance and Ombudsman Office may not represent employees

29  before the judges of compensation claims. An employer or

30  carrier may not pay any attorneys' fees on behalf of the

31  employee for services rendered or costs incurred in connection


                                  27

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  with this section, unless expressly authorized elsewhere in

  2  this chapter.

  3         Section 12.  Subsections (1), (3), and (4) of section

  4  440.25, Florida Statutes, are amended to read:

  5         440.25  Procedures for mediation and hearings.--

  6         (1)  Within 90 21 days after a petition for benefits is

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

  8  petition shall be held. Within 40 7 days after such petition

  9  is filed, the judge of compensation claims shall notify the

10  interested parties by order that a mediation conference

11  concerning such petition will be held unless the parties have

12  notified the Office of the Judges of Compensation Claims that

13  a mediation has been held. Such order must notice shall give

14  the date by which, time, and location of the mediation

15  conference must be held. Such order notice may be served

16  personally upon the interested parties or may be sent to the

17  interested parties by mail. The claimant or the adjuster of

18  the employer or carrier may, at the mediator's discretion,

19  attend the mediation conference by telephone or, if agreed to

20  by the parties, other electronic means. A continuance may be

21  granted if the requesting party demonstrates to the judge of

22  compensation claims that the reason for requesting the

23  continuance arises from circumstances beyond the party's

24  control. Any order granting a continuance must set forth the

25  date of the rescheduled mediation conference. A mediation

26  conference may not be used solely for the purpose of mediating

27  attorney's fees.

28         (3)(a)  Such mediation conference shall be conducted

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

30  evidence or procedure. Any information from the files,

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


                                  28

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



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

  2  mediation conference under this section obtained by any person

  3  performing mediation duties is privileged and confidential and

  4  may not be disclosed without the written consent of all

  5  parties to the conference. Any research or evaluation effort

  6  directed at assessing the mediation program activities or

  7  performance must protect the confidentiality of such

  8  information. Each party to a mediation conference has a

  9  privilege during and after the conference to refuse to

10  disclose and to prevent another from disclosing communications

11  made during the conference whether or not the contested issues

12  are successfully resolved. This subsection and paragraphs

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

14  the discovery or admissibility of any information that is

15  otherwise subject to discovery or that is admissible under

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

17  or statements made during a mediation conference or in

18  negotiations concerning the conference are inadmissible in any

19  proceeding under this chapter.

20         1.  Unless the parties conduct a private mediation

21  under subparagraph 2., mediation shall be conducted by a

22  mediator selected by the Director of the Division of

23  Administrative Hearings from among mediators shall select a

24  mediator. The mediator shall be employed on a full-time basis

25  by the Office of the Judges of Compensation Claims. A mediator

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

27  must complete a mediation training program approved by the

28  Director of the Division of Administrative Hearings. Adjunct

29  mediators may be employed by the Office of the Judges of

30  Compensation Claims on an as-needed basis and shall be

31  selected from a list prepared by the Director of the Division


                                  29

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  of Administrative Hearings. An adjunct mediator must be

  2  independent of all parties participating in the mediation

  3  conference. An adjunct mediator must be a member of The

  4  Florida Bar for at least 5 years and must complete a mediation

  5  training program approved by the Director of the Division of

  6  Administrative Hearings.  An adjunct mediator shall have

  7  access to the office, equipment, and supplies of the judge of

  8  compensation claims in each district.

  9         2.  With respect to any mediation occurring on or after

10  January 1, 2003, if the parties agree or if mediators are not

11  available under subparagraph 1. to conduct the required

12  mediation within the period specified in this section, the

13  parties shall hold a mediation conference at the carrier's

14  expense within the 90-day period set for mediation. The

15  mediation conference shall be conducted by a mediator

16  certified under s. 44.106. If the parties do not agree upon a

17  mediator within 10 days after the date of the order, the

18  claimant shall notify the judge in writing and the judge shall

19  appoint a mediator under this subparagraph within 7 days. In

20  the event both parties agree, the results of the mediation

21  conference shall be binding and neither party shall have a

22  right to appeal the results. In the event either party refuses

23  to agree to the results of the mediation conference, the

24  results of the mediation conference as well as the testimony,

25  witnesses, and evidence presented at the conference shall not

26  be admissible at any subsequent proceeding on the claim. The

27  mediator shall not be called in to testify or give deposition

28  to resolve any claim for any hearing before the judge of

29  compensation claims. The employer may be represented by an

30  attorney at the mediation conference if the employee is also

31  represented by an attorney at the mediation conference.


                                  30

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         (c)  The parties shall complete the pretrial

  2  stipulations before the conclusion of the mediation conference

  3  if the claims, except for attorney's fees and costs, have not

  4  been settled and if any claims in any filed petition remain

  5  unresolved. The judge of compensation claims may impose

  6  sanctions against a party or both parties for failing to

  7  complete the pretrial stipulations before the conclusion of

  8  the mediation conference.

  9         (4)(a)  If the parties fail to agree upon written

10  submission of pretrial stipulations at the mediation

11  conference, on the 10th day following commencement of

12  mediation, the questions in dispute have not been resolved,

13  the judge of compensation claims shall order hold a pretrial

14  hearing to occur within 14 days after the date of mediation

15  ordered by the judge of compensation claims. The judge of

16  compensation claims shall give the interested parties at least

17  7 days' advance notice of the pretrial hearing by mail. At the

18  pretrial hearing, the judge of compensation claims shall,

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

20  that allows the parties at least 60 30 days to conduct

21  discovery unless the parties consent to an earlier hearing

22  date.

23         (b)  The final hearing must be held and concluded

24  within 90 45 days after the mediation conference is held

25  pretrial hearing. Continuances may be granted only if the

26  requesting party demonstrates to the judge of compensation

27  claims that the reason for requesting the continuance arises

28  from circumstances beyond the party's control. The written

29  consent of the claimant must be obtained before any request

30  from a claimant's attorney is granted for an additional

31  continuance after the initial continuance has been granted.


                                  31

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  Any order granting a continuance must set forth the date and

  2  time of the rescheduled hearing. A continuance may be granted

  3  only if the requesting party demonstrates to the judge of

  4  compensation claims that the reason for requesting the

  5  continuance arises from circumstances beyond the control of

  6  the parties. The judge of compensation claims shall report any

  7  grant of two or more continuances to the Deputy Chief Judge.

  8         (c)  The judge of compensation claims shall give the

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

10  final hearing, served upon the interested parties by mail.

11         (d)  The final hearing shall be held within 210 days

12  after receipt of the petition for benefits in the county where

13  the injury occurred, if the injury occurred in this state,

14  unless otherwise agreed to between the parties and authorized

15  by the judge of compensation claims in the county where the

16  injury occurred. If the injury occurred outside without the

17  state and is one for which compensation is payable under this

18  chapter, then the final hearing above referred to may be held

19  in the county of the employer's residence or place of

20  business, or in any other county of the state that which will,

21  in the discretion of the Deputy Chief Judge, be the most

22  convenient for a hearing. The final hearing shall be conducted

23  by a judge of compensation claims, who shall, within 30 days

24  after final hearing or closure of the hearing record, unless

25  otherwise agreed by the parties, enter a final order on the

26  merits of the disputed issues. The judge of compensation

27  claims may enter an abbreviated final order in cases in which

28  compensability is not disputed. Either party may request

29  separate findings of fact and conclusions of law. At the final

30  such hearing, the claimant and employer may each present

31  evidence with in respect to the claims presented by the


                                  32

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  petition for benefits of such claim and may be represented by

  2  any attorney authorized in writing for such purpose. When

  3  there is a conflict in the medical evidence submitted at the

  4  hearing, the provisions of s. 440.13 shall apply. The report

  5  or testimony of the expert medical advisor shall be made a

  6  part of the record of the proceeding and shall be given the

  7  same consideration by the judge of compensation claims as is

  8  accorded other medical evidence submitted in the proceeding;

  9  and all costs incurred in connection with such examination and

10  testimony may be assessed as costs in the proceeding, subject

11  to the provisions of s. 440.13. No judge of compensation

12  claims may make a finding of a degree of permanent impairment

13  that is greater than the greatest permanent impairment rating

14  given the claimant by any examining or treating physician,

15  except upon stipulation of the parties. Any benefit due but

16  not raised at the final hearing which was ripe, due, or owing

17  at the time of the final hearing is waived.

18         (e)  The order making an award or rejecting the claim,

19  referred to in this chapter as a "compensation order," shall

20  set forth the findings of ultimate facts and the mandate; and

21  the order need not include any other reason or justification

22  for such mandate. The compensation order shall be filed in the

23  Office of the Judges of Compensation Claims at Tallahassee. A

24  copy of such compensation order shall be sent by mail to the

25  parties and attorneys of record at the last known address of

26  each, with the date of mailing noted thereon.

27         (f)  Each judge of compensation claims is required to

28  submit a special report to the Deputy Chief Judge in each

29  contested workers' compensation case in which the case is not

30  determined within 30 days of final hearing or closure of the

31  hearing record. Said form shall be provided by the director of


                                  33

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  the Division of Administrative Hearings and shall contain the

  2  names of the judge of compensation claims and of the attorneys

  3  involved and a brief explanation by the judge of compensation

  4  claims as to the reason for such a delay in issuing a final

  5  order.

  6         (g)  Notwithstanding any other provision of this

  7  section, the judge of compensation claims may require the

  8  appearance of the parties and counsel before her or him

  9  without written notice for an emergency conference where there

10  is a bona fide emergency involving the health, safety, or

11  welfare of an employee. An emergency conference under this

12  section may result in the entry of an order or the rendering

13  of an adjudication by the judge of compensation claims.

14         (h)  To expedite dispute resolution and to enhance the

15  self-executing features of the Workers' Compensation Law, the

16  Deputy Chief Judge shall make provision by rule or order for

17  the resolution of appropriate motions by judges of

18  compensation claims without oral hearing upon submission of

19  brief written statements in support and opposition, and for

20  expedited discovery and docketing. Unless the judge of

21  compensation claims, for good cause, orders a hearing under

22  paragraph (i), each claim in a petition relating to the

23  determination of pay under s. 440.14 shall be resolved under

24  this paragraph without oral hearing.

25         (i)  To further expedite dispute resolution and to

26  enhance the self-executing features of the system, those

27  petitions filed in accordance with s. 440.192 that involve a

28  claim for benefits of $5,000 or less shall, in the absence of

29  compelling evidence to the contrary, be presumed to be

30  appropriate for expedited resolution under this paragraph; and

31  any other claim filed in accordance with s. 440.192, upon the


                                  34

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  written agreement of both parties and application by either

  2  party, may similarly be resolved under this paragraph. A claim

  3  in a petition or $5,000 or less for medical benefits only or a

  4  petition for reimbursement for mileage for medical purposes

  5  shall, in the absence of compelling evidence to the contrary,

  6  be resolved through the expedited dispute-resolution process

  7  provided in this paragraph. For purposes of expedited

  8  resolution pursuant to this paragraph, the Deputy Chief Judge

  9  shall make provision by rule or order for expedited and

10  limited discovery and expedited docketing in such cases. At

11  least 15 days prior to hearing, the parties shall exchange and

12  file with the judge of compensation claims a pretrial outline

13  of all issues, defenses, and witnesses on a form adopted by

14  the Deputy Chief Judge; provided, in no event shall such

15  hearing be held without 15 days' written notice to all

16  parties. No pretrial hearing shall be held. The judge of

17  compensation claims shall limit all argument and presentation

18  of evidence at the hearing to a maximum of 30 minutes, and

19  such hearings shall not exceed 30 minutes in length. Neither

20  party shall be required to be represented by counsel. The

21  employer or carrier may be represented by an adjuster or other

22  qualified representative. The employer or carrier and any

23  witness may appear at such hearing by telephone. The rules of

24  evidence shall be liberally construed in favor of allowing

25  introduction of evidence.

26         (j)  A judge of compensation claims may, upon the

27  motion of a party or the judge's own motion, dismiss a

28  petition for lack of prosecution if a petition, response,

29  motion, order, request for hearing, or notice of deposition

30  has not been filed during the previous 12 months unless good

31


                                  35

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  cause is shown. A dismissal for lack of prosecution is without

  2  prejudice and does not require a hearing.

  3         (k)  A judge of compensation claims may not award

  4  interest on unpaid medical bills and the amount of such bills

  5  may not be used to calculate the amount of interest awarded.

  6  Regardless of the date benefits were initially requested,

  7  attorney's fees do not attach under this subsection until 30

  8  days after the date the carrier or self-insured employer

  9  receives the petition.

10         Section 13.  Subsection (3) of section 440.34, Florida

11  Statutes, is amended to read:

12         440.34  Attorney's fees; costs.--

13         (3)  If the claimant should prevail in any proceedings

14  before a judge of compensation claims or court, there shall be

15  taxed against the employer the reasonable costs of such

16  proceedings, not to include the attorney's fees of the

17  claimant. A claimant shall be responsible for the payment of

18  her or his own attorney's fees, except that a claimant shall

19  be entitled to recover a reasonable attorney's fee from a

20  carrier or employer:

21         (a)  Against whom she or he successfully asserts a

22  petition claim for medical benefits only, if the claimant has

23  not filed or is not entitled to file at such time a claim for

24  disability, permanent impairment, wage-loss, or death

25  benefits, arising out of the same accident; or

26         (b)  In any case in which the employer or carrier files

27  a response to petition denying benefits with the Office of the

28  Judges of Compensation Claims and the injured person has

29  employed an attorney in the successful prosecution of the

30  petition claim; or

31


                                  36

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1         (c)  In a proceeding in which a carrier or employer

  2  denies that an accident injury occurred for which compensation

  3  benefits are payable, and the claimant prevails on the issue

  4  of compensability; or

  5         (d)  In cases where the claimant successfully prevails

  6  in proceedings filed under s. 440.24 or s. 440.28.

  7

  8  Regardless of the date benefits were initially requested,

  9  attorney's fees shall not attach under this subsection until

10  30 days after the date the carrier or employer, if

11  self-insured, receives the petition.  In applying the factors

12  set forth in subsection (1) to cases arising under paragraphs

13  (a), (b), (c), and (d), the judge of compensation claims must

14  only consider only such benefits and the time reasonably spent

15  in obtaining them as were secured for the claimant within the

16  scope of paragraphs (a), (b), (c), and (d).

17         Section 14.  Subsections (2), (3), and (6) of section

18  440.381, Florida Statutes, are amended to read:

19         440.381  Application for coverage; reporting payroll;

20  payroll audit procedures; penalties.--

21         (2)  The application must contain a statement that the

22  filing of an application containing false, misleading, or

23  incomplete information with the purpose of avoiding or

24  reducing the amount of premiums for workers' compensation

25  coverage is a felony of the third degree, punishable as

26  provided in s. 775.082, s. 775.083, or s. 775.084. The

27  application must contain a sworn statement by the employer

28  attesting to the accuracy of the information submitted and

29  acknowledging the provisions of former s. 440.37(4). The

30  application must contain a sworn statement by the agent

31  attesting that the agent explained to the employer or officer


                                  37

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  the classification codes that are used for premium

  2  calculations.

  3         (3)  The Department of Insurance and the Department of

  4  Labor and Employment Security shall establish by rule minimum

  5  requirements for audits of payroll and classifications in

  6  order to ensure that the appropriate premium is charged for

  7  workers' compensation coverage. The rules shall ensure that

  8  audits performed by both carriers and employers are adequate

  9  to provide that all sources of payments to employees,

10  subcontractors, and independent contractors have been reviewed

11  and that the accuracy of classification of employees has been

12  verified. The rules shall provide that employers in all

13  classes other than the construction class be audited not less

14  frequently than biennially and may provide for more frequent

15  audits of employers in specified classifications based on

16  factors such as amount of premium, type of business, loss

17  ratios, or other relevant factors. In no event shall employers

18  in the construction class, generating more than the amount of

19  premium required to be experience rated, be audited less than

20  annually. The annual audits required for construction classes

21  shall consist of physical onsite audits.  Payroll verification

22  audit rules must include, but need not be limited to, the use

23  of state and federal reports of employee income, payroll and

24  other accounting records, certificates of insurance maintained

25  by subcontractors, and duties of employees. At the completion

26  of an audit, the employer or officer of the corporation and

27  the auditor must print and sign their names on the audit

28  document and attach proof of identification to the audit

29  document.

30         (6)  If an employer intentionally understates or

31  conceals payroll, or misrepresents or conceals employee duties


                                  38

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  so as to avoid proper classification for premium calculations,

  2  or misrepresents or conceals information pertinent to the

  3  computation and application of an experience rating

  4  modification factor, the employer, or the employer's agent or

  5  attorney, shall pay to the insurance carrier a penalty of 10

  6  times the amount of the difference in premium paid and the

  7  amount the employer should have paid and reasonable attorney's

  8  fees. The penalty may be enforced in the circuit courts of

  9  this state.

10         Section 15.  Section 440.40, Florida Statutes, is

11  amended to read:

12         440.40  Compensation notice.--Every employer who has

13  secured compensation under the provisions of this chapter

14  shall keep posted in a conspicuous place or places in and

15  about her or his place or places of business typewritten or

16  printed notices, in accordance with a form prescribed by the

17  division, the following:

18         (1)  A notice stating that such employer has secured

19  the payment of compensation in accordance with the provisions

20  of this chapter. Such notices shall contain the name and

21  address of the carrier, if any, with whom the employer has

22  secured payment of compensation and the date of the expiration

23  of the policy. The division may by rule prescribe the form of

24  the notices and require carriers to provide the notices to

25  policyholders.

26         (2)  A notice stating:  "Anti-Fraud Reward

27  Program.--Rewards of up to $25,000 may be paid to persons

28  providing information to the Department of Insurance leading

29  to the arrest and conviction of persons committing insurance

30  fraud, including employers who illegally fail to obtain

31  workers' compensation coverage. Persons may report suspected


                                  39

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  fraud to the department at...(Phone No.).... A person is not

  2  subject to civil liability for furnishing such information, if

  3  such person acts without malice, fraud, or bad faith."

  4         Section 16.  Subsection (1) of section 440.45, Florida

  5  Statutes, is amended to read:

  6         440.45  Office of the Judges of Compensation Claims.--

  7         (1)(a)  There is created the Office of the Judges of

  8  Compensation Claims within the Department of Management

  9  Services. The Office of the Judges of Compensation Claims

10  shall be headed by the Deputy Chief Judge of Compensation

11  Claims. The Deputy Chief Judge shall report to the director of

12  the Division of Administrative Hearings. The Deputy Chief

13  Judge shall be appointed by the Governor for a term of 4 years

14  from a list of three names submitted by the statewide

15  nominating commission created under subsection (2). The Deputy

16  Chief Judge must demonstrate prior administrative experience

17  and possess the same qualifications for appointment as a judge

18  of compensation claims, and the procedure for reappointment of

19  the Deputy Chief Judge will be the same as for reappointment

20  of a judge of compensation claims. The office shall be a

21  separate budget entity and the director of the Division of

22  Administrative Hearings shall be its agency head for all

23  purposes, including, but not limited to, rulemaking pursuant

24  to subsection (4) and establishing agency policies and

25  procedures.  The Department of Management Services shall

26  provide administrative support and service to the office to

27  the extent requested by the director of the Division of

28  Administrative Hearings but shall not direct, supervise, or

29  control the Office of the Judges of Compensation Claims in any

30  manner, including, but not limited to, personnel, purchasing,

31  budgetary matters, or property transactions. The operating


                                  40

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  budget of the Office of the Judges of Compensation Claims

  2  shall be paid out of the Workers' Compensation Administration

  3  Trust Fund established in s. 440.50.

  4         (b)  The current term of the Chief Judge of

  5  Compensation Claims shall expire October 1, 2001. Effective

  6  October 1, 2001, the position of Deputy Chief Judge of

  7  Compensation Claims is created.

  8         Section 17.  Section 489.114, Florida Statutes, is

  9  amended to read:

10         489.114  Evidence of workers' compensation

11  coverage.--Except as provided in s. 489.115(5)(d), any person,

12  business organization, or qualifying agent engaged in the

13  business of contracting in this state and certified or

14  registered under this part shall, as a condition precedent to

15  the issuance or renewal of a certificate, registration, or

16  certificate of authority of the contractor, provide to the

17  Construction Industry Licensing Board, as provided by board

18  rule, evidence of workers' compensation coverage pursuant to

19  chapter 440.  In the event that the Division of Workers'

20  Compensation of the Department of Labor and Employment

21  Security receives notice of the cancellation of a policy of

22  workers' compensation insurance insuring a person or entity

23  governed by this section, the Division of Workers'

24  Compensation shall certify and identify all persons or

25  entities by certification or registration license number to

26  the department after verification is made by the Division of

27  Workers' Compensation that such cancellation has occurred or

28  that persons or entities governed by this section are no

29  longer covered by workers' compensation insurance.  Such

30  certification and verification by the Division of Workers'

31  Compensation may shall result solely from records furnished to


                                  41

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  the Division of Workers' Compensation by the persons or

  2  entities governed by this section or an investigation

  3  completed by the Division of Workers' Compensation.  The

  4  department shall notify the persons or entities governed by

  5  this section who have been determined to be in noncompliance

  6  with chapter 440, and the persons or entities notified shall

  7  provide certification of compliance with chapter 440 to the

  8  department and pay an administrative fine in the amount of

  9  $500 as provided by rule.  The failure to maintain workers'

10  compensation coverage as required by law shall be grounds for

11  the board to revoke, suspend, or deny the issuance or renewal

12  of a certificate, registration, or certificate of authority of

13  the contractor under the provisions of s. 489.129.

14         Section 18.  Section 489.510, Florida Statutes, is

15  amended to read:

16         489.510  Evidence of workers' compensation

17  coverage.--Except as provided in s. 489.515(3)(b), any person,

18  business organization, or qualifying agent engaged in the

19  business of contracting in this state and certified or

20  registered under this part shall, as a condition precedent to

21  the issuance or renewal of a certificate or registration of

22  the contractor, provide to the Electrical Contractors'

23  Licensing Board, as provided by board rule, evidence of

24  workers' compensation coverage pursuant to chapter 440.  In

25  the event that the Division of Workers' Compensation of the

26  Department of Labor and Employment Security receives notice of

27  the cancellation of a policy of workers' compensation

28  insurance insuring a person or entity governed by this

29  section, the Division of Workers' Compensation shall certify

30  and identify all persons or entities by certification or

31  registration license number to the department after


                                  42

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  verification is made by the Division of Workers' Compensation

  2  that such cancellation has occurred or that persons or

  3  entities governed by this section are no longer covered by

  4  workers' compensation insurance.  Such certification and

  5  verification by the Division of Workers' Compensation may

  6  shall result solely from records furnished to the Division of

  7  Workers' Compensation by the persons or entities governed by

  8  this section or an investigation completed by the Division of

  9  Workers' Compensation. The department shall notify the persons

10  or entities governed by this section who have been determined

11  to be in noncompliance with chapter 440, and the persons or

12  entities notified shall provide certification of compliance

13  with chapter 440 to the department and pay an administrative

14  fine in the amount of $500 as provided by rule.  The failure

15  to maintain workers' compensation coverage as required by law

16  shall be grounds for the board to revoke, suspend, or deny the

17  issuance or renewal of a certificate or registration of the

18  contractor under the provisions of s. 489.533.

19         Section 19.  Subsection (2) of section 626.9892,

20  Florida Statutes, is amended to read:

21         626.9892  Anti-Fraud Reward Program; reporting of

22  insurance fraud.--

23         (2)  The department may pay rewards of up to $25,000 to

24  persons providing information leading to the arrest and

25  conviction of persons committing complex or organized crimes

26  investigated by the Division of Insurance Fraud arising from

27  violations of s. 440.105, s. 624.15, s. 626.9541, s. 626.989,

28  or s. 817.234.

29         Section 20.  The Department of Insurance, in

30  consultation with the board of governors of the joint

31  underwriting association authorized under section 627.311,


                                  43

CODING: Words stricken are deletions; words underlined are additions.




    ENROLLED

    2002 Legislature           CS for CS for SB 108, 2nd Engrossed



  1  Florida Statutes, shall conduct a study of the response of the

  2  insurance market in meeting the need for coverage among

  3  construction industry employers at a rate that is not

  4  inadequate, excessive, or unfairly discriminatory, and any

  5  actual or potential availability concerns. The scope of the

  6  study shall include a review of workers' compensation

  7  insurance currently provided or required in other states and

  8  possible alternative coverages. The department shall submit a

  9  report recommending any changes needed to promote availability

10  of coverage at a rate that is not inadequate, excessive, or

11  unfairly discriminatory, to the President of the Senate and

12  the Speaker of the House of Representatives on or before

13  February 1, 2003.

14         Section 21.  This act shall take effect July 1, 2002.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31


                                  44

CODING: Words stricken are deletions; words underlined are additions.