House Bill hb1655

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    Florida House of Representatives - 2002                HB 1655

        By Representative Ross






  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.02, F.S.; revising definitions;

  4         amending s. 440.05, F.S.; revising exemptions

  5         from the requirement for employers to obtain

  6         workers' compensation coverage; specifying who

  7         may be exempt and the conditions for an

  8         exemption; specifying the effect of an

  9         exemption; requiring businesses, sole

10         proprietors, and partners to maintain certain

11         records; amending s. 440.06, F.S.; requiring

12         employers to secure compensation; amending s.

13         440.09, F.S.; requiring certain evidence or

14         findings for certain purposes; providing

15         construction; requiring certain entities

16         actively engaged in the construction industry

17         to secure payment of compensation under ch.

18         440, F.S., after a certain date; amending s.

19         440.10, F.S.; clarifying liability for

20         compensation; amending s. 440.107, F.S.;

21         authorizing the Division of Workers'

22         Compensation to issue stop-work orders in

23         certain circumstances; amending s. 440.11,

24         F.S.; revising exclusiveness of liability

25         provisions to provide carriers or employers an

26         offset against certain benefits under certain

27         circumstances; specifying absence of vicarious

28         liability for employers; amending s. 440.13,

29         F.S.; specifying governance of costs for

30         independent medical examinations; revising a

31         limitation on certain chiropractic services;

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  1         providing an additional criterion for

  2         determining certain value of nonprofessional

  3         attendant care provided by a family member;

  4         requiring carriers to allow employees to change

  5         physicians under certain circumstances;

  6         specifying payments for independent medical

  7         examinations; deleting selection of independent

  8         medical examiner criteria; specifying the

  9         number of medical opinions admissible into

10         evidence; requiring the division to impose

11         certain penalties under certain circumstances;

12         specifying certain guides for reimbursement

13         allowances; deleting provisions creating a

14         three-member panel; deleting certain provisions

15         relating to establishing uniform schedules of

16         maximum reimbursement allowances; amending s.

17         440.134, F.S.; revising a definition; revising

18         certain grievance procedures for workers'

19         compensation managed care arrangements;

20         amending s. 440.14, F.S.; providing for

21         determination of pay; amending s. 440.15, F.S.;

22         revising criteria for payment of compensation

23         for permanent total disability; revising

24         criteria for payment of permanent impairment

25         benefits; amending s. 440.185, F.S.; revising

26         certain information that must be included in a

27         report of injury; amending s. 440.191, F.S.;

28         including managed care arrangements under

29         provisions relating to the Employee Assistance

30         and Ombudsman Office; revising procedures for

31         petitions for benefits under the office;

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  1         amending s. 440.192, F.S.; revising procedures

  2         for resolving benefit disputes; amending s.

  3         440.20, F.S.; prohibiting approval of

  4         settlement proposals providing for attorney's

  5         fees in excess of certain amounts; providing

  6         for judges of compensation claims to approve

  7         settlement agreements under certain

  8         circumstances; authorizing a judge of

  9         compensation claims to require additional

10         information; providing for mediation

11         conferences; providing requirements; providing

12         a judge of compensation claims jurisdiction to

13         require compliance; amending s. 440.25, F.S.;

14         revising procedures and requirements for

15         mediation and hearings; providing for private

16         mediation under certain circumstances;

17         providing limitations; providing construction;

18         limiting continuances; providing for selections

19         of mediators by the Deputy Chief Judge;

20         providing for holding mediation conferences

21         instead of mediation hearings under certain

22         circumstances; providing a limitation on

23         mediation conferences; providing for completion

24         of pretrial stipulations; authorizing a judge

25         of compensation claims to sanction certain

26         parties under certain circumstances; requiring

27         a judge of compensation claims to order a

28         pretrial hearing for certain purposes under

29         certain circumstances; revising final hearing

30         time limitations and procedures; providing for

31         dismissal of certain petitions for lack of

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  1         prosecution under certain circumstances;

  2         providing for voluntary binding dispute

  3         resolution; providing procedures and

  4         requirements; providing for entering binding

  5         orders; providing for enforcement; amending s.

  6         440.29, F.S.; providing for receipt into

  7         evidence of medical reports from independent

  8         medical examiners; amending s. 440.34, F.S.;

  9         revising limitations on attorney's fees;

10         authorizing judges of compensation claims to

11         approve additional attorney's fees under

12         certain circumstances; providing limitations;

13         prohibiting award of attorney's fees in excess

14         of certain amounts; deleting criteria for

15         determining certain attorney's fees; amending

16         s. 440.345, F.S.; requiring a summary report of

17         attorney's fees to the Governor and the

18         Legislature; amending s. 440.39, F.S.;

19         specifying duties of carriers with respect to

20         certain evidence; amending s. 440.45, F.S.;

21         specifying salaries of judges of compensation

22         claims; amending s. 440.491, F.S., to conform;

23         providing that determinations under ss. 112.18,

24         112.181, and 112.19, F.S., are not affected;

25         providing severability; providing an effective

26         date.

27

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

29

30

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  1         Section 1.  Paragraph (b) of subsection (14), paragraph

  2  (b) of subsection (16), and subsection (37) of section 440.02,

  3  Florida Statutes, are amended 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 two 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,

20         a.  Such election is valid only with respect to an

21  officer who is the president, vice president, secretary, or

22  treasurer of the corporation.

23         b.  Such election is valid only with respect to an

24  officer who owns not less than 10 percent of the stock of the

25  corporation.

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

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

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

29

30

31

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  1  Services are presumed to have been rendered to the corporation

  2  if the officer is compensated by other than dividends upon

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

  4         (16)

  5         (b)  "Employment" includes:

  6         1.  Employment by the state and all political

  7  subdivisions thereof and all public and quasi-public

  8  corporations therein, including officers elected at the polls.

  9         2.  All private employments in which two four or more

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

11  to the construction industry, all private employment in which

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

13         3.  Volunteer firefighters responding to or assisting

14  with fire or medical emergencies whether or not the

15  firefighters are on duty.

16         (37)  "Catastrophic injury" means a permanent

17  impairment constituted by:

18         (a)  Spinal cord injury involving severe paralysis of

19  an arm, a leg, or the trunk;

20         (b)  Amputation of an arm, a hand, a foot, or a leg

21  involving the effective loss of use of that appendage;

22         (c)  Severe brain or closed-head injury as evidenced

23  by:

24         1.  Severe sensory or motor disturbances;

25         2.  Severe communication disturbances;

26         3.  Severe complex integrated disturbances of cerebral

27  function;

28         4.  Severe episodic neurological disorders; or

29         5.  Other severe brain and closed-head injury

30  conditions at least as severe in nature as any condition

31  provided in subparagraphs 1.-4.;

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  1         (d)  Second-degree or third-degree burns of 25 percent

  2  or more of the total body surface or third-degree burns of 5

  3  percent or more to the face and hands; or

  4         (e)  Total or industrial blindness; or

  5         (f)  Any other injury that would otherwise qualify

  6  under this chapter of a nature and severity that would qualify

  7  an employee to receive disability income benefits under Title

  8  II or supplemental security income benefits under Title XVI of

  9  the federal Social Security Act as the Social Security Act

10  existed on July 1, 1992, without regard to any time

11  limitations provided under that act.

12         Section 2.  Subsections (10), (11), (12), and (13) are

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

14         440.05  Election of exemption; revocation of election;

15  notice; certification.--

16         (10)  Any person exempted from this chapter under this

17  section who secures, or whose employer secures for him or her,

18  workers' compensation insurance coverage is considered to have

19  waived the right to such an exemption and is subject to the

20  provisions of this chapter.

21         (11)  Every enterprise conducting business in this

22  state shall maintain business records as specified by the

23  division by rule, which rules must include the provision that

24  any corporation with exempt officers, and any partnership with

25  exempt partners must maintain written statements of those

26  exempted persons affirmatively acknowledging each such

27  individual's exempt status.

28         (12)  Any sole proprietor or partner claiming an

29  exemption under this section shall maintain a copy of his or

30  her federal income tax records for each of the immediately

31  preceding 3 years in which he or she claims an exemption. Such

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  1  federal income tax records shall include a complete copy of

  2  the following for each year in which an exemption is claimed:

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

  4  Form 1040 and its accompanying Schedule C.

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

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

  7  Form 1040 and its accompanying Schedule E.

  8

  9  The sole proprietor or partner in question shall produce, upon

10  request by the division, a copy of those documents together

11  with a statement by the sole proprietor that the tax records

12  provided are true and accurate copies of what the sole

13  proprietor or partner has filed with the federal Internal

14  Revenue Service. The statement shall be signed under oath by

15  the sole proprietor or partner in question and must be

16  notarized. The division shall issue a stop-work order under s.

17  440.107(5) to any sole proprietor or partner who fails or

18  refuses to produce a copy of the tax records and affidavit

19  required under this paragraph to the division within 3

20  business days after the request is made.

21         (13)  Any corporate officer claiming an exemption under

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

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

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

25  officer is not listed as such on the records of the Secretary

26  of State, the individual shall provide to the division, upon

27  request by the division, a notarized affidavit stating that

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

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

30  corporate officer became or will become effective. The

31  statement shall be signed under oath by both the officer in

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  1  question and the president or chief operating officer of the

  2  corporation and must be notarized. The division shall issue a

  3  stop-work order under s. 440.107(1) to any person who claims

  4  to be exempt as a corporate officer but who fails or refuses

  5  to produce the documents required under this subsection to the

  6  division within 3 business days after the request is made.

  7         Section 3.  Section 440.06, Florida Statutes, is

  8  amended to read:

  9         440.06  Failure to secure compensation; effect.--Every

10  employer who fails to secure the payment of compensation, as

11  provided in s. 440.10, by failing to meet the requirements of

12  under this chapter as provided in s. 440.38 may not, in any

13  suit brought against him or her by an employee subject to this

14  chapter to recover damages for injury or death, defend such a

15  suit on the grounds that the injury was caused by the

16  negligence of a fellow servant, that the employee assumed the

17  risk of his or her employment, or that the injury was due to

18  the comparative negligence of the employee.

19         Section 4.  Subsection (1) of section 440.09, Florida

20  Statutes, is amended, and subsection (9) is added to said

21  section, to read:

22         440.09  Coverage.--

23         (1)  The employer shall pay compensation or furnish

24  benefits required by this chapter if the employee suffers an

25  accidental compensable injury or death arising out of work

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

27  injury, its occupational cause, and any resulting

28  manifestations or disability shall be established to a

29  reasonable degree of medical certainty and by objective

30  medical findings. Mental or nervous injuries occurring as a

31  manifestation of an injury compensable under this section

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  1  shall be demonstrated by clear and convincing evidence. Cases

  2  involving occupational disease or repetitive trauma shall be

  3  proven by clear and convincing evidence and supported by

  4  accepted scientific methods.

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

  6  benefits for any subsequent injury the employee suffers as a

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

  8  of employment unless the original injury is the major

  9  contributing cause of the subsequent injury. For purposes of

10  this paragraph, the term "major contributing cause" means

11  that, within a reasonable degree of medical certainty and

12  supported by objective medical findings, the original injury

13  is more than 50 percent of the cause of disability or need for

14  treatment.

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

16  employment combines with a preexisting disease or condition to

17  cause or prolong disability or need for treatment, the

18  employer must pay compensation or benefits required by this

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

20  in the course of employment is and remains the major

21  contributing cause of the disability or need for treatment.

22  For purposes of this paragraph, the term "major contributing

23  cause" means that, within a reasonable degree of medical

24  certainty and supported by objective medical findings, the

25  injury arising out of and in the course of employment is more

26  than 50 percent of the cause of disability or need for

27  treatment.

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

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

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

31

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  1  considered to be a death resulting from the accident causing

  2  the hernia.

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

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

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

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

  7  are entitled to compensation if the contract of employment was

  8  made in this state, or the employment was principally

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

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

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

12  provided in this chapter.

13         (9)  Notwithstanding any other provision of this

14  chapter, effective January 1, 2005, all corporations,

15  partnerships, and sole proprietorships who are actively

16  engaged in the construction industry shall secure the payment

17  of compensation under this chapter.

18         Section 5.  Paragraph (a) of subsection (1) of section

19  440.10, Florida Statutes, is amended to read:

20         440.10  Liability for compensation.--

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

22  this chapter, including any brought within the chapter by

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

24  shall secure, in accordance with s. 440.38, the payment to his

25  or her employees, or any physician, surgeon, or pharmacist

26  providing services under the provisions of s. 440.13, of the

27  compensation payable under ss. 440.13, 440.15, and 440.16. Any

28  contractor or subcontractor who engages in any public or

29  private construction in the state shall secure and maintain

30  compensation for his or her employees under this chapter as

31  provided in s. 440.38.

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  1         Section 6.  Subsection (5) of section 440.107, Florida

  2  Statutes, is amended to read:

  3         440.107  Division powers to enforce employer compliance

  4  with coverage requirements.--

  5         (5)  Whenever the division determines that an employer

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

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

  8  do so or the division determines that an employer has

  9  misrepresented to a carrier the size or classification of the

10  employer's payroll, such failure or misrepresentation shall be

11  deemed an immediate serious danger to public health, safety,

12  or welfare sufficient to justify service by the division of a

13  stop-work order on the employer, requiring the cessation of

14  all business operations within this state at the place of

15  employment or job site. The order shall take effect upon the

16  date of service upon the employer, unless the employer

17  provides evidence satisfactory to the division of having

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

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

20  into the Workers' Compensation Administration Trust Fund, in

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

22  in compliance with this chapter.

23         Section 7.  Subsection (1) of section 440.11, Florida

24  Statutes, is amended to read:

25         440.11  Exclusiveness of liability.--

26         (1)  Except if an employer acts with the intent to

27  cause injury or death, the liability of an employer prescribed

28  in s. 440.10 shall be exclusive and in place of all other

29  liability, including any vicarious liability, of such employer

30  to any third-party tortfeasor and to the employee, the legal

31  representative thereof, husband or wife, parents, dependents,

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  1  next of kin, and anyone otherwise entitled to recover damages

  2  from such employer at law or in admiralty on account of such

  3  injury or death, except that if an employer fails to secure

  4  payment of compensation in accordance with s. 440.38 as

  5  required by this chapter, an injured employee, or the legal

  6  representative thereof in case death results from the injury,

  7  may elect to claim compensation under this chapter or to

  8  maintain an action at law or in admiralty for damages on

  9  account of such injury or death. In such action the defendant

10  may not plead as a defense that the injury was caused by

11  negligence of a fellow employee, that the employee assumed the

12  risk of the employment, or that the injury was due to the

13  comparative negligence of the employee. The same immunities

14  from liability enjoyed by an employer shall extend as well to

15  each employee of the employer when such employee is acting in

16  furtherance of the employer's business and the injured

17  employee is entitled to receive benefits under this chapter.

18  Such fellow-employee immunities shall not be applicable to an

19  employee who acts, with respect to a fellow employee, with

20  willful and wanton disregard or unprovoked physical aggression

21  or with gross negligence when such acts result in injury or

22  death or such acts proximately cause such injury or death, nor

23  shall such immunities be applicable to employees of the same

24  employer when each is operating in the furtherance of the

25  employer's business but they are assigned primarily to

26  unrelated works within private or public employment. The same

27  immunity provisions enjoyed by an employer shall also apply to

28  any sole proprietor, partner, corporate officer or director,

29  supervisor, or other person who in the course and scope of his

30  or her duties acts in a managerial or policymaking capacity

31  and the conduct which caused the alleged injury arose within

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  1  the course and scope of said managerial or policymaking duties

  2  and was not a violation of a law, whether or not a violation

  3  was charged, for which the maximum penalty which may be

  4  imposed does not exceed 60 days' imprisonment as set forth in

  5  s. 775.082. The immunity from liability provided in this

  6  subsection extends to county governments with respect to

  7  employees of county constitutional officers whose offices are

  8  funded by the board of county commissioners. If an employee

  9  recovers damages from an employer either by judgment or

10  settlement under this subsection, the workers' compensation

11  carrier for the employer or the employer, if self-insured,

12  shall have an offset against any workers' compensation

13  benefits to which the employee would be entitled under this

14  chapter.  Nothing in this subsection shall create or result in

15  vicarious liability on the part of the employer.

16         Section 8.  Paragraph (j) of subsection (1), paragraphs

17  (a) and (b) of subsection (2), paragraphs (a), (b), (e), and

18  (f) of subsection (5), paragraph (b) of subsection (8),

19  paragraph (c) of subsection (9), and paragraphs (a) and (c) of

20  subsection (12) of section 440.13, Florida Statutes, are

21  amended, and paragraph (f) is added to subsection (2) of said

22  section, to read:

23         440.13  Medical services and supplies; penalty for

24  violations; limitations.--

25         (1)  DEFINITIONS.--As used in this section, the term:

26         (j)  "Independent medical examiner" means a physician

27  selected by either an employee or a carrier to render one or

28  more independent medical examinations in connection with a

29  dispute arising under this chapter. Notwithstanding rules

30  adopted by the division, costs for independent medical

31  examinations shall be governed by this chapter.

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

  2         (a)  Subject to the limitations specified elsewhere in

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

  4  medically necessary remedial treatment, care, and attendance

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

  6  recovery may require, including medicines, medical supplies,

  7  durable medical equipment, orthoses, prostheses, and other

  8  medically necessary apparatus. Remedial treatment, care, and

  9  attendance, including work-hardening programs or

10  pain-management programs accredited by the Commission on

11  Accreditation of Rehabilitation Facilities or Joint Commission

12  on the Accreditation of Health Organizations or

13  pain-management programs affiliated with medical schools,

14  shall be considered as covered treatment only when such care

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

16  chapter. Each facility shall maintain outcome data, including

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

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

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

20  Speaker of the House of Representatives regarding the efficacy

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

22  1, 1994. Medically necessary treatment, care, and attendance

23  does not include chiropractic services in excess of 36 18

24  treatments or rendered 16 8 weeks beyond the date of the

25  initial chiropractic treatment, whichever comes first, unless

26  the carrier authorizes additional treatment or the employee is

27  catastrophically injured.

28         (b)  The employer shall provide appropriate

29  professional or nonprofessional attendant care performed only

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

31  medically necessary. The value of nonprofessional attendant

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  1  care provided by a family member must be determined as

  2  follows:

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

  4  value equals the federal minimum hourly wage.

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

  6  leave that employment to provide attendant or custodial care,

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

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

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

10  large.

11         3.  If the family member remains employed while

12  providing attendant or custodial care, the per-hour value of

13  that care equals the per-hour value of the family member's

14  employment, not to exceed the per-hour value of such care

15  available in the community at large.

16         4.  A family member or a combination of family members

17  providing nonprofessional attendant care under this paragraph

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

19  day.

20         (f)  Upon the written request of the employee, the

21  carrier shall give the employee the opportunity for only a

22  single change of physician during the course of treatment, for

23  any medical specialty which has either been previously

24  authorized by the carrier or which specialty has been found by

25  a judge of compensation claims to be medically necessary as a

26  result of the accident, for any one accident.  The employee

27  shall be entitled to select another physician from among not

28  fewer than three carrier-authorized physicians who are not

29  professionally affiliated. If the selected physician ceases to

30  practice in this state or relocates his or her office to a

31  location that is more than 50 miles from the employee's

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  1  residence, the employee is entitled to select another

  2  physician from among not fewer than three physicians who are

  3  authorized by the carrier and who are not professionally

  4  affiliated.

  5         (5)  INDEPENDENT MEDICAL EXAMINATIONS.--

  6         (a)  In any dispute concerning overutilization, medical

  7  benefits, compensability, or disability under this chapter,

  8  the carrier or the employee may select an independent medical

  9  examiner. The examiner may be a health care provider treating

10  or providing other care to the employee. An independent

11  medical examiner may not render an opinion outside his or her

12  area of expertise, as demonstrated by licensure and applicable

13  practice parameters. Upon the written request of the employee,

14  the carrier shall pay the cost of only a single independent

15  medical examination per accident. The cost of any additional

16  independent medical examination shall be borne by the party

17  requesting the additional independent medical examination.

18  Only the costs of independent medical examinations expressly

19  relied upon by the judge of compensation claims to award

20  benefits in the final compensation order shall be taxable

21  costs under s. 440.34(3).

22         (b)  Each party is bound by his or her selection of an

23  independent medical examiner and is entitled to an alternate

24  examiner only if:

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

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

27  material to the claim or petition for benefits;

28         2.  The examiner ceases to practice in the specialty

29  relevant to the employee's condition;

30

31

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

  2  or relocation outside a reasonably accessible geographic area;

  3  or

  4         4.  The parties agree to an alternate examiner.

  5

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

  7  require, designation of a division medical advisor as an

  8  independent medical examiner. The opinion of the advisors

  9  acting as examiners shall not be afforded the presumption set

10  forth in paragraph (9)(c).

11         (e)  No medical opinion other than the opinion of a

12  medical advisor appointed by the judge of compensation claims

13  or division, an independent medical examiner, or an authorized

14  treating provider is admissible in proceedings before the

15  judges of compensation claims. The employee and the carrier

16  may each submit into evidence, and the judge of compensation

17  claims shall admit, the medical opinion of no more than one

18  independent medical examiner per specialty. In cases involving

19  occupational disease or repetitive trauma, no medical opinions

20  are admissible unless based on reliable scientific principles

21  sufficiently established to have gained general acceptance in

22  the pertinent area of specialty.

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

24  connection with delay of or opposition to an independent

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

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

27         (8)  PATTERN OR PRACTICE OF OVERUTILIZATION.--

28         (b)  If the division determines that a health care

29  provider has engaged in a pattern or practice of

30  overutilization or a violation of this chapter or rules

31

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  1  adopted by the division, it shall may impose one or more of

  2  the following penalties:

  3         1.  An order of the division barring the provider from

  4  payment under this chapter;

  5         2.  Deauthorization of care under review;

  6         3.  Denial of payment for care rendered in the future;

  7         4.  Decertification of a health care provider certified

  8  as an expert medical advisor under subsection (9) or of a

  9  rehabilitation provider certified under s. 440.49;

10         5.  An administrative fine assessed by the division in

11  an amount not to exceed $5,000 per instance of overutilization

12  or violation; and

13         6.  Notification of and review by the appropriate

14  licensing authority pursuant to s. 440.106(3).

15         (9)  EXPERT MEDICAL ADVISORS.--

16         (c)  If there is disagreement in the opinions of the

17  health care providers, if two health care providers disagree

18  on medical evidence supporting the employee's complaints or

19  the need for additional medical treatment, or if two health

20  care providers disagree that the employee is able to return to

21  work, the division may, and the judge of compensation claims

22  may shall, upon his or her own motion or within 15 days after

23  receipt of a written request by either the injured employee,

24  the employer, or the carrier, order the injured employee to be

25  evaluated by an expert medical advisor. The opinion of the

26  expert medical advisor is presumed to be correct unless there

27  is clear and convincing evidence to the contrary as determined

28  by the judge of compensation claims. The expert medical

29  advisor appointed to conduct the evaluation shall have free

30  and complete access to the medical records of the employee. An

31  employee who fails to report to and cooperate with such

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  1  evaluation forfeits entitlement to compensation during the

  2  period of failure to report or cooperate.

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

  4  REIMBURSEMENT ALLOWANCES.--

  5         (a)  The most current American Medical Association

  6  Current Procedural Terminology codes with associated modified

  7  relative values as published by the Centers for Medicare and

  8  Medicaid shall be adopted and updated annually no later than

  9  45 days after the Centers for Medicare and Medicaid notices

10  the annual update in the Federal Register.  The reimbursement

11  allowances for medically necessary treatment, care, and

12  attendance for health care providers shall be no less than 125

13  percent of the applicable Medicare reimbursement allowance for

14  nonsurgical codes and 150 percent of the applicable Medicare

15  reimbursement allowance for surgical codes for such services

16  in the locality in which the treatment is received. The

17  initial fee schedule shall be based upon the 2001 conversion

18  factor and shall change annually at the time of the annual

19  Medicare upgrade. Increases or decreases shall be equal to the

20  National Medical Price Index. For services not covered by

21  Medicare reimbursement allowances, maximum reimbursement

22  allowances shall be set by the median 75 percentile for this

23  state as determined by Medicode on an annual basis. National

24  relative values for pathology shall be adopted from the

25  relative values for physicians and for dentistry shall be

26  adopted from the relative values for dentists. A three-member

27  panel is created, consisting of the Insurance Commissioner, or

28  the Insurance Commissioner's designee, and two members to be

29  appointed by the Governor, subject to confirmation by the

30  Senate, one member who, on account of present or previous

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

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  1  representative of employers, the other member who, on account

  2  of previous vocation, employment, or affiliation, shall be

  3  classified as a representative of employees. The panel shall

  4  determine statewide schedules of maximum reimbursement

  5  allowances for medically necessary treatment, care, and

  6  attendance provided by physicians, hospitals, ambulatory

  7  surgical centers, work-hardening programs, pain programs, and

  8  durable medical equipment. The maximum reimbursement

  9  allowances for inpatient hospital care shall be based on a

10  schedule of per diem rates, to be approved by the three-member

11  panel no later than March 1, 1994, to be used in conjunction

12  with a precertification manual as determined by the division.

13  All compensable charges for hospital outpatient care shall be

14  reimbursed at 75 percent of usual and customary charges. Until

15  the three-member panel approves a schedule of per diem rates

16  for inpatient hospital care and it becomes effective, all

17  compensable charges for hospital inpatient care must be

18  reimbursed at 75 percent of their usual and customary charges.

19  Annually, the three-member panel shall adopt schedules of

20  maximum reimbursement allowances for physicians, hospital

21  inpatient care, hospital outpatient care, ambulatory surgical

22  centers, work-hardening programs, and pain programs. However,

23  the maximum percentage of increase in the individual

24  reimbursement allowance may not exceed the percentage of

25  increase in the Consumer Price Index for the previous year. An

26  individual physician, hospital, ambulatory surgical center,

27  pain program, or work-hardening program shall be reimbursed

28  either the usual and customary charge for treatment, care, and

29  attendance, the agreed-upon contract price, or the maximum

30  reimbursement allowance in the appropriate schedule, whichever

31  is less.

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

  2  such treatment, care, and attendance, including treatment,

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

  4  care provider, ambulatory surgical center, work-hardening

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

  6  by the uniform schedule of maximum reimbursement allowances as

  7  determined by the panel or as otherwise provided in this

  8  section. This subsection also applies to independent medical

  9  examinations performed by health care providers under this

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

11  schedule of maximum reimbursement allowances and it becomes

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

13  attendance provided by physicians, ambulatory surgical

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

15  reimbursed at the lowest maximum reimbursement allowance

16  across all 1992 schedules of maximum reimbursement allowances

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

18  In determining the uniform schedule, the panel shall first

19  approve the data which it finds representative of prevailing

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

21  attendance of injured persons. Each health care provider,

22  health care facility, ambulatory surgical center,

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

24  compensation payments shall maintain records verifying their

25  usual charges. In establishing the uniform schedule of maximum

26  reimbursement allowances, the panel must consider:

27         1.  The levels of reimbursement for similar treatment,

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

29  third-party providers;

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

31  level of reimbursement for treatment, care, and attendance

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

  2  attendance required by injured workers;

  3         3.  The financial impact of the reimbursement

  4  allowances upon health care providers and health care

  5  facilities, including trauma centers as defined in s.

  6  395.4001, and its effect upon their ability to make available

  7  to injured workers such medically necessary remedial

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

  9  maximum reimbursement allowances must be reasonable, must

10  promote health care cost containment and efficiency with

11  respect to the workers' compensation health care delivery

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

13  medically necessary remedial treatment, care, and attendance

14  to injured workers; and

15         4.  The most recent average maximum allowable rate of

16  increase for hospitals determined by the Health Care Board

17  under chapter 408.

18         Section 9.  Paragraph (d) of subsection (1) and

19  paragraphs (c) and (d) of subsection (15) of section 440.134,

20  Florida Statutes, are amended to read:

21         440.134  Workers' compensation managed care

22  arrangement.--

23         (1)  As used in this section, the term:

24         (d)  "Grievance" means a written complaint filed by an

25  injured worker expressing dissatisfaction with the insurer's

26  workers' compensation managed care arrangement's refusal to

27  provide medical care provided by an insurer's workers'

28  compensation managed care arrangement health care providers,

29  expressed in writing by an injured worker.

30         (15)

31

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  1         (c)  At the time the workers' compensation managed care

  2  arrangement is implemented, the insurer must provide detailed

  3  information to workers and health care providers describing

  4  how a grievance may be registered with the insurer. Within 15

  5  days after the date the request for medical care is received

  6  by the insurer or by the insurer's workers' compensation

  7  managed care arrangement, whichever date is earlier, the

  8  insurer shall grant or deny the request. If the insurer denies

  9  the request, the insurer shall notify the injured worker or

10  the injured worker's attorney in writing of the injured

11  worker's right to file a grievance.

12         (d)  Grievances must be considered in a timely manner

13  and must be transmitted to appropriate decisionmakers who have

14  the authority to fully investigate the issue and take

15  corrective action. If the insurer or the insurer's workers'

16  compensation managed care arrangement fails to notify the

17  injured worker of the outcome of the grievance in writing

18  within 15 days after the date of receiving the grievance, the

19  grievance shall be presumed to be resolved against the injured

20  worker and the grievance procedures shall be presumed to be

21  exhausted for purposes of s. 440.192(3).

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

23  440.14, Florida Statutes, is amended to read:

24         440.14  Determination of pay.--

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

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

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

28  compensation and shall be determined, subject to the

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

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

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

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

  2  substantially the whole of 13 weeks immediately preceding the

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

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

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

  6  "substantially the whole of 13 weeks" means an actual shall be

  7  deemed to mean and refer to a constructive period of 13 weeks

  8  as a whole, which shall be defined as the 13 complete weeks

  9  before the date of the accident, excluding the week the injury

10  occurs. a consecutive period of 91 days, and The term "during

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

12  during not less than 90 percent of the total customary

13  full-time hours of employment within such period considered as

14  a whole.

15         Section 11.  Paragraphs (b) and (f) of subsection (1)

16  and subsection (3) of section 440.15, Florida Statutes, are

17  amended to read:

18         440.15  Compensation for disability.--Compensation for

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

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

21         (1)  PERMANENT TOTAL DISABILITY.--

22         (b)  Any compensable injury eligible for permanent

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

24  the employee from being able to perform at least sedentary

25  employment. If the employee is engaged in or is capable of

26  being engaged in at least sedentary employment, he or she is

27  not entitled to permanent total disability. The burden is on

28  the employee to establish that he or she is unable to perform

29  even sedentary work if such work is available within a 50-mile

30  radius of the employee's residence or such greater distance as

31  the judge determines to be reasonable under the circumstances.

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  1  In addition, Only a catastrophic injury as defined in s.

  2  440.02 shall, in the absence of conclusive proof of a

  3  substantial earning capacity, constitute permanent total

  4  disability. Only claimants with catastrophic injuries are

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

  6  permanent total disability benefits be awarded.

  7         (f)1.  If permanent total disability results from

  8  injuries that occurred subsequent to June 30, 1955, and for

  9  which the liability of the employer for compensation has not

10  been discharged under s. 440.20(11), the injured employee

11  shall receive additional weekly compensation benefits equal to

12  5 percent of her or his weekly compensation rate, as

13  established pursuant to the law in effect on the date of her

14  or his injury, multiplied by the number of calendar years

15  since the date of injury. The weekly compensation payable and

16  the additional benefits payable under this paragraph, when

17  combined, may not exceed the maximum weekly compensation rate

18  in effect at the time of payment as determined pursuant to s.

19  440.12(2). Entitlement to these supplemental payments shall

20  cease at age 62 if the employee is eligible for social

21  security benefits under 42 U.S.C. s. ss. 402 or s. and 423,

22  whether or not the employee has applied for such benefits.

23  These supplemental benefits shall be paid by the division out

24  of the Workers' Compensation Administration Trust Fund when

25  the injury occurred subsequent to June 30, 1955, and before

26  July 1, 1984. These supplemental benefits shall be paid by the

27  employer when the injury occurred on or after July 1, 1984.

28  Supplemental benefits are not payable for any period prior to

29  October 1, 1974.

30         2.a.  The division shall provide by rule for the

31  periodic reporting to the division of all earnings of any

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  1  nature and social security income by the injured employee

  2  entitled to or claiming additional compensation under

  3  subparagraph 1. Neither the division nor the employer or

  4  carrier shall make any payment of those additional benefits

  5  provided by subparagraph 1. for any period during which the

  6  employee willfully fails or refuses to report upon request by

  7  the division in the manner prescribed by such rules.

  8         b.  The division shall provide by rule for the periodic

  9  reporting to the employer or carrier of all earnings of any

10  nature and social security income by the injured employee

11  entitled to or claiming benefits for permanent total

12  disability. The employer or carrier is not required to make

13  any payment of benefits for permanent total disability for any

14  period during which the employee willfully fails or refuses to

15  report upon request by the employer or carrier in the manner

16  prescribed by such rules or if any employee who is receiving

17  permanent total disability benefits refuses to apply for or

18  cooperate with the employer or carrier in applying for social

19  security benefits.

20         3.  When an injured employee receives a full or partial

21  lump-sum advance of the employee's permanent total disability

22  compensation benefits, the employee's benefits under this

23  paragraph shall be computed on the employee's weekly

24  compensation rate as reduced by the lump-sum advance.

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

26         (a)  Impairment benefits.--

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

28  medical improvement, impairment benefits are due and payable

29  within 20 days after the carrier has knowledge of the

30  impairment and shall be paid in accordance with this section.

31

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

  2  division, shall establish and use a uniform permanent

  3  impairment rating schedule. This schedule must be based on

  4  medically or scientifically demonstrable findings as well as

  5  the systems and criteria set forth in the American Medical

  6  Association's Guides to the Evaluation of Permanent

  7  Impairment; the Snellen Charts, published by American Medical

  8  Association Committee for Eye Injuries; and the Minnesota

  9  Department of Labor and Industry Disability Schedules. The

10  schedule should be based upon objective findings. The schedule

11  shall be more comprehensive than the AMA Guides to the

12  Evaluation of Permanent Impairment and shall expand the areas

13  already addressed and address additional areas not currently

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

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

16  Evaluation of Permanent Impairment, copyright 1977, 1971,

17  1988, by the American Medical Association, shall be the

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

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

20  division rule of a uniform disability rating schedule, the

21  Minnesota Department of Labor and Industry Disability Schedule

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

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

24  Impairment by the American Medical Association shall be used.

25  Determination of permanent impairment under this schedule must

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

27  osteopathic medicine licensed under chapters 458 and 459, a

28  chiropractic physician licensed under chapter 460, a podiatric

29  physician licensed under chapter 461, an optometrist licensed

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

31  appropriate considering the nature of the injury. No other

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  1  persons are authorized to render opinions regarding the

  2  existence of or the extent of permanent impairment.

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

  4  impairment rating using the impairment schedule referred to in

  5  subparagraph 2. Impairment income benefits are paid weekly at

  6  a the rate equal to 100 of 50 percent of the employee's

  7  compensation rate, average weekly temporary total disability

  8  benefit not to exceed the maximum weekly benefit under s.

  9  440.12, however, such benefits shall be reduced by 50 percent

10  for each week in which the employee has earned income equal to

11  or in excess of the employee's average weekly wage or the

12  employee has unjustifiably refused employment in which the

13  employee would have earned such income. An employee's

14  entitlement to impairment income benefits begins the day after

15  the employee reaches maximum medical improvement or the

16  expiration of temporary benefits, whichever occurs earlier,

17  and continues until the earlier of:

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

19  3 weeks for each percentage point of impairment; or

20         b.  The death of the employee.

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

22  as having reached maximum medical improvement or 6 weeks

23  before the expiration of temporary benefits, whichever occurs

24  earlier, the certifying doctor shall evaluate the condition of

25  the employee and assign an impairment rating, using the

26  impairment schedule referred to in subparagraph 2.

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

28  emotional injury arising out of depression from being out of

29  work or from any preexisting mental, psychological, or

30  emotional condition. If the certification and evaluation are

31  performed by a doctor other than the employee's treating

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  1  doctor, the certification and evaluation must be submitted to

  2  the treating doctor, and the treating doctor must indicate

  3  agreement or disagreement with the certification and

  4  evaluation. The certifying doctor shall issue a written report

  5  to the division, the employee, and the carrier certifying that

  6  maximum medical improvement has been reached, stating the

  7  impairment rating, and providing any other information

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

  9  certified as having reached maximum medical improvement before

10  the expiration of 102 weeks after the date temporary total

11  disability benefits begin to accrue, the carrier shall notify

12  the treating doctor of the requirements of this section.

13         5.  The carrier shall pay the employee impairment

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

15         6.  The division may by rule specify forms and

16  procedures governing the method of payment of wage loss and

17  impairment benefits for dates of accidents before January 1,

18  1994, and for dates of accidents on or after January 1, 1994.

19         (b)  Supplemental benefits.--

20         1.  All supplemental benefits must be paid in

21  accordance with this subsection. An employee is entitled to

22  supplemental benefits as provided in this paragraph as of the

23  expiration of the impairment period, if:

24         a.  The employee has an impairment rating from the

25  compensable injury of 20 percent or more as determined

26  pursuant to this chapter;

27         b.  The employee has not returned to work or has

28  returned to work earning less than 80 percent of the

29  employee's average weekly wage as a direct result of the

30  employee's impairment; and

31

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  1         c.  The employee has in good faith attempted to obtain

  2  employment commensurate with the employee's ability to work.

  3         2.  If an employee is not entitled to supplemental

  4  benefits at the time of payment of the final weekly impairment

  5  income benefit because the employee is earning at least 80

  6  percent of the employee's average weekly wage, the employee

  7  may become entitled to supplemental benefits at any time

  8  within 1 year after the impairment income benefit period ends

  9  if:

10         a.  The employee earns wages that are less than 80

11  percent of the employee's average weekly wage for a period of

12  at least 90 days;

13         b.  The employee meets the other requirements of

14  subparagraph 1.; and

15         c.  The employee's decrease in earnings is a direct

16  result of the employee's impairment from the compensable

17  injury.

18         3.  If an employee earns wages that are at least 80

19  percent of the employee's average weekly wage for a period of

20  at least 90 days during which the employee is receiving

21  supplemental benefits, the employee ceases to be entitled to

22  supplemental benefits for the filing period. Supplemental

23  benefits that have been terminated shall be reinstated when

24  the employee satisfies the conditions enumerated in

25  subparagraph 2. and files the statement required under

26  subparagraph 5. Notwithstanding any other provision, if an

27  employee is not entitled to supplemental benefits for 12

28  consecutive months, the employee ceases to be entitled to any

29  additional income benefits for the compensable injury. If the

30  employee is discharged within 12 months after losing

31  entitlement under this subsection, benefits may be reinstated

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  1  if the employee was discharged at that time with the intent to

  2  deprive the employee of supplemental benefits.

  3         4.  During the period that impairment income benefits

  4  or supplemental income benefits are being paid, the carrier

  5  has the affirmative duty to determine at least annually

  6  whether any extended unemployment or underemployment is a

  7  direct result of the employee's impairment. To accomplish this

  8  purpose, the division may require periodic reports from the

  9  employee and the carrier, and it may, at the carrier's

10  expense, require any physical or other examinations,

11  vocational assessments, or other tests or diagnoses necessary

12  to verify that the carrier is performing its duty. Not more

13  than once in each 12 calendar months, the employee and the

14  carrier may each request that the division review the status

15  of the employee and determine whether the carrier has

16  performed its duty with respect to whether the employee's

17  unemployment or underemployment is a direct result of

18  impairment from the compensable injury.

19         5.  After the initial determination of supplemental

20  benefits, the employee must file a statement with the carrier

21  stating that the employee has earned less than 80 percent of

22  the employee's average weekly wage as a direct result of the

23  employee's impairment, stating the amount of wages the

24  employee earned in the filing period, and stating that the

25  employee has in good faith sought employment commensurate with

26  the employee's ability to work. The statement must be filed

27  quarterly on a form and in the manner prescribed by the

28  division. The division may modify the filing period as

29  appropriate to an individual case. Failure to file a statement

30  relieves the carrier of liability for supplemental benefits

31  for the period during which a statement is not filed.

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  1         6.  The carrier shall begin payment of supplemental

  2  benefits not later than the seventh day after the expiration

  3  date of the impairment income benefit period and shall

  4  continue to timely pay those benefits. The carrier may request

  5  a mediation conference for the purpose of contesting the

  6  employee's entitlement to or the amount of supplemental income

  7  benefits.

  8         7.  Supplemental benefits are calculated quarterly and

  9  paid monthly. For purposes of calculating supplemental

10  benefits, 80 percent of the employee's average weekly wage and

11  the average wages the employee has earned per week are

12  compared quarterly. For purposes of this paragraph, if the

13  employee is offered a bona fide position of employment that

14  the employee is capable of performing, given the physical

15  condition of the employee and the geographic accessibility of

16  the position, the employee's weekly wages are considered

17  equivalent to the weekly wages for the position offered to the

18  employee.

19         8.  Supplemental benefits are payable at the rate of 80

20  percent of the difference between 80 percent of the employee's

21  average weekly wage determined pursuant to s. 440.14 and the

22  weekly wages the employee has earned during the reporting

23  period, not to exceed the maximum weekly income benefit under

24  s. 440.12.

25         9.  The division may by rule define terms that are

26  necessary for the administration of this section and forms and

27  procedures governing the method of payment of supplemental

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

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

30         (c)  Duration of temporary impairment and supplemental

31  income benefits.--The employee's eligibility for temporary

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  1  benefits, impairment income benefits, and supplemental

  2  benefits terminates on the expiration of 401 weeks after the

  3  date of injury. At no time shall an employee be eligible to

  4  receive both permanent and total disability and impairment

  5  benefits.  If an employee is either adjudicated by a judge of

  6  compensation claims or accepted by a carrier as permanently

  7  and totally disabled, the carrier shall be entitled to a

  8  credit for any impairment benefits previously paid.

  9         Section 12.  Subsection (2) of section 440.185, Florida

10  Statutes, is amended to read:

11         440.185  Notice of injury or death; reports; penalties

12  for violations.--

13         (2)  Within 7 days after actual knowledge of injury or

14  death, the employer shall report such injury or death to its

15  carrier, in a format prescribed by the division, and shall

16  provide a copy of such report to the employee or the

17  employee's estate. The report of injury shall contain the

18  following information:

19         (a)  The name, address, and business of the employer;

20         (b)  The name, social security number, street, mailing

21  address, telephone number, and occupation of the employee;

22         (c)  The cause and nature of the injury or death;

23         (d)  The year, month, day, and hour when, and the

24  particular locality where, the injury or death occurred; and

25         (e)  A record of the employee's earnings for the 13

26  weeks before the date of injury; and

27         (f)(e)  Such other information as the division may

28  require by rule.

29

30  The carrier shall, within 14 days after the employer's receipt

31  of the form reporting the injury, file the information

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  1  required by this subsection with the division in Tallahassee.

  2  However, the division may by rule provide for a different

  3  reporting system for those types of injuries which it

  4  determines should be reported in a different manner and for

  5  those cases which involve minor injuries requiring

  6  professional medical attention in which the employee does not

  7  lose more than 7 days of work as a result of the injury and is

  8  able to return to the job immediately after treatment and

  9  resume regular work.

10         Section 13.  Section 440.191, Florida Statutes, is

11  amended to read:

12         440.191  Employee Assistance and Ombudsman Office.--

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

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

15  construed to permit injured employees and employers or the

16  employer's carrier to resolve disagreements without undue

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

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

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

20  carriers, service providers, health care providers, managed

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

22  attempt to resolve disagreements in good faith and to

23  cooperate with the division's efforts to resolve disagreements

24  between the parties. The division may by rule prescribe

25  definitions that are necessary for the effective

26  administration of this section.

27         (b)  An Employee Assistance and Ombudsman Office is

28  created within the Division of Workers' Compensation to inform

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

30  care providers, and managed care arrangements in fulfilling

31  their responsibilities under this chapter. The division may by

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  1  rule specify forms and procedures for administering requests

  2  for assistance provided by this section.

  3         (c)  The Employee Assistance and Ombudsman Office,

  4  Division of Workers' Compensation, shall be a resource

  5  available to all employees who participate in the workers'

  6  compensation system and shall take all steps necessary to

  7  educate and disseminate information to employees and

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

  9  Employee Assistance and Ombudsman Office is authorized to

10  initiate contact with the injured employee or employee's

11  representative to discuss rights and responsibilities of the

12  employee under this chapter and the services available through

13  the Employee Assistance and Ombudsman Office.

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

15  any benefit under this chapter unless the employee has

16  exhausted the procedures for informal dispute resolution under

17  this section.

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

19  fails to provide benefits to which the employee believes she

20  or he is entitled, the employee may shall contact the office

21  to request assistance in resolving the dispute. The office may

22  shall investigate the dispute and shall attempt to facilitate

23  an agreement between the employee and the employer or carrier.

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

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

26  documents or other information that it may require in

27  connection with its efforts under this section.

28         (b)(c)  The office may request compel parties to attend

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

30  disputes quickly and in the most efficient manner possible.

31  Settlement agreements resulting from such conferences must be

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  1  submitted to the Office of the Judges of Compensation Claims

  2  for approval.

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

  4  may assign an ombudsman to assist the employee in resolving

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

  6  after the employee contacts the office, The ombudsman may

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

  8  drafting a petition for benefits and explain the procedures

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

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

11  Assistance and Ombudsman Office may not represent employees

12  before the judges of compensation claims. An employer or

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

14  employee for services rendered or costs incurred in connection

15  with this section, unless expressly authorized elsewhere in

16  this chapter.

17         Section 14.  Subsections (1), (2), (5), (7), and (8) of

18  section 440.192, Florida Statutes, are amended, and subsection

19  (9) is added to said section, to read:

20         440.192  Procedure for resolving benefit disputes.--

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

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

23  entitled under this chapter shall file by certified mail, or

24  by electronic means approved by the Deputy Chief Judge, with

25  the Office of the Judges of Compensation Claims a petition for

26  benefits which meets the requirements of this section.  The

27  division shall inform employees of the location of the Office

28  of the Judges of Compensation Claims for purposes of filing a

29  petition for benefits.  The employee shall also serve copies

30  of the petition for benefits by certified mail, or by

31  electronic means approved by the Deputy Chief Judge, upon the

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  1  employer, and the employer's carrier, and the Office of the

  2  Judges of Compensation Claims. The Deputy Chief Judge shall

  3  refer the petitions to the judges of compensation claims.

  4         (2)  Upon receipt of a petition, the Office of the

  5  Judges of Compensation Claims shall review each petition and

  6  shall dismiss each petition or any portion of such a petition,

  7  upon the judge's own motion or upon the motion of any party,

  8  that does not on its face specifically identify or itemize the

  9  following:

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

11  security number of the employee.

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

13  employer.

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

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

16  date or dates of the accident.

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

18  responsibilities, and work the employee was performing when

19  the injury occurred.

20         (e)  The time period for which compensation and the

21  specific classification of compensation were not timely

22  provided.

23         (f)  Date of maximum medical improvement, character of

24  disability, and specific statement of all benefits or

25  compensation that the employee is seeking.

26         (g)  All specific travel costs to which the employee

27  believes she or he is entitled, including dates of travel and

28  purpose of travel, means of transportation, and mileage and

29  including the date the request for mileage was filed with the

30  carrier and a copy of the request filed with the carrier.

31

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  1         (h)  Specific listing of all medical charges alleged

  2  unpaid, including the name and address of the medical

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

  4  treatment.

  5         (i)  The type or nature of treatment care or attendance

  6  sought and the justification for such treatment. If the

  7  employee is under the care of a physician for the injury

  8  identified under paragraph (c), a copy of the physician's

  9  request, authorization, or recommendation for treatment, care,

10  or attendance must accompany the petition.

11         (j)  Specific explanation of any other disputed issue

12  that a judge of compensation claims will be called to rule

13  upon.

14         (k)  Any other information and documentation the Deputy

15  Chief Judge may require by rule.

16

17  The dismissal of any petition or portion of such a petition

18  under this section is without prejudice and does not require a

19  hearing.

20         (5)  All motions to dismiss must state with

21  particularity the basis for the motion. The judge of

22  compensation claims shall enter an order upon such motions

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

24  any petition or portion of a petition is dismissed for lack of

25  specificity under this subsection, the claimant must be

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

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

28  for lack of specificity under this section which are not

29  asserted within 45 30 days after receipt of the petition for

30  benefits are thereby waived.

31

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

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

  3  payable by the carrier for services expended or costs incurred

  4  prior to the filing of a petition that does not meeting meet

  5  the requirements of this section.

  6         (8)  Within 30 14 days after receipt of a petition for

  7  benefits by certified mail, the carrier must either pay the

  8  requested benefits without prejudice to its right to deny

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

10  response to petition with the Office of the Judges of

11  Compensation Claims. The carrier must list all benefits

12  requested but not paid and explain its justification for

13  nonpayment in the response to petition. A carrier that does

14  not deny compensability in accordance with s. 440.20(4) is

15  deemed to have accepted the employee's injuries as

16  compensable, unless it can establish material facts relevant

17  to the issue of compensability that could not have been

18  discovered through reasonable investigation within the 120-day

19  period. The carrier shall provide copies of the response to

20  the filing party, employer, and claimant by certified mail.

21         (9)  Unless stipulated to in writing by the parties,

22  only claims which have been properly raised by a petition for

23  benefits and have undergone mediation may be considered for

24  adjudication by a judge of compensation claims.

25         Section 15.  Subsection (11) of section 440.20, Florida

26  Statutes, is amended to read:

27         440.20  Time for payment of compensation; penalties for

28  late payment.--

29         (11)(a)  When a claimant is not represented by counsel,

30  upon joint petition of all interested parties, a lump-sum

31  payment in exchange for the employer's or carrier's release

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  1  from liability for future medical expenses, as well as future

  2  payments of compensation expenses and any other benefits

  3  provided under this chapter, shall be allowed at any time in

  4  any case in which the employer or carrier has filed a written

  5  notice of denial within 120 days after the employer receives

  6  notice of the injury, and the judge of compensation claims at

  7  a hearing to consider the settlement proposal finds a

  8  justiciable controversy as to legal or medical compensability

  9  of the claimed injury or the alleged accident.  The employer

10  or carrier may not pay any attorney's fees on behalf of the

11  claimant for any settlement under this section unless

12  expressly authorized elsewhere in this chapter. Upon the joint

13  petition of all interested parties and after giving due

14  consideration to the interests of all interested parties, the

15  judge of compensation claims may enter a compensation order

16  approving and authorizing the discharge of the liability of

17  the employer for compensation and remedial treatment, care,

18  and attendance, as well as rehabilitation expenses, by the

19  payment of a lump sum. The judge of compensation claims shall

20  not approve settlement proposals, including any stipulations

21  or agreements between the parties or between a claimant and

22  his or her attorney related to a settlement, which provide for

23  an attorney's fee in excess of the amount permitted in s.

24  440.34. Such a compensation order so entered upon joint

25  petition of all interested parties is not subject to

26  modification or review under s. 440.28. If the settlement

27  proposal together with supporting evidence is not approved by

28  the judge of compensation claims, it shall be considered void.

29  Upon approval of a lump-sum settlement under this subsection,

30  the judge of compensation claims shall send a report to the

31  Chief Judge of the amount of the settlement and a statement of

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  1  the nature of the controversy. The Chief Judge shall keep a

  2  record of all such reports filed by each judge of compensation

  3  claims and shall submit to the Legislature a summary of all

  4  such reports filed under this subsection annually by September

  5  15.

  6         (b)  When a claimant is not represented by counsel,

  7  upon joint petition of all interested parties, a lump-sum

  8  payment in exchange for the employer's or carrier's release

  9  from liability for future medical expenses, as well as future

10  payments of compensation and rehabilitation expenses, and any

11  other benefits provided under this chapter, may be allowed at

12  any time in any case after the injured employee has attained

13  maximum medical improvement. An employer or carrier may not

14  pay any attorney's fees on behalf of the claimant for any

15  settlement, unless expressly authorized elsewhere in this

16  chapter. The judge of compensation claims shall not approve

17  settlement proposals, including any stipulations or agreements

18  between the parties or between a claimant and his or her

19  attorney related to the settlement proposal, which provide for

20  an attorney's fee in excess of the amount permitted in s.

21  440.34. A compensation order so entered upon joint petition of

22  all interested parties shall not be subject to modification or

23  review under s. 440.28. However, a judge of compensation

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

25  payment when it is determined by the judge of compensation

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

27  of benefits the claimant would be entitled to under this

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

29  to be made such investigations as she or he considers

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

31  that a proposed final settlement of liability of the employer

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  1  for compensation shall not be subject to modification or

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

  3  disposition will definitely aid the rehabilitation of the

  4  injured worker or otherwise is clearly for the best interests

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

  6  discretion, may have an investigation made by the

  7  Rehabilitation Section of the Division of Workers'

  8  Compensation. The joint petition and the report of any

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

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

11  pursuant to this subsection which relates to the discharge of

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

13  hearing. The carrier shall provide reasonable notice to the

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

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

16  probability of the death of the injured employee or other

17  person entitled to compensation before the expiration of the

18  period during which such person is entitled to compensation

19  shall, in the absence of special circumstances making such

20  course improper, be determined in accordance with the most

21  recent United States Life Tables published by the National

22  Office of Vital Statistics of the United States Department of

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

24  any other contingency affecting the amount or duration of the

25  compensation, except the possibility of the remarriage of a

26  surviving spouse, shall be disregarded. As a condition of

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

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

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

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

31  unaccrued future payments so paid may be recovered or recouped

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  1  by the employer or carrier. Such applications shall be

  2  considered and determined in accordance with s. 440.25.

  3         (c)  Notwithstanding s. 440.21(2), when a claimant is

  4  represented by counsel, the claimant may waive all rights to

  5  any and all benefits under this chapter by entering into a

  6  settlement agreement releasing the employer and the carrier

  7  from liability for workers' compensation benefits in exchange

  8  for a lump-sum payment to the claimant. Upon written request

  9  of the claimant, the judge of compensation claims shall

10  approve the settlement agreement if, in the discretion of the

11  judge of compensation claims, the settlement agreement is in

12  the best interest of the claimant.  If the claimant does not

13  request in writing the approval of the settlement agreement by

14  the judge of compensation claims, 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. If the claimant has requested in writing approval of

18  the settlement by the judge of compensation claims, the judge

19  of compensation claims may require additional information from

20  the parties in support of the settlement to determine that the

21  settlement is in the best interest of the claimant.  If the

22  claimant has not requested in writing approval by the judge of

23  compensation claims, the parties need not submit any

24  information or documentation in support of the settlement,

25  except as needed to justify the amount of the attorney's fees.

26  Neither the employer nor the carrier is responsible for any

27  attorney's fees relating to the settlement and release of

28  claims under this section. Payment of the lump-sum settlement

29  amount must be made within 14 days after the date the judge of

30  compensation claims mails the order approving the attorney's

31  fees. Any order entered by a judge of compensation claims

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  1  approving the attorney's fees as set out in the settlement

  2  under this subsection is not considered to be an award and is

  3  not subject to modification or review. The judge of

  4  compensation claims shall report these settlements to the

  5  Deputy Chief Judge in accordance with the requirements set

  6  forth in paragraphs (a) and (b). Settlements entered into

  7  under this subsection are valid and apply to all dates of

  8  accident.

  9         (d)1.  With respect to any lump-sum settlement under

10  this subsection, a judge of compensation claims must consider

11  at the time of the settlement, whether the settlement

12  allocation provides for the appropriate recovery of child

13  support arrearages. Neither the employer nor the carrier has a

14  duty to investigate or collect information regarding child

15  support arrearages.

16         2.  When reviewing any settlement of lump-sum payment

17  pursuant to this subsection, judges of compensation claims

18  shall consider the interests of the worker and the worker's

19  family when approving the settlement, which must consider and

20  provide for appropriate recovery of past due support.

21         (e)  This section applies to all claims that the

22  parties have not previously settled, regardless of the date of

23  accident.

24         Section 16.  Subsections (1), (3), and (4) of section

25  440.25, Florida Statutes, are amended to read:

26         440.25  Procedures for mediation and hearings.--

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

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

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

30  filed, the judge of compensation claims shall notify the

31  interested parties by order requiring mediation that a

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  1  mediation conference concerning such petition will be held

  2  unless the parties have provided the Office of the Judges of

  3  Compensation Claims with a copy of the private mediation

  4  report showing that a mediation pursuant to subparagraph

  5  (3)(b)1. or subparagraph (3)(b)2. has been held concerning

  6  such petition. Such order requiring mediation notice shall

  7  give the date by which, time, and location of the mediation

  8  conference must be held and shall. Such notice may be served

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

10  interested parties by mail. Continuances may be granted only

11  if the requesting party demonstrates to the judge of

12  compensation claims that the reason for requesting the

13  continuance arises from circumstances beyond the party's

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

15  date of the rescheduled mediation conference. A mediation

16  conference may not be used solely to mediate attorney's fees.

17  Claimants residing 60 or more miles from the site of the

18  mediation, or the claimant or the adjuster of the employer or

19  carrier whose principal place of employment is 60 or more

20  miles from the site of the mediation, may, at the mediator's

21  discretion, attend the mediation conference by telephone or,

22  if agreed to by the parties, other electronic means. Claimants

23  residing less than 60 miles from the site of the mediation, or

24  the adjuster of the employer or carrier whose principal place

25  of employment is less than 60 miles from the site of the

26  mediation, may attend the mediation conference only by

27  telephone or, if agreed to by the parties, other electronic

28  means at the mediator's discretion and for good cause shown.

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

30  informally and shall does not require the use of formal rules

31  of evidence or procedure. Any information from the files,

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

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

  3  mediation conference under this section obtained by any person

  4  performing mediation duties is privileged and confidential and

  5  may not be disclosed without the written consent of all

  6  parties to the conference. Any research or evaluation effort

  7  directed at assessing the mediation program activities or

  8  performance must protect the confidentiality of such

  9  information. Each party to a mediation conference has a

10  privilege during and after the conference to refuse to

11  disclose and to prevent another from disclosing communications

12  made during the conference whether or not the contested issues

13  are successfully resolved. This subsection and paragraphs

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

15  the discovery or admissibility of any information that is

16  otherwise subject to discovery or that is admissible under

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

18  or statements made during a mediation conference or in

19  negotiations concerning the conference are inadmissible in any

20  proceeding under this chapter.

21         (b)1.  Unless the parties conduct a private mediation

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

23  mediator selected by the Deputy Chief Judge from among

24  mediators The Director of the Division of Administrative

25  Hearings shall select a mediator. The mediator shall be

26  employed on a full-time basis by the Office of the Judges of

27  Compensation Claims. A mediator must be a member of The

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

29  training program approved by the Director of the Division of

30  Administrative Hearings. Adjunct mediators may be employed by

31  the Office of the Judges of Compensation Claims on an

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  1  as-needed basis and shall be selected from a list prepared by

  2  the Director of the Division of Administrative Hearings. An

  3  adjunct mediator must be independent of all parties

  4  participating in the mediation conference. An adjunct mediator

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

  6  must complete a mediation training program approved by the

  7  Director of the Division of Administrative Hearings.  An

  8  adjunct mediator shall have access to the office, equipment,

  9  and supplies of the judge of compensation claims in each

10  district.

11         2.  If the parties agree or if no mediators under

12  subparagraph 1. are available to conduct the required

13  mediation within the period specified in this section, the

14  parties shall hold a mediation conference at the employer's or

15  carrier's expense within the 90-day period set for mediation.

16  The mediation conference shall be conducted by a mediator

17  certified under s. 44.106 as a circuit court mediator under

18  Rule 10.100(c) of the Florida Rules of Certified and Court

19  Appointed Mediators. If the parties do not agree upon a

20  mediator or a date of mediation within 10 days after the date

21  of the order requiring mediation as set forth in subsection

22  (1), the claimant shall notify the judge in writing and the

23  judge shall appoint a mediator meeting the requirements of

24  this subparagraph within 7 days.

25         3.  Mediations under subparagraph 2. are considered a

26  private mediation substituting for a state mediation and the

27  private mediator and parties are bound by the applicable rules

28  and laws regarding initial mandatory state mediation,

29  including the filing of a mediation report under Rule 4.370 of

30  the Florida Rules of Certified and Court Appointed Mediators

31  by the mediator and the rules concerning continuances under

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  1  subsection (1). Nothing in this section shall be construed to

  2  restrict the rights of parties to voluntarily mediate cases

  3  privately, with or without a pending petition for benefits,

  4  with no intention to substitute for the initial mandatory

  5  mediation, in which case the requirements of this subparagraph

  6  do not apply and an impasse does not trigger the setting of a

  7  hearing.

  8         4.  In the event both parties agree to the results of

  9  the mediation conference, the results of the mediation

10  conference shall be binding and neither party shall have a

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

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

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

14  witnesses, and evidence presented at the conference shall not

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

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

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

18  compensation claims. The employer may be represented by an

19  attorney at the mediation conference if the employee is also

20  represented by an attorney at the mediation conference.

21         (c)  The parties shall complete and file the pretrial

22  stipulations at the conclusion of the mediation conference if

23  any claims in any filed petition, except for attorney's fees

24  and costs, have not been settled and remain unresolved.  It is

25  the responsibility of the parties, not the mediator, to file

26  the pretrial stipulation. If the mediation conference is not

27  conducted at the Office of the Judges of Compensation Claims,

28  the parties shall mail the pretrial stipulations to the

29  judge's office on the same day the conference is held

30  following the mediation conference. The judge of compensation

31  claims may sanction a party or both parties for failure to

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  1  complete the pretrial stipulations before the conclusion of

  2  the mediation conference.

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

  4  submission of pretrial stipulations at the mediation

  5  conference, on the 10th day following commencement of

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

  7  the judge of compensation claims shall order hold a pretrial

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

  9  mediation. The judge of compensation claims shall give the

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

11  pretrial hearing by mail. At the pretrial hearing, the judge

12  of compensation claims shall, subject to paragraph (b), set a

13  date for the final hearing that allows the parties at least 30

14  days to conduct discovery unless the parties consent to an

15  earlier hearing date.

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

17  within 90 45 days after the mediation conference is held

18  pretrial hearing. Continuances may be granted only if the

19  requesting party demonstrates to the judge of compensation

20  claims that the reason for requesting the continuance arises

21  from circumstances beyond the party's control. Any order

22  granting a continuance must set forth the date and time of the

23  rescheduled hearing. If a judge of compensation claims grants

24  two or more continuances to a requesting party, the judge of

25  compensation claims shall report such continuances to the

26  Deputy Chief Judge. The written consent of the claimant must

27  be obtained before any request is granted for an additional

28  continuance after the initial continuance has been granted.

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

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

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

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

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

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

  4  unless otherwise agreed to between the parties and authorized

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

  6  injury occurred. If the injury occurred outside without the

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

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

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

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

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

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

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

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

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

16  merits of the disputed issues. The judge of compensation

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

18  compensability is not disputed. Either party may request

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

20  such hearing, the claimant and employer may each present

21  evidence in respect of the claims presented by the petition

22  for benefits such claim and may be represented by any attorney

23  authorized in writing for such purpose. When there is a

24  conflict in the medical evidence submitted at the hearing, the

25  provisions of s. 440.13 shall apply. The report or testimony

26  of the expert medical advisor shall be made a part of the

27  record of the proceeding and shall be given the same

28  consideration by the judge of compensation claims as is

29  accorded other medical evidence submitted in the proceeding;

30  and all costs incurred in connection with such examination and

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

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

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

  3  that is greater than the greatest permanent impairment rating

  4  given the claimant by any examining or treating physician,

  5  except upon stipulation of 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 Judges of Compensation Claims at Tallahassee. A

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

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

14  each, with the date of mailing noted thereon.

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

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

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

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

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

20  the Division of Administrative Hearings and shall contain the

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

22  involved and a brief explanation by the judge of compensation

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

24  order.

25         (g)  Notwithstanding any other provision of this

26  section, the judge of compensation claims may require the

27  appearance of the parties and counsel before her or him

28  without written notice for an emergency conference where there

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

30  welfare of an employee. An emergency conference under this

31

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

  2  of an adjudication by the judge of compensation claims.

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

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

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

  6  the resolution of appropriate motions by judges of

  7  compensation claims without oral hearing upon submission of

  8  brief written statements in support and opposition, and for

  9  expedited discovery and docketing.

10         (i)  To further expedite dispute resolution and to

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

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

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

14  compelling evidence to the contrary, be presumed to be

15  appropriate for expedited resolution under this paragraph; and

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

17  written agreement of both parties and application by either

18  party, may similarly be resolved under this paragraph. For

19  purposes of expedited resolution pursuant to this paragraph,

20  the Deputy Chief Judge shall make provision by rule or order

21  for expedited and limited discovery and expedited docketing in

22  such cases. At least 15 days prior to hearing, the parties

23  shall exchange and file with the judge of compensation claims

24  a pretrial outline of all issues, defenses, and witnesses on a

25  form adopted by the Deputy Chief Judge; provided, in no event

26  shall such hearing be held without 15 days' written notice to

27  all parties. No pretrial hearing shall be held. The judge of

28  compensation claims shall limit all argument and presentation

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

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

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

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

  2  qualified representative. The employer or carrier and any

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

  4  evidence shall be liberally construed in favor of allowing

  5  introduction of evidence.

  6         (j)  A judge of compensation claims, either upon the

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

  8  petition for lack of prosecution if no petitions, responses,

  9  motions, orders, requests for hearings, or notices of

10  deposition have been filed for a period of 12 months, unless

11  good cause is shown. Dismissals for lack of prosecution are

12  without prejudice and do not require a hearing.

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

14  interest on unpaid medical bills, nor may the amount of such

15  bills be used to calculate the amount of interest awarded.

16         (l)1.  Two or more opposing parties who are involved in

17  a workers' compensation dispute may agree in writing to submit

18  the controversy to voluntary binding dispute resolution in

19  lieu of litigation of the issues involved after the filing of

20  the petition for benefits, provided no constitutional issue is

21  involved.

22         2.  If the parties have entered into an agreement which

23  provides, in the voluntary binding dispute resolution, a

24  method for appointing a member of The Florida Bar, in good

25  standing for more than 5 years, to act as a judge in the

26  voluntary binding dispute resolution, the judge of

27  compensation claims shall proceed with the appointment as

28  prescribed. The judge in the voluntary binding dispute

29  resolution shall be compensated by the parties according to

30  the parties' agreement and may administer oaths or

31  affirmations and conduct the proceedings as provided by the

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  1  rules of court. At the request of any party, the judge in the

  2  voluntary binding dispute resolution shall issue subpoenas for

  3  the attendance of witnesses and for the production of books,

  4  records, documents, and other evidence which may apply to the

  5  court for orders compelling attendance and production.

  6  Subpoenas shall be served and shall be enforced in the manner

  7  provided by law. The judge in the voluntary binding dispute

  8  resolution shall notify the parties of the time and the place

  9  for the voluntary binding dispute resolution hearing, shall

10  conduct the hearing, may determine any questions or issues,

11  and shall render a final decision.

12         3.  The workers' compensation rules of procedure shall

13  apply to all proceedings under this paragraph.

14         4.  Filing the agreement and application for voluntary

15  binding dispute resolution does toll the running of the

16  applicable statutes of limitation.

17         5.  Notwithstanding any other provisions of this

18  section, disputes submitted to voluntary binding dispute

19  resolution under this paragraph are not subject to mandatory

20  mediation.

21         6.  The judge in the voluntary binding dispute

22  resolution shall render a compensation order as defined in s.

23  440.25(4)(e) determining the disputed issues. The compensation

24  order is subject to enforcement and appeal in the same manner

25  as a compensation order entered by a judge of compensation

26  claims.

27

28  Regardless of the date benefits were initially requested,

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

30  days from the date the carrier or employer, if self-insured,

31  receives the petition.

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  1         Section 17.  Subsection (4) of section 440.29, Florida

  2  Statutes, is amended to read:

  3         440.29  Procedure before the judge of compensation

  4  claims.--

  5         (4)  All medical reports of authorized treating health

  6  care providers or independent medical examiners, whose medical

  7  opinion is submitted under s. 440.13(5)(e), relating to the

  8  claimant and subject accident shall be received into evidence

  9  by the judge of compensation claims upon proper motion.

10  However, such records must be served on the opposing party at

11  least 30 days before the final hearing. This section does not

12  limit any right of further discovery, including, but not

13  limited to, depositions.

14         Section 18.  Subsections (1) and (3) of section 440.34,

15  Florida Statutes, are amended to read:

16         440.34  Attorney's fees; costs.--

17         (1)  A fee, gratuity, or other consideration may not be

18  paid for services rendered for a claimant in connection with

19  any proceedings arising under this chapter, unless approved as

20  reasonable by the judge of compensation claims or court having

21  jurisdiction over such proceedings. Except as provided by this

22  subsection, any attorney's fee approved by a judge of

23  compensation claims for services rendered to a claimant shall

24  be must equal to 20 percent of the first $5,000 of the amount

25  of the benefits secured, ordered, or agreed to by the parties,

26  15 percent of the next $5,000 of the amount of the benefits

27  secured, 10 percent of the remaining amount of the benefits

28  secured to be provided during the first 10 years after the

29  date the claim is filed, and 5 percent of the benefits secured

30  after 10 years. However, The judge of compensation claims may

31  approve an additional attorney's fee not to exceed $2,000,

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  1  based upon a reasonable hourly rate, if the judge of

  2  compensation claims expressly finds that the fee, based upon

  3  the total benefits secured, fails to fairly compensate the

  4  attorney and the benefits secured are less than $10,000. Only

  5  in proceedings in which a carrier or employer denies that an

  6  injury occurred for which compensation benefits are payable,

  7  and the claimant prevails on the issue of compensability, in

  8  addition to an attorney's fee equal to 20 percent of the

  9  benefits secured, the judge of compensation claims may award a

10  reasonable hourly rate attorney's fee, not to exceed $5,000,

11  if the judge of compensation claims expressly finds that the

12  attorney's fee, based on the benefits secured, fails to fairly

13  compensate the attorney and shall consider the following

14  factors in each case and may increase or decrease the

15  attorney's fee if, in her or his judgment, the circumstances

16  of the particular case warrant such action.  The judge of

17  compensation claims shall not approve a compensation order, a

18  joint stipulation for lump-sum settlement, a stipulation or

19  agreement between a claimant and his or her attorney, or any

20  other agreement related to benefits under this chapter that

21  provides for an attorney's fee in excess of the amount

22  permitted by this section.:

23         (a)  The time and labor required, the novelty and

24  difficulty of the questions involved, and the skill requisite

25  to perform the legal service properly.

26         (b)  The fee customarily charged in the locality for

27  similar legal services.

28         (c)  The amount involved in the controversy and the

29  benefits resulting to the claimant.

30         (d)  The time limitation imposed by the claimant or the

31  circumstances.

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  1         (e)  The experience, reputation, and ability of the

  2  lawyer or lawyers performing services.

  3         (f)  The contingency or certainty of a fee.

  4         (3)  If any party the claimant should prevail in any

  5  proceedings before a judge of compensation claims or court,

  6  there shall be taxed against the nonprevailing party employer

  7  the reasonable costs of such proceedings, not to include the

  8  attorney's fees of the claimant. A claimant shall be

  9  responsible for the payment of her or his own attorney's fees,

10  except that a claimant shall be entitled to recover a

11  reasonable attorney's fee from a carrier or employer:

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

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

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

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

16  benefits, arising out of the same accident; or

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

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

19  Judges of Compensation Claims and the injured person has

20  employed an attorney in the successful prosecution of the

21  claim; or

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

23  denies that an injury occurred for which compensation benefits

24  are payable, and the claimant prevails on the issue of

25  compensability; or

26         (d)  In cases where the claimant successfully prevails

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

28

29  Regardless of the date benefits were initially requested,

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

31  30 days from the date the carrier or employer, if

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

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

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

  4  only consider only such benefits and the time reasonably spent

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

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

  7         Section 19.  Section 440.345, Florida Statutes, is

  8  amended to read:

  9         440.345  Reporting of attorney's fees.--All fees paid

10  to attorneys for services rendered under this chapter shall be

11  reported to the Office of the Judges of Compensation Claims as

12  the Office of the Judges of Compensation Claims requires by

13  rule. The Office of the Judges of Compensation Claims shall

14  annually summarize the such data in a report to the Governor,

15  the President of the Senate, the Speaker of the House of

16  Representatives, and the Workers' Compensation Oversight

17  Board.

18         Section 20.  Subsection (8) is added to section 440.39,

19  Florida Statutes, to read:

20         440.39  Compensation for injuries when third persons

21  are liable.--

22         (8)  This section does not impose on the carrier a duty

23  to preserve evidence pertaining to the industrial accident or

24  to injuries arising from such accident.

25         Section 21.  Effective July 1, 2002, subsection (6) is

26  added to section 440.45, Florida Statutes, to read:

27         440.45  Office of the Judges of Compensation Claims.--

28         (6)  Each full-time judge of compensation claims shall

29  receive a salary in an amount equal to $5,000 less than the

30  salary paid to a county court judge.  The Deputy Chief Judge

31  shall receive a salary of $1,000 more per year than the salary

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  1  paid to a full-time judge of compensation claims. These

  2  salaries shall be paid out of the fund established in s.

  3  440.50.

  4         Section 22.  Paragraph (b) of subsection (6) of section

  5  440.491, Florida Statutes, is amended to read:

  6         440.491  Reemployment of injured workers;

  7  rehabilitation.--

  8         (6)  TRAINING AND EDUCATION.--

  9         (b)  When it appears that an employee who has attained

10  maximum medical improvement requires training and education to

11  obtain suitable gainful employment, the employer shall pay the

12  employee additional temporary total compensation while the

13  employee receives such training and education for a period not

14  to exceed 26 weeks, which period may be extended for an

15  additional 26 weeks or less, if such extended period is

16  determined to be necessary and proper by a judge of

17  compensation claims. However, a carrier or employer is not

18  precluded from voluntarily paying additional temporary total

19  disability compensation beyond that period. If an employee

20  requires temporary residence at or near a facility or an

21  institution providing training and education which is located

22  more than 50 miles away from the employee's customary

23  residence, the reasonable cost of board, lodging, or travel

24  must be borne by the division from the Workers' Compensation

25  Administration Trust Fund established by s. 440.50. An

26  employee who refuses to accept training and education that is

27  recommended by the vocational evaluator and considered

28  necessary by the division is subject to a 50-percent reduction

29  in weekly compensation benefits, including wage-loss benefits,

30  as determined under s. 440.15(3)(b).

31

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  1         Section 23.  The amendments to ss. 440.02 and 440.15,

  2  Florida Statutes, in this act shall not be construed to affect

  3  any determination of disability under s. 112.18, s. 112.181,

  4  or s. 112.19, Florida Statutes.

  5         Section 24.  If any provision of this act or its

  6  application to any person or circumstance is held invalid, the

  7  invalidity does not affect other provisions or applications of

  8  the act which can be given effect without the invalid

  9  provision or application, and to this end the provisions of

10  this act are declared severable.

11         Section 25.  Except as otherwise provided herein, this

12  act shall take effect January 1, 2003.

13

14            *****************************************

15                          HOUSE SUMMARY

16
      Revises various workers' compensation provisions relating
17    to the duty of an employer to furnish medical treatment,
      workers' compensation managed care arrangements, and
18    compensation for disability, notice of injury or death,
      the Employee Assistance and Ombudsman Office, procedures
19    for resolving benefit disputes, penalties for late
      payment of compensation, procedures for mediation and
20    hearings, procedures before judges of compensation
      claims, attorney's fees and costs, reporting of
21    attorney's fees, and rate filings. See bill for details.

22

23

24

25

26

27

28

29

30

31

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