Senate Bill sb0050Aer
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1
2 An act relating to workers' compensation;
3 amending s. 440.02, F.S.; providing, revising,
4 and deleting definitions; amending s. 440.05,
5 F.S.; revising authorization to claim
6 exemptions and requirements relating to
7 submitting notice of election of exemption;
8 specifying effect of exemption; providing a
9 definition; amending s. 440.06, F.S.; revising
10 provisions relating to failure to secure
11 compensation; amending s. 440.077, F.S.;
12 providing that a corporate officer electing to
13 be exempt may not receive benefits; amending s.
14 440.09, F.S.; revising provisions relating to
15 compensation for subsequent injuries; providing
16 definitions; revising provisions relating to
17 drug testing; specifying effect of criminal
18 acts; creating s. 440.093, F.S.; providing for
19 compensability of mental and nervous injuries;
20 amending s. 440.10, F.S.; revising provisions
21 relating to contractors and subcontractors with
22 regard to liability for compensation; requiring
23 subcontractors to provide evidence of workers'
24 compensation coverage or proof of exemption to
25 a contractor; deleting provisions relating to
26 independent contractors; amending s. 440.1025,
27 F.S.; revising requirements relating to
28 workplace safety programs; amending s. 440.103,
29 F.S.; providing conditions for applying for
30 building permits; amending s. 440.105, F.S.;
31 increasing criminal penalties for certain
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1 violations; providing sanctions for violation
2 of stop-work orders and presentation of certain
3 false or misleading statements as evidence;
4 amending s. 440.1051, F.S.; increasing criminal
5 penalty for false reports; amending s. 440.107,
6 F.S.; providing additional powers to the
7 Department of Financial Services relating to
8 compliance and enforcement; providing a
9 definition; providing penalties; amending s.
10 440.11, F.S.; providing exclusiveness of
11 liability; revising provisions relating to
12 employer and safety consultant immunity from
13 liability; amending s. 440.13, F.S.; providing
14 for practice parameters and treatment
15 protocols; revising provisions relating to
16 provider reimbursement; requiring revision of
17 specified reimbursement schedules; providing
18 for release of information; providing
19 additional criteria for independent medical
20 examinations; providing a definition; providing
21 standards for medical care under ch. 440, F.S.;
22 providing penalties; amending s. 440.134, F.S.;
23 revising provisions relating to managed care
24 arrangements; revising definitions; providing
25 for assignment of a medical care coordinator;
26 amending s. 440.14, F.S.; revising provisions
27 relating to calculation of average weekly wage
28 for injured employees; conforming
29 cross-references; amending s. 440.15, F.S.;
30 providing additional limitations on
31 compensation for permanent total disability;
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1 providing a definition; specifying impairment
2 benefits and providing for partial reduction
3 under certain circumstances; deleting
4 provisions relating to supplemental benefits;
5 amending s. 440.151, F.S.; specifying
6 compensability of occupational disease;
7 providing a definition; amending s. 440.16,
8 F.S.; increasing the limits on the amount of
9 certain benefits paid as compensation for
10 death; amending s. 440.185, F.S.; specifying
11 duty of employer upon receipt of notice of
12 injury or death; increasing penalties for
13 noncompliance; amending s. 440.192, F.S.;
14 revising procedure for resolving benefit
15 disputes; requiring a petition for benefits to
16 include all claims which are ripe, due, and
17 owing; providing that the Chief Judge, rather
18 than the Deputy Chief Judge, shall refer
19 petitions for benefits; creating s. 440.1926,
20 F.S.; providing for alternative dispute
21 resolution and arbitration of claims; amending
22 s. 440.20, F.S.; revising provisions relating
23 to timely payment of compensation and medical
24 bills and penalties for late payment;
25 prohibiting the clerk of the circuit court from
26 assessing certain fees or costs; amending s.
27 440.25, F.S.; revising procedures for mediation
28 and hearings; amending s. 440.34, F.S.;
29 revising provisions relating to the award of
30 attorney's fees; amending s. 440.38, F.S.;
31 providing requirement for employers with
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1 coverage provided by insurers from outside the
2 state; amending s. 440.381, F.S.; providing
3 criminal penalty for unlawful applications;
4 requiring on-site audits of employers under
5 certain circumstances; amending s. 440.42,
6 F.S.; revising provision relating to notice of
7 cancellation of coverage; amending s. 440.49,
8 F.S., to conform cross-references; amending s.
9 440.491, F.S.; providing training and education
10 requirements and benefits relating to
11 reemployment of injured workers; providing for
12 rules; amending s. 440.525, F.S.; providing for
13 the Office of Insurance Regulation of the
14 Financial Services Commission to conduct
15 examinations and investigations of
16 claims-handling entities; providing penalties;
17 providing for rules; amending s. 627.162, F.S.;
18 revising delinquency and collection fee for
19 late payment of premium installments; creating
20 s. 627.285, F.S.; providing for annual
21 actuarial peer review of rating organization
22 processes; requiring a report; amending s.
23 627.311, F.S.; revising membership of the board
24 of governors of the workers' compensation joint
25 underwriting plan; requiring participation in
26 safety programs; providing for an additional
27 subplan within the joint underwriting plan for
28 workers' compensation insurance; providing for
29 rates, surcharges, and assessments; limiting
30 assessment powers; amending s. 921.0022, F.S.;
31 revising the offense severity ranking chart to
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1 reflect changes in penalties under the act;
2 requiring a report to the Legislature from the
3 Department of Financial Services regarding
4 provisions of law relating to enforcement;
5 amending ss. 946.523 and 985.315, F.S., to
6 conform cross-references; establishing a Joint
7 Select Committee on Workers' Compensation
8 Rating Reform and specifying duties thereof;
9 providing for termination of the committee;
10 requiring the board of governors of the
11 workers' compensation joint underwriting plan
12 to submit a report to the Legislature; amending
13 s. 443.1715, F.S.; revising provisions relating
14 to records and reports; providing for
15 disclosure of specified information; amending
16 s. 625.989, F.S.; providing that the Department
17 of Financial Services shall prepare an annual
18 report relating to workers' compensation fraud
19 and compliance; amending s. 626.9891, F.S.;
20 amending reporting requirements for insurers;
21 providing penalties for noncompliance;
22 providing for rules; repealing s. 440.1925,
23 F.S., relating to procedure for resolving
24 maximum medical improvement or permanent
25 impairment disputes; amending ss. 112.19 and
26 112.191, F.S., to conform references to changes
27 made by the act; providing that amendments to
28 ss. 440.02 and 440.15, F.S., do not affect
29 certain disability, determination, and
30 benefits; providing for construction of the act
31 in pari materia with laws enacted during the
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1 2003 Regular Session of the Legislature;
2 providing effective dates.
3
4 Be It Enacted by the Legislature of the State of Florida:
5
6 Section 1. Effective upon this act becoming a law,
7 subsections (1), (15), (29), (38), (39), (40), (41), and (42)
8 of section 440.02, Florida Statutes, are amended to read:
9 440.02 Definitions.--When used in this chapter, unless
10 the context clearly requires otherwise, the following terms
11 shall have the following meanings:
12 (1) "Accident" means only an unexpected or unusual
13 event or result that happens suddenly. A mental or nervous
14 injury due to stress, fright, or excitement only, or
15 Disability or death due to the accidental acceleration or
16 aggravation of a venereal disease or of a disease due to the
17 habitual use of alcohol or controlled substances or narcotic
18 drugs, or a disease that manifests itself in the fear of or
19 dislike for an individual because of the individual's race,
20 color, religion, sex, national origin, age, or handicap is not
21 an injury by accident arising out of the employment. Subject
22 to s. 440.15(5), if a preexisting disease or anomaly is
23 accelerated or aggravated by an accident arising out of and in
24 the course of employment, only acceleration of death or
25 acceleration or aggravation of the preexisting condition
26 reasonably attributable to the accident is compensable, with
27 respect to any compensation otherwise payable under this
28 chapter death or permanent impairment. An injury or disease
29 caused by exposure to a toxic substance, including, but not
30 limited to, fungus or mold, is not an injury by accident
31 arising out of the employment unless there is clear and
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1 convincing evidence establishing that exposure to the specific
2 substance involved, at the levels to which the employee was
3 exposed, can cause the injury or disease sustained by the
4 employee.
5 (15)(a) "Employee" means any person engaged in any
6 employment under any appointment or contract of hire or
7 apprenticeship, express or implied, oral or written, whether
8 lawfully or unlawfully employed, and includes, but is not
9 limited to, aliens and minors.
10 (b) "Employee" includes any person who is an officer
11 of a corporation and who performs services for remuneration
12 for such corporation within this state, whether or not such
13 services are continuous.
14 1. Any officer of a corporation may elect to be exempt
15 from this chapter by filing written notice of the election
16 with the department as provided in s. 440.05.
17 2. As to officers of a corporation who are actively
18 engaged in the construction industry, no more than three
19 officers may elect to be exempt from this chapter by filing
20 written notice of the election with the department as provided
21 in s. 440.05. However, any exemption obtained by a corporate
22 officer of a corporation actively engaged in the construction
23 industry is not applicable with respect to any commercial
24 building project estimated to be valued at $250,000 or
25 greater.
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 department as provided in s. 440.05 is not an
29 employee.
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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 (c)1. "Employee" includes a sole proprietor or a
5 partner who devotes full time to the proprietorship or
6 partnership and, except as provided in this paragraph, elects
7 to be included in the definition of employee by filing notice
8 thereof as provided in s. 440.05. Partners or sole proprietors
9 actively engaged in the construction industry are considered
10 employees unless they elect to be excluded from the definition
11 of employee by filing written notice of the election with the
12 department as provided in s. 440.05. However, no more than
13 three partners in a partnership that is actively engaged in
14 the construction industry may elect to be excluded. A sole
15 proprietor or partner who is actively engaged in the
16 construction industry and who elects to be exempt from this
17 chapter by filing a written notice of the election with the
18 department as provided in s. 440.05 is not an employee. For
19 purposes of this chapter, an independent contractor is an
20 employee unless he or she meets all of the conditions set
21 forth in subparagraph (d)1.
22 2. Notwithstanding the provisions of subparagraph 1.,
23 the term "employee" includes a sole proprietor or partner
24 actively engaged in the construction industry with respect to
25 any commercial building project estimated to be valued at
26 $250,000 or greater. Any exemption obtained is not applicable,
27 with respect to work performed at such a commercial building
28 project.
29 (d) "Employee" does not include:
30 1. An independent contractor, if:
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1 a. The independent contractor maintains a separate
2 business with his or her own work facility, truck, equipment,
3 materials, or similar accommodations;
4 b. The independent contractor holds or has applied for
5 a federal employer identification number, unless the
6 independent contractor is a sole proprietor who is not
7 required to obtain a federal employer identification number
8 under state or federal requirements;
9 c. The independent contractor performs or agrees to
10 perform specific services or work for specific amounts of
11 money and controls the means of performing the services or
12 work;
13 d. The independent contractor incurs the principal
14 expenses related to the service or work that he or she
15 performs or agrees to perform;
16 e. The independent contractor is responsible for the
17 satisfactory completion of work or services that he or she
18 performs or agrees to perform and is or could be held liable
19 for a failure to complete the work or services;
20 f. The independent contractor receives compensation
21 for work or services performed for a commission or on a
22 per-job or competitive-bid basis and not on any other basis;
23 g. The independent contractor may realize a profit or
24 suffer a loss in connection with performing work or services;
25 h. The independent contractor has continuing or
26 recurring business liabilities or obligations; and
27 i. The success or failure of the independent
28 contractor's business depends on the relationship of business
29 receipts to expenditures.
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1 However, the determination as to whether an individual
2 included in the Standard Industrial Classification Manual of
3 1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,
4 0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,
5 2448, or 2449, or a newspaper delivery person, is an
6 independent contractor is governed not by the criteria in this
7 paragraph but by common-law principles, giving due
8 consideration to the business activity of the individual.
9 Notwithstanding the provisions of this paragraph or any other
10 provision of this chapter, with respect to any commercial
11 building project estimated to be valued at $250,000 or
12 greater, a person who is actively engaged in the construction
13 industry is not an independent contractor and is either an
14 employer or an employee who may not be exempt from the
15 coverage requirements of this chapter.
16 2. A real estate salesperson or agent, if that person
17 agrees, in writing, to perform for remuneration solely by way
18 of commission.
19 3. Bands, orchestras, and musical and theatrical
20 performers, including disk jockeys, performing in licensed
21 premises as defined in chapter 562, if a written contract
22 evidencing an independent contractor relationship is entered
23 into before the commencement of such entertainment.
24 4. An owner-operator of a motor vehicle who transports
25 property under a written contract with a motor carrier which
26 evidences a relationship by which the owner-operator assumes
27 the responsibility of an employer for the performance of the
28 contract, if the owner-operator is required to furnish the
29 necessary motor vehicle equipment and all costs incidental to
30 the performance of the contract, including, but not limited
31 to, fuel, taxes, licenses, repairs, and hired help; and the
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1 owner-operator is paid a commission for transportation service
2 and is not paid by the hour or on some other time-measured
3 basis.
4 5. A person whose employment is both casual and not in
5 the course of the trade, business, profession, or occupation
6 of the employer.
7 6. A volunteer, except a volunteer worker for the
8 state or a county, municipality, or other governmental entity.
9 A person who does not receive monetary remuneration for
10 services is presumed to be a volunteer unless there is
11 substantial evidence that a valuable consideration was
12 intended by both employer and employee. For purposes of this
13 chapter, the term "volunteer" includes, but is not limited to:
14 a. Persons who serve in private nonprofit agencies and
15 who receive no compensation other than expenses in an amount
16 less than or equivalent to the standard mileage and per-diem
17 expenses provided to salaried employees in the same agency or,
18 if such agency does not have salaried employees who receive
19 mileage and per diem, then such volunteers who receive no
20 compensation other than expenses in an amount less than or
21 equivalent to the customary mileage and per diem paid to
22 salaried workers in the community as determined by the
23 department; and
24 b. Volunteers participating in federal programs
25 established under Pub. L. No. 93-113.
26 7. Any officer of a corporation who elects to be
27 exempt from this chapter.
28 8. A sole proprietor or officer of a corporation who
29 actively engages in the construction industry, and a partner
30 in a partnership that is actively engaged in the construction
31 industry, who elects to be exempt from the provisions of this
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1 chapter. Such sole proprietor, officer, or partner is not an
2 employee for any reason until the notice of revocation of
3 election filed pursuant to s. 440.05 is effective.
4 9. An exercise rider who does not work for a single
5 horse farm or breeder, and who is compensated for riding on a
6 case-by-case basis, provided a written contract is entered
7 into prior to the commencement of such activity which
8 evidences that an employee/employer relationship does not
9 exist.
10 10. A taxicab, limousine, or other passenger
11 vehicle-for-hire driver who operates said vehicles pursuant to
12 a written agreement with a company which provides any
13 dispatch, marketing, insurance, communications, or other
14 services under which the driver and any fees or charges paid
15 by the driver to the company for such services are not
16 conditioned upon, or expressed as a proportion of, fare
17 revenues.
18 11. A person who performs services as a sports
19 official for an entity sponsoring an interscholastic sports
20 event or for a public entity or private, nonprofit
21 organization that sponsors an amateur sports event. For
22 purposes of this subparagraph, such a person is an independent
23 contractor. For purposes of this subparagraph, the term
24 "sports official" means any person who is a neutral
25 participant in a sports event, including, but not limited to,
26 umpires, referees, judges, linespersons, scorekeepers, or
27 timekeepers. This subparagraph does not apply to any person
28 employed by a district school board who serves as a sports
29 official as required by the employing school board or who
30 serves as a sports official as part of his or her
31 responsibilities during normal school hours.
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1 (29) "Weekly compensation rate" means and refers to
2 the amount of compensation payable for a period of 7
3 consecutive calendar days, including any Saturdays, Sundays,
4 holidays, and other nonworking days which fall within such
5 period of 7 consecutive calendar days. When Saturdays,
6 Sundays, holidays, or other nonworking days immediately follow
7 the first 7 calendar days of disability or occur at the end of
8 a period of disability as the last day or days of such period,
9 such nonworking days constitute a part of the period of
10 disability with respect to which compensation is payable.
11 (38) "Catastrophic injury" means a permanent
12 impairment constituted by:
13 (a) Spinal cord injury involving severe paralysis of
14 an arm, a leg, or the trunk;
15 (b) Amputation of an arm, a hand, a foot, or a leg
16 involving the effective loss of use of that appendage;
17 (c) Severe brain or closed-head injury as evidenced
18 by:
19 1. Severe sensory or motor disturbances;
20 2. Severe communication disturbances;
21 3. Severe complex integrated disturbances of cerebral
22 function;
23 4. Severe episodic neurological disorders; or
24 5. Other severe brain and closed-head injury
25 conditions at least as severe in nature as any condition
26 provided in subparagraphs 1.-4.;
27 (d) Second-degree or third-degree burns of 25 percent
28 or more of the total body surface or third-degree burns of 5
29 percent or more to the face and hands;
30 (e) Total or industrial blindness; or
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1 (f) Any other injury that would otherwise qualify under
2 this chapter of a nature and severity that would qualify an
3 employee to receive disability income benefits under Title II
4 or supplemental security income benefits under Title XVI of
5 the federal Social Security Act as the Social Security Act
6 existed on July 1, 1992, without regard to any time
7 limitations provided under that act.
8 (38)(39) "Insurer" means a group self-insurers' fund
9 authorized by s. 624.4621, an individual self-insurer
10 authorized by s. 440.38, a commercial self-insurance fund
11 authorized by s. 624.462, an assessable mutual insurer
12 authorized by s. 628.6011, and an insurer licensed to write
13 workers' compensation and employer's liability insurance in
14 this state. The term "carrier," as used in this chapter, means
15 an insurer as defined in this subsection.
16 (39)(40) "Statement," for the purposes of ss. 440.105
17 and 440.106, shall include the exact fraud statement language
18 in s. 440.105(7). This requirement includes, but is not
19 limited to, any notice, representation, statement, proof of
20 injury, bill for services, diagnosis, prescription, hospital
21 or doctor record, X ray, test result, or other evidence of
22 loss, injury, or expense.
23 (40)(41) "Specificity" means information on the
24 petition for benefits sufficient to put the employer or
25 carrier on notice of the exact statutory classification and
26 outstanding time period of benefits being requested and
27 includes a detailed explanation of any benefits received that
28 should be increased, decreased, changed, or otherwise
29 modified. If the petition is for medical benefits, the
30 information shall include specific details as to why such
31 benefits are being requested, why such benefits are medically
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1 necessary, and why current treatment, if any, is not
2 sufficient. Any petition requesting alternate or other medical
3 care, including, but not limited to, petitions requesting
4 psychiatric or psychological treatment, must specifically
5 identify the physician, as defined in s. 440.13(1), that is
6 recommending such treatment. A copy of a report from such
7 physician making the recommendation for alternate or other
8 medical care shall also be attached to the petition. A judge
9 of compensation claims shall not order such treatment if a
10 physician is not recommending such treatment. "Commercial
11 building" means any building or structure intended for
12 commercial or industrial use, or any building or structure
13 intended for multifamily use of more than four dwelling units,
14 as well as any accessory use structures constructed in
15 conjunction with the principal structure. The term,
16 "commercial building," does not include the conversion of any
17 existing residential building to a commercial building.
18 (42) "Residential building" means any building or
19 structure intended for residential use containing four or
20 fewer dwelling units and any structures intended as an
21 accessory use to the residential structure.
22 Section 2. Effective January 1, 2004, subsections (8),
23 (15), and (16) of section 440.02, Florida Statutes, as amended
24 by this act, are amended to read:
25 440.02 Definitions.--When used in this chapter, unless
26 the context clearly requires otherwise, the following terms
27 shall have the following meanings:
28 (8) "Construction industry" means for-profit
29 activities involving the carrying out of any building,
30 clearing, filling, excavation, or substantial improvement in
31 the size or use of any structure or the appearance of any
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1 land. When appropriate to the context, "construction" refers
2 to the act of construction or the result of construction.
3 However, "construction" does shall not mean a homeowner's
4 landowner's act of construction or the result of a
5 construction upon his or her own premises, provided such
6 premises are not intended to be sold, or resold, or leased by
7 the owner within 1 year after the commencement of
8 construction. The division may, by rule, establish standard
9 industrial classification codes and definitions thereof which
10 meet the criteria of the term "construction industry" as set
11 forth in this section.
12 (15)(a) "Employee" means any person who receives
13 remuneration from an employer for the performance of any work
14 or service while engaged in any employment under any
15 appointment or contract for of hire or apprenticeship, express
16 or implied, oral or written, whether lawfully or unlawfully
17 employed, and includes, but is not limited to, aliens and
18 minors.
19 (b) "Employee" includes any person who is an officer
20 of a corporation and who performs services for remuneration
21 for such corporation within this state, whether or not such
22 services are continuous.
23 1. Any officer of a corporation may elect to be exempt
24 from this chapter by filing written notice of the election
25 with the department as provided in s. 440.05.
26 2. As to officers of a corporation who are actively
27 engaged in the construction industry, no more than three
28 officers of a corporation or of any group of affiliated
29 corporations may elect to be exempt from this chapter by
30 filing written notice of the election with the department as
31 provided in s. 440.05. Officers must be shareholders, each
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1 owning at least 10 percent of the stock of such corporation
2 and listed as an officer of such corporation with the Division
3 of Corporations of the Department of State, in order to elect
4 exemptions under this chapter. For purposes of this
5 subparagraph, the term "affiliated" means and includes one or
6 more corporations or entities, any one of which is a
7 corporation engaged in the construction industry, under the
8 same or substantially the same control of a group of business
9 entities which are connected or associated so that one entity
10 controls or has the power to control each of the other
11 business entities. The term "affiliated" includes, but is not
12 limited to, the officers, directors, executives, shareholders
13 active in management, employees, and agents of the affiliated
14 corporation. The ownership by one business entity of a
15 controlling interest in another business entity or a pooling
16 of equipment or income among business entities shall be prima
17 facie evidence that one business is affiliated with the other.
18 3. An officer of a corporation who elects to be exempt
19 from this chapter by filing a written notice of the election
20 with the department as provided in s. 440.05 is not an
21 employee.
22
23 Services are presumed to have been rendered to the corporation
24 if the officer is compensated by other than dividends upon
25 shares of stock of the corporation which the officer owns.
26 (c) "Employee" includes:
27 1. A sole proprietor or a partner who is not engaged
28 in the construction industry, devotes full time to the
29 proprietorship or partnership, and, except as provided in this
30 paragraph, elects to be included in the definition of employee
31 by filing notice thereof as provided in s. 440.05. Partners or
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1 sole proprietors actively engaged in the construction industry
2 are considered employees unless they elect to be excluded from
3 the definition of employee by filing written notice of the
4 election with the department as provided in s. 440.05.
5 However, no more than three partners in a partnership that is
6 actively engaged in the construction industry may elect to be
7 excluded. A sole proprietor or partner who is actively engaged
8 in the construction industry and who elects to be exempt from
9 this chapter by filing a written notice of the election with
10 the department as provided in s. 440.05 is not an employee.
11 For purposes of this chapter, an independent contractor is an
12 employee unless he or she meets all of the conditions set
13 forth in subparagraph (d)1.
14 2. All persons who are being paid by a construction
15 contractor as a subcontractor, unless the subcontractor has
16 validly elected an exemption as permitted by this chapter, or
17 has otherwise secured the payment of compensation coverage as
18 a subcontractor, consistent with s. 440.10, for work performed
19 by or as a subcontractor.
20 3. An independent contractor working or performing
21 services in the construction industry.
22 4. A sole proprietor who engages in the construction
23 industry and a partner or partnership that is engaged in the
24 construction industry.
25 (d) "Employee" does not include:
26 1. An independent contractor who is not engaged in the
27 construction industry., if:
28 a. In order to meet the definition of independent
29 contractor, at least four of the following criteria must be
30 met:
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1 (I) The independent contractor maintains a separate
2 business with his or her own work facility, truck, equipment,
3 materials, or similar accommodations;
4 (II) The independent contractor holds or has applied
5 for a federal employer identification number, unless the
6 independent contractor is a sole proprietor who is not
7 required to obtain a federal employer identification number
8 under state or federal regulations;
9 (III) The independent contractor receives compensation
10 for services rendered or work performed and such compensation
11 is paid to a business rather than to an individual;
12 (IV) The independent contractor holds one or more bank
13 accounts in the name of the business entity for purposes of
14 paying business expenses or other expenses related to services
15 rendered or work performed for compensation;
16 (V) The independent contractor performs work or is
17 able to perform work for any entity in addition to or besides
18 the employer at his or her own election without the necessity
19 of completing an employment application or process; or
20 (VI) The independent contractor receives compensation
21 for work or services rendered on a competitive-bid basis or
22 completion of a task or a set of tasks as defined by a
23 contractual agreement, unless such contractual agreement
24 expressly states that an employment relationship exists. The
25 independent contractor maintains a separate business with his
26 or her own work facility, truck, equipment, materials, or
27 similar accommodations;
28 b. If four of the criteria listed in sub-subparagraph
29 a. do not exist, an individual may still be presumed to be an
30 independent contractor and not an employee based on full
31
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1 consideration of the nature of the individual situation with
2 regard to satisfying any of the following conditions:
3 (I) The independent contractor performs or agrees to
4 perform specific services or work for a specific amount of
5 money and controls the means of performing the services or
6 work.
7 (II) The independent contractor incurs the principal
8 expenses related to the service or work that he or she
9 performs or agrees to perform.
10 (III) The independent contractor is responsible for
11 the satisfactory completion of the work or services that he or
12 she performs or agrees to perform.
13 (IV) The independent contractor receives compensation
14 for work or services performed for a commission or on a
15 per-job basis and not on any other basis.
16 (V) The independent contractor may realize a profit or
17 suffer a loss in connection with performing work or services.
18 (VI) The independent contractor has continuing or
19 recurring business liabilities or obligations.
20 (VII) The success or failure of the independent
21 contractor's business depends on the relationship of business
22 receipts to expenditures. The independent contractor holds or
23 has applied for a federal employer identification number,
24 unless the independent contractor is a sole proprietor who is
25 not required to obtain a federal employer identification
26 number under state or federal requirements;
27 c. Notwithstanding anything to the contrary in this
28 subparagraph, an individual claiming to be an independent
29 contractor has the burden of proving that he or she is an
30 independent contractor for purposes of this chapter. The
31 independent contractor performs or agrees to perform specific
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1 services or work for specific amounts of money and controls
2 the means of performing the services or work;
3 d. The independent contractor incurs the principal
4 expenses related to the service or work that he or she
5 performs or agrees to perform;
6 e. The independent contractor is responsible for the
7 satisfactory completion of work or services that he or she
8 performs or agrees to perform and is or could be held liable
9 for a failure to complete the work or services;
10 f. The independent contractor receives compensation
11 for work or services performed for a commission or on a
12 per-job or competitive-bid basis and not on any other basis;
13 g. The independent contractor may realize a profit or
14 suffer a loss in connection with performing work or services;
15 h. The independent contractor has continuing or
16 recurring business liabilities or obligations; and
17 i. The success or failure of the independent
18 contractor's business depends on the relationship of business
19 receipts to expenditures.
20
21 However, the determination as to whether an individual
22 included in the Standard Industrial Classification Manual of
23 1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,
24 0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,
25 2448, or 2449, or a newspaper delivery person, is an
26 independent contractor is governed not by the criteria in this
27 paragraph but by common-law principles, giving due
28 consideration to the business activity of the individual.
29 2. A real estate salesperson or agent, if that person
30 agrees, in writing, to perform for remuneration solely by way
31 of commission.
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1 3. Bands, orchestras, and musical and theatrical
2 performers, including disk jockeys, performing in licensed
3 premises as defined in chapter 562, if a written contract
4 evidencing an independent contractor relationship is entered
5 into before the commencement of such entertainment.
6 4. An owner-operator of a motor vehicle who transports
7 property under a written contract with a motor carrier which
8 evidences a relationship by which the owner-operator assumes
9 the responsibility of an employer for the performance of the
10 contract, if the owner-operator is required to furnish the
11 necessary motor vehicle equipment and all costs incidental to
12 the performance of the contract, including, but not limited
13 to, fuel, taxes, licenses, repairs, and hired help; and the
14 owner-operator is paid a commission for transportation service
15 and is not paid by the hour or on some other time-measured
16 basis.
17 5. A person whose employment is both casual and not in
18 the course of the trade, business, profession, or occupation
19 of the employer.
20 6. A volunteer, except a volunteer worker for the
21 state or a county, municipality, or other governmental entity.
22 A person who does not receive monetary remuneration for
23 services is presumed to be a volunteer unless there is
24 substantial evidence that a valuable consideration was
25 intended by both employer and employee. For purposes of this
26 chapter, the term "volunteer" includes, but is not limited to:
27 a. Persons who serve in private nonprofit agencies and
28 who receive no compensation other than expenses in an amount
29 less than or equivalent to the standard mileage and per diem
30 expenses provided to salaried employees in the same agency or,
31 if such agency does not have salaried employees who receive
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1 mileage and per diem, then such volunteers who receive no
2 compensation other than expenses in an amount less than or
3 equivalent to the customary mileage and per diem paid to
4 salaried workers in the community as determined by the
5 department; and
6 b. Volunteers participating in federal programs
7 established under Pub. L. No. 93-113.
8 7. Unless otherwise prohibited by this chapter, any
9 officer of a corporation who elects to be exempt from this
10 chapter. Such officer is not an employee for any reason under
11 this chapter until the notice of revocation of election filed
12 pursuant to s. 440.05 is effective.
13 8. An a sole proprietor or officer of a corporation
14 who actively engages in the construction industry, and a
15 partner in a partnership that is actively engaged in the
16 construction industry, who elects to be exempt from the
17 provisions of this chapter, as otherwise permitted by this
18 chapter. Such sole proprietor, officer, or partner is not an
19 employee for any reason until the notice of revocation of
20 election filed pursuant to s. 440.05 is effective.
21 9. An exercise rider who does not work for a single
22 horse farm or breeder, and who is compensated for riding on a
23 case-by-case basis, provided a written contract is entered
24 into prior to the commencement of such activity which
25 evidences that an employee/employer relationship does not
26 exist.
27 10. A taxicab, limousine, or other passenger
28 vehicle-for-hire driver who operates said vehicles pursuant to
29 a written agreement with a company which provides any
30 dispatch, marketing, insurance, communications, or other
31 services under which the driver and any fees or charges paid
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1 by the driver to the company for such services are not
2 conditioned upon, or expressed as a proportion of, fare
3 revenues.
4 11. A person who performs services as a sports
5 official for an entity sponsoring an interscholastic sports
6 event or for a public entity or private, nonprofit
7 organization that sponsors an amateur sports event. For
8 purposes of this subparagraph, such a person is an independent
9 contractor. For purposes of this subparagraph, the term
10 "sports official" means any person who is a neutral
11 participant in a sports event, including, but not limited to,
12 umpires, referees, judges, linespersons, scorekeepers, or
13 timekeepers. This subparagraph does not apply to any person
14 employed by a district school board who serves as a sports
15 official as required by the employing school board or who
16 serves as a sports official as part of his or her
17 responsibilities during normal school hours.
18 12. Medicaid-enrolled clients under chapter 393 who
19 are excluded from the definition of employment under s.
20 443.036(21)(d)5. and served by Adult Day Training Services
21 under the Home and Community-Based Medicaid Waiver program in
22 a sheltered workshop setting licensed by the United States
23 Department of Labor for the purpose of training and earning
24 less than the federal hourly minimum wage.
25 (16)(a) "Employer" means the state and all political
26 subdivisions thereof, all public and quasi-public corporations
27 therein, every person carrying on any employment, and the
28 legal representative of a deceased person or the receiver or
29 trustees of any person. "Employer" also includes employment
30 agencies, employee leasing companies, and similar agents who
31 provide employees to other persons. If the employer is a
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1 corporation, parties in actual control of the corporation,
2 including, but not limited to, the president, officers who
3 exercise broad corporate powers, directors, and all
4 shareholders who directly or indirectly own a controlling
5 interest in the corporation, are considered the employer for
6 the purposes of ss. 440.105, and 440.106, and 440.107.
7 (b) A homeowner shall not be considered the employer
8 of persons hired by the homeowner to carry out construction on
9 the homeowner's own premises if those premises are not
10 intended for immediate lease, sale, or resale.
11 (c) Facilities serving individuals under subparagraph
12 (15)(d)12. shall be considered agents of the Agency for Health
13 Care Administration as it relates to providing Adult Day
14 Training Services under the Home and Community-Based Medicaid
15 Waiver program and not employers or third parties for the
16 purpose of limiting or denying Medicaid benefits.
17 Section 3. Effective January 1, 2004, subsections (3),
18 (4), (6), (10), (11), and (12) of section 440.05, Florida
19 Statutes, are amended, present subsection (13) is renumbered
20 as subsection (11) and amended, and new subsections (12),
21 (13), (14), and (15) are added to said section, to read:
22 440.05 Election of exemption; revocation of election;
23 notice; certification.--
24 (3) Each sole proprietor, partner, or officer of a
25 corporation who is actively engaged in the construction
26 industry and who elects an exemption from this chapter or who,
27 after electing such exemption, revokes that exemption, must
28 mail a written notice to such effect to the department on a
29 form prescribed by the department. The notice of election to
30 be exempt from the provisions of this chapter must be
31 notarized and under oath. The notice of election to be exempt
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1 which is submitted to the department by the sole proprietor,
2 partner, or officer of a corporation who is allowed to claim
3 an exemption as provided by this chapter must list the name,
4 federal tax identification number, social security number, all
5 certified or registered licenses issued pursuant to chapter
6 489 held by the person seeking the exemption, a copy of
7 relevant documentation as to employment status filed with the
8 Internal Revenue Service as specified by the department, a
9 copy of the relevant occupational license in the primary
10 jurisdiction of the business, and, for corporate officers and
11 partners, the registration number of the corporation or
12 partnership filed with the Division of Corporations of the
13 Department of State along with a copy of the stock certificate
14 evidencing the required ownership under this chapter. The
15 notice of election to be exempt must identify each sole
16 proprietorship, partnership, or corporation that employs the
17 person electing the exemption and must list the social
18 security number or federal tax identification number of each
19 such employer and the additional documentation required by
20 this section. In addition, the notice of election to be exempt
21 must provide that the sole proprietor, partner, or officer
22 electing an exemption is not entitled to benefits under this
23 chapter, must provide that the election does not exceed
24 exemption limits for officers and partnerships provided in s.
25 440.02, and must certify that any employees of the corporation
26 whose sole proprietor, partner, or officer elects electing an
27 exemption are covered by workers' compensation insurance. Upon
28 receipt of the notice of the election to be exempt, receipt of
29 all application fees, and a determination by the department
30 that the notice meets the requirements of this subsection, the
31 department shall issue a certification of the election to the
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1 sole proprietor, partner, or officer, unless the department
2 determines that the information contained in the notice is
3 invalid. The department shall revoke a certificate of election
4 to be exempt from coverage upon a determination by the
5 department that the person does not meet the requirements for
6 exemption or that the information contained in the notice of
7 election to be exempt is invalid. The certificate of election
8 must list the name names of the sole proprietorship,
9 partnership, or corporation listed in the request for
10 exemption. A new certificate of election must be obtained each
11 time the person is employed by a new sole proprietorship,
12 partnership, or different corporation that is not listed on
13 the certificate of election. A copy of the certificate of
14 election must be sent to each workers' compensation carrier
15 identified in the request for exemption. Upon filing a notice
16 of revocation of election, an a sole proprietor, partner, or
17 officer who is a subcontractor or an officer of a corporate
18 subcontractor must notify her or his contractor. Upon
19 revocation of a certificate of election of exemption by the
20 department, the department shall notify the workers'
21 compensation carriers identified in the request for exemption.
22 (4) The notice of election to be exempt from the
23 provisions of this chapter must contain a notice that clearly
24 states in substance the following: "Any person who, knowingly
25 and with intent to injure, defraud, or deceive the department
26 or any employer or employee, insurance company, or any other
27 person purposes program, files a notice of election to be
28 exempt containing any false or misleading information is
29 guilty of a felony of the third degree." Each person filing a
30 notice of election to be exempt shall personally sign the
31
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1 notice and attest that he or she has reviewed, understands,
2 and acknowledges the foregoing notice.
3 (6) A construction industry certificate of election to
4 be exempt which is issued in accordance with this section
5 shall be valid for 2 years after the effective date stated
6 thereon. Both the effective date and the expiration date must
7 be listed on the face of the certificate by the department.
8 The construction industry certificate must expire at midnight,
9 2 years from its issue date, as noted on the face of the
10 exemption certificate. Any person who has received from the
11 division a construction industry certificate of election to be
12 exempt which is in effect on December 31, 1998, shall file a
13 new notice of election to be exempt by the last day in his or
14 her birth month following December 1, 1998. A construction
15 industry certificate of election to be exempt may be revoked
16 before its expiration by the sole proprietor, partner, or
17 officer for whom it was issued or by the department for the
18 reasons stated in this section. At least 60 days prior to the
19 expiration date of a construction industry certificate of
20 exemption issued after December 1, 1998, the department shall
21 send notice of the expiration date and an application for
22 renewal to the certificateholder at the address on the
23 certificate.
24 (10) Each sole proprietor, partner, or officer of a
25 corporation who is actively engaged in the construction
26 industry and who elects an exemption from this chapter shall
27 maintain business records as specified by the division by
28 rule, which rules must include the provision that any
29 corporation with exempt officers and any partnership actively
30 engaged in the construction industry with exempt partners must
31 maintain written statements of those exempted persons
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1 affirmatively acknowledging each such individual's exempt
2 status.
3 (11) Any sole proprietor or partner actively engaged
4 in the construction industry claiming an exemption under this
5 section shall maintain a copy of his or her federal income tax
6 records for each of the immediately previous 3 years in which
7 he or she claims an exemption. Such federal income tax records
8 must include a complete copy of the following for each year in
9 which an exemption is claimed:
10 (a) For sole proprietors, a copy of Federal Income Tax
11 Form 1040 and its accompanying Schedule C;
12 (b) For partners, a copy of the partner's Federal
13 Income Tax Schedule K-1 (Form 1065) and Federal Income Tax
14 Form 1040 and its accompanying Schedule E.
15
16 A sole proprietor or partner shall produce, upon request by
17 the division, a copy of those documents together with a
18 statement by the sole proprietor or partner that the tax
19 records provided are true and accurate copies of what the sole
20 proprietor or partner has filed with the federal Internal
21 Revenue Service. The statement must be signed under oath by
22 the sole proprietor or partner and must be notarized. The
23 division shall issue a stop-work order under s. 440.107(5) to
24 any sole proprietor or partner who fails or refuses to produce
25 a copy of the tax records and affidavit required under this
26 paragraph to the division within 3 business days after the
27 request is made.
28 (12) For those sole proprietors or partners that have
29 not been in business long enough to provide the information
30 required of an established business, the division shall
31 require such sole proprietor or partner to provide copies of
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1 the most recently filed Federal Income Tax Form 1040. The
2 division shall establish by rule such other criteria to show
3 that the sole proprietor or partner intends to engage in a
4 legitimate enterprise within the construction industry and is
5 not otherwise attempting to evade the requirements of this
6 section. The division shall establish by rule the form and
7 format of financial information required to be submitted by
8 such employers.
9 (11)(13) Any corporate officer permitted by this
10 chapter to claim claiming an exemption under this section must
11 be listed on the records of this state's Secretary of State,
12 Division of Corporations, as a corporate officer. If the
13 person who claims an exemption as a corporate officer is not
14 so listed on the records of the Secretary of State, the
15 individual must provide to the division, upon request by the
16 division, a notarized affidavit stating that the individual is
17 a bona fide officer of the corporation and stating the date
18 his or her appointment or election as a corporate officer
19 became or will become effective. The statement must be signed
20 under oath by both the officer and the president or chief
21 operating officer of the corporation and must be notarized.
22 The division shall issue a stop-work order under s. 440.107(1)
23 to any corporation who employs a person who claims to be
24 exempt as a corporate officer but who fails or refuses to
25 produce the documents required under this subsection to the
26 division within 3 business days after the request is made.
27 (12) Certificates of election to be exempt issued
28 under subsection (3) shall apply only to the corporate officer
29 named on the notice of election to be exempt and apply only
30 within the scope of the business or trade listed on the notice
31 of election to be exempt.
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1 (13) Notices of election to be exempt and certificates
2 of election to be exempt shall be subject to revocation if, at
3 any time after the filing of the notice or the issuance of the
4 certificate, the person named on the notice or certificate no
5 longer meets the requirements of this section for issuance of
6 a certificate. The department shall revoke a certificate at
7 any time for failure of the person named on the certificate to
8 meet the requirements of this section.
9 (14) An officer of a corporation who elects exemption
10 from this chapter by filing a certificate of election under
11 this section may not recover benefits or compensation under
12 this chapter. For purposes of determining the appropriate
13 premium for workers' compensation coverage, carriers may not
14 consider any officer of a corporation who validly meets the
15 requirements of this section to be an employee.
16 (15) Any corporate officer who is an affiliated person
17 of a person who is delinquent in paying a stop-work order and
18 penalty assessment order issued pursuant to s. 440.107, or
19 owed pursuant to a court order, is ineligible for an election
20 of exemption. The stop-work order and penalty assessment shall
21 be in effect against any such affiliated person. As used in
22 this subsection, the term "affiliated person" means:
23 (a) The spouse of such other person;
24 (b) Any person who directly or indirectly owns or
25 controls, or holds with the power to vote, 10 percent or more
26 of the outstanding voting securities of such other person;
27 (c) Any person who directly or indirectly owns 10
28 percent or more of the outstanding voting securities that are
29 directly or indirectly owned, controlled, or held with the
30 power to vote by such other person;
31
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1 (d) Any person or group of persons who directly or
2 indirectly control, are controlled by, or are under common
3 control with such other person;
4 (e) Any person who directly or indirectly acquires all
5 or substantially all of the other assets of such other person;
6 (f) Any officer, director, trustee, partner, owner,
7 manager, joint venturer, or employee of such other person or a
8 person performing duties similar to persons in such positions;
9 or
10 (g) Any person who has an officer, director, trustee,
11 partner, or joint venturer in common with such person.
12 Section 4. Section 440.06, Florida Statutes, is
13 amended to read:
14 440.06 Failure to secure compensation; effect.--Every
15 employer who fails to secure the payment of compensation , as
16 provided in s. 440.10, by failing to meet the requirements of
17 under this chapter as provided in s. 440.38 may not, in any
18 suit brought against him or her by an employee subject to this
19 chapter to recover damages for injury or death, defend such a
20 suit on the grounds that the injury was caused by the
21 negligence of a fellow servant, that the employee assumed the
22 risk of his or her employment, or that the injury was due to
23 the comparative negligence of the employee.
24 Section 5. Effective January 1, 2004, section 440.077,
25 Florida Statutes, is amended to read:
26 440.077 When a corporate sole proprietor, partner, or
27 officer rejects chapter, effect.--An A sole proprietor,
28 partner, or officer of a corporation who is permitted to elect
29 an exemption under this chapter actively engaged in the
30 construction industry and who elects to be exempt from the
31
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1 provisions of this chapter may not recover benefits under this
2 chapter.
3 Section 6. Subsections (1) and (4) of section 440.09,
4 Florida Statutes, are amended and paragraph (e) is added to
5 subsection (7) of said section, to read:
6 440.09 Coverage.--
7 (1) The employer must shall pay compensation or
8 furnish benefits required by this chapter if the employee
9 suffers an accidental compensable injury or death arising out
10 of work performed in the course and the scope of employment.
11 The injury, its occupational cause, and any resulting
12 manifestations or disability must shall be established to a
13 reasonable degree of medical certainty, based on and by
14 objective relevant medical findings, and the accidental
15 compensable injury must be the major contributing cause of any
16 resulting injuries. For purposes of this section, "major
17 contributing cause" means the cause which is more than 50
18 percent responsible for the injury as compared to all other
19 causes combined for which treatment or benefits are sought. In
20 cases involving occupational disease or repetitive exposure,
21 both causation and sufficient exposure to support causation
22 must be proven by clear and convincing evidence. Pain or other
23 subjective complaints alone, in the absence of objective
24 relevant medical findings, are not compensable. For purposes
25 of this section, "objective relevant medical findings" are
26 those objective findings that correlate to the subjective
27 complaints of the injured employee and are confirmed by
28 physical examination findings or diagnostic testing.
29 Establishment of the causal relationship between a compensable
30 accident and injuries for conditions that are not readily
31 observable must be by medical evidence only, as demonstrated
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1 by physical examination findings or diagnostic testing. Major
2 contributing cause must be demonstrated by medical evidence
3 only. Mental or nervous injuries occurring as a manifestation
4 of an injury compensable under this section shall be
5 demonstrated by clear and convincing evidence.
6 (a) This chapter does not require any compensation or
7 benefits for any subsequent injury the employee suffers as a
8 result of an original injury arising out of and in the course
9 of employment unless the original injury is the major
10 contributing cause of the subsequent injury. Major
11 contributing cause must be demonstrated by medical evidence
12 only.
13 (b) If an injury arising out of and in the course of
14 employment combines with a preexisting disease or condition to
15 cause or prolong disability or need for treatment, the
16 employer must pay compensation or benefits required by this
17 chapter only to the extent that the injury arising out of and
18 in the course of employment is and remains more than 50
19 percent responsible for the injury as compared to all other
20 causes combined and thereafter remains the major contributing
21 cause of the disability or need for treatment. Major
22 contributing cause must be demonstrated by medical evidence
23 only.
24 (c) Death resulting from an operation by a surgeon
25 furnished by the employer for the cure of hernia as required
26 in s. 440.15(6) [F.S. 1981] shall for the purpose of this
27 chapter be considered to be a death resulting from the
28 accident causing the hernia.
29 (d) If an accident happens while the employee is
30 employed elsewhere than in this state, which would entitle the
31 employee or his or her dependents to compensation if it had
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1 happened in this state, the employee or his or her dependents
2 are entitled to compensation if the contract of employment was
3 made in this state, or the employment was principally
4 localized in this state. However, if an employee receives
5 compensation or damages under the laws of any other state, the
6 total compensation for the injury may not be greater than is
7 provided in this chapter.
8 (4)(a) An employee shall not be entitled to
9 compensation or benefits under this chapter if any judge of
10 compensation claims, administrative law judge, court, or jury
11 convened in this state determines that the employee has
12 knowingly or intentionally engaged in any of the acts
13 described in s. 440.105 or any criminal act for the purpose of
14 securing workers' compensation benefits. For purposes of this
15 section, the term "intentional" shall include, but is not
16 limited to, pleas of guilty or nolo contendere in criminal
17 matters. This section shall apply to accidents, regardless of
18 the date of the accident. For injuries occurring prior to
19 January 1, 1994, this section shall pertain to the acts of the
20 employee described in s. 440.105 or criminal activities
21 occurring subsequent to January 1, 1994.
22 (b) A judge of compensation claims, administrative law
23 judge, or court of this state shall take judicial notice of a
24 finding of insurance fraud by a court of competent
25 jurisdiction and terminate or otherwise disallow benefits.
26 (c) Upon the denial of benefits in accordance with
27 this section, a judge of compensation claims shall have the
28 jurisdiction to order any benefits payable to the employee to
29 be paid into the court registry or an escrow account during
30 the pendency of an appeal or until such time as the time in
31 which to file an appeal has expired.
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1 (7)
2 (e) As a part of rebutting any presumptions under
3 paragraph (b), the injured worker must prove the actual
4 quantitative amounts of the drug or its metabolites as
5 measured on the initial and confirmation post-accident drug
6 tests of the injured worker's urine sample and provide
7 additional evidence regarding the absence of drug influence
8 other than the worker's denial of being under the influence of
9 a drug. No drug test conducted on a urine sample shall be
10 rejected as to its results or the presumption imposed under
11 paragraph (b) on the basis of the urine being bodily fluid
12 tested.
13 Section 7. Section 440.093, Florida Statutes, is
14 created to read:
15 440.093 Mental and nervous injuries.--
16 (1) A mental or nervous injury due to stress, fright,
17 or excitement only is not an injury by accident arising out of
18 the employment. Nothing in this section shall be construed to
19 allow for the payment of benefits under this chapter for
20 mental or nervous injuries without an accompanying physical
21 injury requiring medical treatment. A physical injury
22 resulting from mental or nervous injuries unaccompanied by
23 physical trauma requiring medical treatment shall not be
24 compensable under this chapter.
25 (2) Mental or nervous injuries occurring as a
26 manifestation of an injury compensable under this chapter
27 shall be demonstrated by clear and convincing medical evidence
28 by a licensed psychiatrist meeting criteria established in the
29 most recent edition of the diagnostic and statistical manual
30 of mental disorders published by the American Psychiatric
31 Association. The compensable physical injury must be and
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1 remain the major contributing cause of the mental or nervous
2 condition and the compensable physical injury as determined by
3 reasonable medical certainty must be at least 50 percent
4 responsible for the mental or nervous condition as compared to
5 all other contributing causes combined. Compensation is not
6 payable for the mental, psychological, or emotional injury
7 arising out of depression from being out of work or losing
8 employment opportunities, resulting from a preexisting mental,
9 psychological, or emotional condition or due to pain or other
10 subjective complaints that cannot be substantiated by
11 objective, relevant medical findings.
12 (3) Subject to the payment of permanent benefits under
13 s. 440.15, in no event shall temporary benefits for a
14 compensable mental or nervous injury be paid for more than 6
15 months after the date of maximum medical improvement for the
16 injured employee's physical injury or injuries, which shall be
17 included in the period of 104 weeks as provided in s.
18 440.15(2) and (4). Mental or nervous injuries are compensable
19 only in accordance with the terms of this section.
20 Section 8. Effective January 1, 2004, subsection (1)
21 of section 440.10, Florida Statutes, is amended to read:
22 440.10 Liability for compensation.--
23 (1)(a) Every employer coming within the provisions of
24 this chapter, including any brought within the chapter by
25 waiver of exclusion or of exemption, shall be liable for, and
26 shall secure, the payment to his or her employees, or any
27 physician, surgeon, or pharmacist providing services under the
28 provisions of s. 440.13, of the compensation payable under ss.
29 440.13, 440.15, and 440.16. Any contractor or subcontractor
30 who engages in any public or private construction in the state
31
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1 shall secure and maintain compensation for his or her
2 employees under this chapter as provided in s. 440.38.
3 (b) In case a contractor sublets any part or parts of
4 his or her contract work to a subcontractor or subcontractors,
5 all of the employees of such contractor and subcontractor or
6 subcontractors engaged on such contract work shall be deemed
7 to be employed in one and the same business or establishment,;
8 and the contractor shall be liable for, and shall secure, the
9 payment of compensation to all such employees, except to
10 employees of a subcontractor who has secured such payment.
11 (c) A contractor shall may require a subcontractor to
12 provide evidence of workers' compensation insurance or a copy
13 of his or her certificate of election. A subcontractor who is
14 a corporation and has an officer who elects electing to be
15 exempt as permitted under this chapter a sole proprietor,
16 partner, or officer of a corporation shall provide a copy of
17 his or her certificate of exemption election to the
18 contractor.
19 (d)1. If a contractor becomes liable for the payment
20 of compensation to the employees of a subcontractor who has
21 failed to secure such payment in violation of s. 440.38, the
22 contractor or other third-party payor shall be entitled to
23 recover from the subcontractor all benefits paid or payable
24 plus interest unless the contractor and subcontractor have
25 agreed in writing that the contractor will provide coverage.
26 2. If a contractor or third-party payor becomes liable
27 for the payment of compensation to the corporate officer
28 employee of a subcontractor who is actively engaged in the
29 construction industry and has elected to be exempt from the
30 provisions of this chapter, but whose election is invalid, the
31 contractor or third-party payor may recover from the claimant,
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1 partnership, or corporation all benefits paid or payable plus
2 interest, unless the contractor and the subcontractor have
3 agreed in writing that the contractor will provide coverage.
4 (e) A subcontractor providing services in conjunction
5 with a contractor on the same project or contract work is not
6 liable for the payment of compensation to the employees of
7 another subcontractor or the contractor on such contract work
8 and is not protected by the exclusiveness-of-liability
9 provisions of s. 440.11 from any action at law or in admiralty
10 on account of injury to an of such employee of another
11 subcontractor, or of the contractor, provided that:
12 1. The subcontractor has secured workers' compensation
13 insurance for its employees or the contractor has secured such
14 insurance on behalf of the subcontractor and its employees in
15 accordance with paragraph (b); and
16 2. The subcontractor's own gross negligence was not
17 the major contributing cause of the injury.
18 (f) If an employer fails to secure compensation as
19 required by this chapter, the department shall may assess
20 against the employer a penalty not to exceed $5,000 for each
21 employee of that employer who is classified by the employer as
22 an independent contractor but who is found by the department
23 to not meet the criteria for an independent contractor that
24 are set forth in s. 440.02. The division shall adopt rules to
25 administer the provisions of this paragraph.
26 (g) Subject to s. 440.38, any employer who has
27 employees engaged in work in this state shall obtain a Florida
28 policy or endorsement for such employees which utilizes
29 Florida class codes, rates, rules, and manuals that are in
30 compliance with and approved under the provisions of this
31 chapter and the Florida Insurance Code. Failure to comply with
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1 this paragraph is a felony of the second degree, punishable as
2 provided in s. 775.082, s. 775.083, or s. 775.084. The
3 department shall adopt rules for construction industry and
4 nonconstruction-industry employers with regard to the
5 activities that define what constitutes being "engaged in
6 work" in this state, using the following standards:
7 1. For employees of nonconstruction-industry employers
8 who have their headquarters outside of Florida and also
9 operate in Florida and who are routinely crossing state lines,
10 but usually return to their homes each night, the employee
11 shall be assigned to the headquarters' state. However, the
12 construction industry employees performing new construction or
13 alterations in Florida shall be assigned to Florida even if
14 the employees return to their home state each night.
15 2. The payroll of executive supervisors who may visit
16 a Florida location but who are not in direct charge of a
17 Florida location shall be assigned to the state in which the
18 headquarters is located.
19 3. For construction contractors who maintain a
20 permanent staff of employees and superintendents, if any of
21 these employees or superintendents are assigned to a job that
22 is located in Florida, either for the duration of the job or
23 any portion thereof, their payroll shall be assigned to
24 Florida rather than the headquarters' state.
25 4. Employees who are hired for a specific project in
26 Florida shall be assigned to Florida. For purposes of this
27 section, a person is conclusively presumed to be an
28 independent contractor if:
29 1. The independent contractor provides the general
30 contractor with an affidavit stating that he or she meets all
31 the requirements of s. 440.02; and
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1 2. The independent contractor provides the general
2 contractor with a valid certificate of workers' compensation
3 insurance or a valid certificate of exemption issued by the
4 department.
5
6 A sole proprietor, partner, or officer of a corporation who
7 elects exemption from this chapter by filing a certificate of
8 election under s. 440.05 may not recover benefits or
9 compensation under this chapter. An independent contractor who
10 provides the general contractor with both an affidavit stating
11 that he or she meets the requirements of s. 440.02 and a
12 certificate of exemption is not an employee under s. 440.02
13 and may not recover benefits under this chapter. For purposes
14 of determining the appropriate premium for workers'
15 compensation coverage, carriers may not consider any person
16 who meets the requirements of this paragraph to be an
17 employee.
18 Section 9. Section 440.1025, Florida Statutes, is
19 amended to read:
20 440.1025 Consideration of public Employer workplace
21 safety program in rate-setting; program requirements;
22 rulemaking.--
23 (1) For a public or private employer to be eligible
24 for receipt of specific identifiable consideration under s.
25 627.0915 for a workplace safety program in the setting of
26 rates, the public employer must have a workplace safety
27 program. At a minimum, the program must include a written
28 safety policy and safety rules, and make provision for safety
29 inspections, preventative maintenance, safety training,
30 first-aid, accident investigation, and necessary
31 recordkeeping. For purposes of this section, "public employer"
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1 means any agency within state, county, or municipal government
2 employing individuals for salary, wages, or other
3 remuneration. The division may adopt promulgate rules for
4 insurers to utilize in determining public employer compliance
5 with the requirements of this section.
6 (2) The division shall publicize on the Internet, and
7 shall encourage insurers to publicize, the availability of
8 free safety consultation services and safety program
9 resources.
10 Section 10. Section 440.103, Florida Statutes, is
11 amended to read:
12 440.103 Building permits; identification of minimum
13 premium policy.--Except as otherwise provided in this chapter,
14 Every employer shall, as a condition to applying for and
15 receiving a building permit, show proof and certify to the
16 permit issuer that it has secured compensation for its
17 employees under this chapter as provided in ss. 440.10 and
18 440.38. Such proof of compensation must be evidenced by a
19 certificate of coverage issued by the carrier, a valid
20 exemption certificate approved by the department or the former
21 Division of Workers' Compensation of the Department of Labor
22 and Employment Security, or a copy of the employer's authority
23 to self-insure and shall be presented each time the employer
24 applies for a building permit. As provided in s. 627.413(5),
25 each certificate of coverage must show, on its face, whether
26 or not coverage is secured under the minimum premium
27 provisions of rules adopted by rating organizations licensed
28 by the department. The words "minimum premium policy" or
29 equivalent language shall be typed, printed, stamped, or
30 legibly handwritten.
31
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1 Section 11. Section 440.105, Florida Statutes, is
2 amended to read:
3 440.105 Prohibited activities; reports; penalties;
4 limitations.--
5 (1)(a) Any insurance carrier, any individual
6 self-insured, any commercial or group self-insurance fund, any
7 professional practitioner licensed or regulated by the
8 Department of Health Business and Professional Regulation,
9 except as otherwise provided by law, any medical review
10 committee as defined in s. 766.101, any private medical review
11 committee, and any insurer, agent, or other person licensed
12 under the insurance code, or any employee thereof, having
13 knowledge or who believes that a fraudulent act or any other
14 act or practice which, upon conviction, constitutes a felony
15 or misdemeanor under this chapter is being or has been
16 committed shall send to the Division of Insurance Fraud,
17 Bureau of Workers' Compensation Fraud, a report or information
18 pertinent to such knowledge or belief and such additional
19 information relative thereto as the bureau may require. The
20 bureau shall review such information or reports and select
21 such information or reports as, in its judgment, may require
22 further investigation. It shall then cause an independent
23 examination of the facts surrounding such information or
24 report to be made to determine the extent, if any, to which a
25 fraudulent act or any other act or practice which, upon
26 conviction, constitutes a felony or a misdemeanor under this
27 chapter is being committed. The bureau shall report any
28 alleged violations of law which its investigations disclose to
29 the appropriate licensing agency and state attorney or other
30 prosecuting agency having jurisdiction with respect to any
31 such violations of this chapter. If prosecution by the state
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1 attorney or other prosecuting agency having jurisdiction with
2 respect to such violation is not begun within 60 days of the
3 bureau's report, the state attorney or other prosecuting
4 agency having jurisdiction with respect to such violation
5 shall inform the bureau of the reasons for the lack of
6 prosecution.
7 (b) In the absence of fraud or bad faith, a person is
8 not subject to civil liability for libel, slander, or any
9 other relevant tort by virtue of filing reports, without
10 malice, or furnishing other information, without malice,
11 required by this section or required by the bureau, and no
12 civil cause of action of any nature shall arise against such
13 person:
14 1. For any information relating to suspected
15 fraudulent acts furnished to or received from law enforcement
16 officials, their agents, or employees;
17 2. For any information relating to suspected
18 fraudulent acts furnished to or received from other persons
19 subject to the provisions of this chapter; or
20 3. For any such information relating to suspected
21 fraudulent acts furnished in reports to the bureau, or the
22 National Association of Insurance Commissioners.
23 (2) Whoever violates any provision of this subsection
24 commits a misdemeanor of the first second degree, punishable
25 as provided in s. 775.082 or s. 775.083.
26 (a) It shall be unlawful for any employer to
27 knowingly:
28 1. Coerce or attempt to coerce, as a precondition to
29 employment or otherwise, an employee to obtain a certificate
30 of election of exemption pursuant to s. 440.05.
31
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1 2. Discharge or refuse to hire an employee or job
2 applicant because the employee or applicant has filed a claim
3 for benefits under this chapter.
4 3. Discharge, discipline, or take any other adverse
5 personnel action against any employee for disclosing
6 information to the department or any law enforcement agency
7 relating to any violation or suspected violation of any of the
8 provisions of this chapter or rules promulgated hereunder.
9 4. Violate a stop-work order issued by the department
10 pursuant to s. 440.107.
11 (b) It shall be unlawful for any insurance entity to
12 revoke or cancel a workers' compensation insurance policy or
13 membership because an employer has returned an employee to
14 work or hired an employee who has filed a workers'
15 compensation claim.
16 (3) Whoever violates any provision of this subsection
17 commits a misdemeanor of the first degree, punishable as
18 provided in s. 775.082 or s. 775.083.
19 (a) It shall be unlawful for any employer to knowingly
20 fail to update applications for coverage as required by s.
21 440.381(1) and department of Insurance rules within 7 days
22 after the reporting date for any change in the required
23 information, or to post notice of coverage pursuant to s.
24 440.40.
25 (b) It shall be unlawful for any employer to knowingly
26 participate in the creation of the employment relationship in
27 which the employee has used any false, fraudulent, or
28 misleading oral or written statement as evidence of identity.
29 (c)(b) It is unlawful for any attorney or other
30 person, in his or her individual capacity or in his or her
31 capacity as a public or private employee, or for any firm,
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1 corporation, partnership, or association to receive any fee or
2 other consideration or any gratuity from a person on account
3 of services rendered for a person in connection with any
4 proceedings arising under this chapter, unless such fee,
5 consideration, or gratuity is approved by a judge of
6 compensation claims or by the Deputy Chief Judge of
7 Compensation Claims.
8 (4) Whoever violates any provision of this subsection
9 commits insurance fraud, punishable as provided in paragraph
10 (f).
11 (a) It shall be unlawful for any employer to
12 knowingly:
13 1. Present or cause to be presented any false,
14 fraudulent, or misleading oral or written statement to any
15 person as evidence of compliance with s. 440.38.
16 2. Make a deduction from the pay of any employee
17 entitled to the benefits of this chapter for the purpose of
18 requiring the employee to pay any portion of premium paid by
19 the employer to a carrier or to contribute to a benefit fund
20 or department maintained by such employer for the purpose of
21 providing compensation or medical services and supplies as
22 required by this chapter.
23 3. Fail to secure payment of compensation if required
24 to do so by this chapter.
25 (b) It shall be unlawful for any person:
26 1. To knowingly make, or cause to be made, any false,
27 fraudulent, or misleading oral or written statement for the
28 purpose of obtaining or denying any benefit or payment under
29 this chapter.
30 2. To present or cause to be presented any written or
31 oral statement as part of, or in support of, a claim for
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1 payment or other benefit pursuant to any provision of this
2 chapter, knowing that such statement contains any false,
3 incomplete, or misleading information concerning any fact or
4 thing material to such claim.
5 3. To prepare or cause to be prepared any written or
6 oral statement that is intended to be presented to any
7 employer, insurance company, or self-insured program in
8 connection with, or in support of, any claim for payment or
9 other benefit pursuant to any provision of this chapter,
10 knowing that such statement contains any false, incomplete, or
11 misleading information concerning any fact or thing material
12 to such claim.
13 4. To knowingly assist, conspire with, or urge any
14 person to engage in activity prohibited by this section.
15 5. To knowingly make any false, fraudulent, or
16 misleading oral or written statement, or to knowingly omit or
17 conceal material information, required by s. 440.185 or s.
18 440.381, for the purpose of obtaining workers' compensation
19 coverage or for the purpose of avoiding, delaying, or
20 diminishing the amount of payment of any workers' compensation
21 premiums.
22 6. To knowingly misrepresent or conceal payroll,
23 classification of workers, or information regarding an
24 employer's loss history which would be material to the
25 computation and application of an experience rating
26 modification factor for the purpose of avoiding or diminishing
27 the amount of payment of any workers' compensation premiums.
28 7. To knowingly present or cause to be presented any
29 false, fraudulent, or misleading oral or written statement to
30 any person as evidence of compliance with s. 440.38, as
31
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1 evidence of eligibility for a certificate of exemption under
2 s. 440.05.
3 8. To knowingly violate a stop-work order issued by
4 the department pursuant to s. 440.107.
5 9. To knowingly present or cause to be presented any
6 false, fraudulent, or misleading oral or written statement to
7 any person as evidence of identity for the purpose of
8 obtaining employment or filing or supporting a claim for
9 workers' compensation benefits.
10 (c) It shall be unlawful for any physician licensed
11 under chapter 458, osteopathic physician licensed under
12 chapter 459, chiropractic physician licensed under chapter
13 460, podiatric physician licensed under chapter 461,
14 optometric physician licensed under chapter 463, or any other
15 practitioner licensed under the laws of this state to
16 knowingly and willfully assist, conspire with, or urge any
17 person to fraudulently violate any of the provisions of this
18 chapter.
19 (d) It shall be unlawful for any person or
20 governmental entity licensed under chapter 395 to maintain or
21 operate a hospital in such a manner so that such person or
22 governmental entity knowingly and willfully allows the use of
23 the facilities of such hospital by any person, in a scheme or
24 conspiracy to fraudulently violate any of the provisions of
25 this chapter.
26 (e) It shall be unlawful for any attorney or other
27 person, in his or her individual capacity or in his or her
28 capacity as a public or private employee, or any firm,
29 corporation, partnership, or association, to knowingly assist,
30 conspire with, or urge any person to fraudulently violate any
31 of the provisions of this chapter.
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1 (f) If the monetary value amount of any claim or
2 workers' compensation insurance premium involved in any
3 violation of this subsection:
4 1. Is less than $20,000, the offender commits a felony
5 of the third degree, punishable as provided in s. 775.082, s.
6 775.083, or s. 775.084.
7 2. Is $20,000 or more, but less than $100,000, the
8 offender commits a felony of the second degree, punishable as
9 provided in s. 775.082,. 775.083, or s. 775.084.
10 3. Is $100,000 or more, the offender commits a felony
11 of the first degree, punishable as provided in s. 775.082, s.
12 775.083, or s. 775.084.
13 (5) It shall be unlawful for any attorney or other
14 person, in his or her individual capacity or in his or her
15 capacity as a public or private employee or for any firm,
16 corporation, partnership, or association, to unlawfully
17 solicit any business in and about city or county hospitals,
18 courts, or any public institution or public place; in and
19 about private hospitals or sanitariums; in and about any
20 private institution; or upon private property of any character
21 whatsoever for the purpose of making workers' compensation
22 claims. Whoever violates any provision of this subsection
23 commits a felony of the second third degree, punishable as
24 provided in s. 775.082, s. 775.083, or s. 775.085.
25 (6) This section shall not be construed to preclude
26 the applicability of any other provision of criminal law that
27 applies or may apply to any transaction.
28 (7) For the purpose of the section, the term
29 "statement" includes, but is not limited to, any notice,
30 representation, statement, proof of injury, bill for services,
31
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1 diagnosis, prescription, hospital or doctor records, X ray,
2 test result, or other evidence of loss, injury, or expense.
3 (7)(8) An injured employee or any other party making a
4 claim under this chapter shall provide his or her personal
5 signature attesting that he or she has reviewed, understands,
6 and acknowledges All claim forms as provided for in this
7 chapter shall contain a notice that clearly states in
8 substance the following statement: "Any person who, knowingly
9 and with intent to injure, defraud, or deceive any employer or
10 employee, insurance company, or self-insured program, files a
11 statement of claim containing any false or misleading
12 information commits insurance fraud, punishable as provided in
13 s. 817.234." If the injured employee or other party refuses to
14 sign the document attesting Each claimant shall personally
15 sign the claim form and attest that he or she has reviewed,
16 understands, and acknowledges the statement, benefits or
17 payments under this chapter shall be suspended until such
18 signature is obtained foregoing notice.
19 Section 12. Subsection (3) of section 440.1051,
20 Florida Statutes, is amended to read:
21 440.1051 Fraud reports; civil immunity; criminal
22 penalties.--
23 (2) Any person who reports workers' compensation fraud
24 to the division under subsection (1) is immune from civil
25 liability for doing so, and the person or entity alleged to
26 have committed the fraud may not retaliate against him or her
27 for providing such report, unless the person making the report
28 knows it to be false.
29 (3) A person who calls and, knowingly and falsely,
30 reports workers' compensation fraud or who, in violation of
31 subsection (2) retaliates against a person for making such
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1 report, commits is guilty of a felony misdemeanor of the third
2 first degree, punishable as provided in s. 775.082, or s.
3 775.083, or s. 775.084 both.
4 Section 13. Section 440.107, Florida Statutes, is
5 amended to read:
6 440.107 Department powers to enforce employer
7 compliance with coverage requirements.--
8 (1) The Legislature finds that the failure of an
9 employer to comply with the workers' compensation coverage
10 requirements under this chapter poses an immediate danger to
11 public health, safety, and welfare. The Legislature authorizes
12 the department to secure employer compliance with the workers'
13 compensation coverage requirements and authorizes the
14 department to conduct investigations for the purpose of
15 ensuring employer compliance.
16 (2) For the purposes of this section, "securing the
17 payment of workers' compensation" means obtaining coverage
18 that meets the requirements of this chapter and the Florida
19 Insurance Code. However, if at any time an employer materially
20 understates or conceals payroll, materially misrepresents or
21 conceals employee duties so as to avoid proper classification
22 for premium calculations, or materially misrepresents or
23 conceals information pertinent to the computation and
24 application of an experience rating modification factor, such
25 employer shall be deemed to have failed to secure payment of
26 workers' compensation and shall be subject to the sanctions
27 set forth in this section. A stop-work order issued because an
28 employer is deemed to have failed to secure the payment of
29 workers' compensation required under this chapter because the
30 employer has materially understated or concealed payroll,
31 materially misrepresented or concealed employee duties so as
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1 to avoid proper classification for premium calculations, or
2 materially misrepresented or concealed information pertinent
3 to the computation and application of an experience rating
4 modification factor shall have no effect upon an employer's or
5 carrier's duty to provide benefits under this chapter or upon
6 any of the employer's or carrier's rights and defenses under
7 this chapter, including exclusive remedy. The department and
8 its authorized representatives may enter and inspect any place
9 of business at any reasonable time for the limited purpose of
10 investigating compliance with workers' compensation coverage
11 requirements under this chapter. Each employer shall keep true
12 and accurate business records that contain such information as
13 the department prescribes by rule. The business records must
14 contain information necessary for the department to determine
15 compliance with workers' compensation coverage requirements
16 and must be maintained within this state by the business, in
17 such a manner as to be accessible within a reasonable time
18 upon request by the department. The business records must be
19 open to inspection and be available for copying by the
20 department at any reasonable time and place and as often as
21 necessary. The department may require from any employer any
22 sworn or unsworn reports, pertaining to persons employed by
23 that employer, deemed necessary for the effective
24 administration of the workers' compensation coverage
25 requirements.
26 (3) The department shall enforce workers' compensation
27 coverage requirements, including the requirement that the
28 employer secure the payment of workers' compensation, and the
29 requirement that the employer provide the carrier with
30 information to accurately determine payroll and correctly
31
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1 assign classification codes. In addition to any other powers
2 under this chapter, the department shall have the power to:
3 (a) Conduct investigations for the purpose of ensuring
4 employer compliance.
5 (b) Enter and inspect any place of business at any
6 reasonable time for the purpose of investigating employer
7 compliance.
8 (c) Examine and copy business records.
9 (d) Administer oaths and affirmations.
10 (e) Certify to official acts.
11 (f) Issue and serve subpoenas for attendance of
12 witnesses or production of business records, books, papers,
13 correspondence, memoranda, and other records.
14 (g) Issue stop-work orders, penalty assessment orders,
15 and any other orders necessary for the administration of this
16 section.
17 (h) Enforce the terms of a stop-work order.
18 (i) Levy and pursue actions to recover penalties.
19 (j) Seek injunctions and other appropriate relief. In
20 discharging its duties, the department may administer oaths
21 and affirmations, certify to official acts, issue subpoenas to
22 compel the attendance of witnesses and the production of
23 books, papers, correspondence, memoranda, and other records
24 deemed necessary by the department as evidence in order to
25 ensure proper compliance with the coverage provisions of this
26 chapter.
27 (4) The department shall designate representatives who
28 may serve subpoenas and other process of the department issued
29 under this section.
30
31
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1 (5) The department shall specify by rule the business
2 records that employers must maintain and produce to comply
3 with this section.
4 (6)(4) If a person has refused to obey a subpoena to
5 appear before the department or its authorized representative
6 or and produce evidence requested by the department or to give
7 testimony about the matter that is under investigation, a
8 court has jurisdiction to issue an order requiring compliance
9 with the subpoena if the court has jurisdiction in the
10 geographical area where the inquiry is being carried on or in
11 the area where the person who has refused the subpoena is
12 found, resides, or transacts business. Failure to obey such a
13 court order may be punished by the court as contempt, either
14 civilly or criminally. Costs, including reasonable attorney's
15 fees, incurred by the department to obtain an order granting,
16 in whole or in part, a petition to enforce a subpoena or a
17 subpoena duces tecum shall be taxed against the subpoenaed
18 party.
19 (7)(a)(5) Whenever the department determines that an
20 employer who is required to secure the payment to his or her
21 employees of the compensation provided for by this chapter has
22 failed to secure the payment of workers' compensation required
23 by this chapter or to produce the required business records
24 under subsection (5) within 5 business days after receipt of
25 the written request of the department do so, such failure
26 shall be deemed an immediate serious danger to public health,
27 safety, or welfare sufficient to justify service by the
28 department of a stop-work order on the employer, requiring the
29 cessation of all business operations at the place of
30 employment or job site. If the department division makes such
31 a determination, the department division shall issue a
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1 stop-work order within 72 hours. The order shall take effect
2 when served upon the date of service upon the employer or, for
3 a particular employer work site, when served at that work
4 site, unless the employer provides evidence satisfactory to
5 the department of having secured any necessary insurance or
6 self-insurance and pays a civil penalty to the department, to
7 be deposited by the department into the Workers' Compensation
8 Administration Trust Fund, in the amount of $100 per day for
9 each day the employer was not in compliance with this chapter.
10 In addition to serving a stop-work order at a particular work
11 site which shall be effective immediately, the department
12 shall immediately proceed with service upon the employer which
13 shall be effective upon all employer work sites in the state
14 for which the employer is not in compliance. A stop-work order
15 may be served with regard to an employer's work site by
16 posting a copy of the stop-work order in a conspicuous
17 location at the work site. The order shall remain in effect
18 until the department issues an order releasing the stop-work
19 order upon a finding that the employer has come into
20 compliance with the coverage requirements of this chapter and
21 has paid any penalty assessed under this section. The
22 department may require an employer who is found to have failed
23 to comply with the coverage requirements of s. 440.38 to file
24 with the department, as a condition of release from a
25 stop-work order, periodic reports for a probationary period
26 that shall not exceed 2 years that demonstrate the employer's
27 continued compliance with this chapter. The department shall
28 by rule specify the reports required and the time for filing
29 under this subsection.
30 (b) Stop-work orders and penalty assessment orders
31 issued under this section against a corporation, partnership,
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1 or sole proprietorship shall be in effect against any
2 successor corporation or business entity that has one or more
3 of the same principals or officers as the corporation or
4 partnership against which the stop-work order was issued and
5 are engaged in the same or equivalent trade or activity.
6 (c) The department shall assess a penalty of $1,000
7 per day against an employer for each day that the employer
8 conducts business operations that are in violation of a
9 stop-work order.
10 (d)1. In addition to any penalty, stop-work order, or
11 injunction, the department shall assess against any employer
12 who has failed to secure the payment of compensation as
13 required by this chapter a penalty equal to 1.5 times the
14 amount the employer would have paid in premium when applying
15 approved manual rates to the employer's payroll during periods
16 for which it failed to secure the payment of workers'
17 compensation required by this chapter within the preceding
18 3-year period or $1,000, whichever is greater.
19 2. Any subsequent violation within 5 years after the
20 most recent violation shall, in addition to the penalties set
21 forth in this subsection, be deemed a knowing act within the
22 meaning of s. 440.105.
23 (e) When an employer fails to provide business records
24 sufficient to enable the department to determine the
25 employer's payroll for the period requested for the
26 calculation of the penalty provided in paragraph (d), for
27 penalty calculation purposes, the imputed weekly payroll for
28 each employee, corporate officer, sole proprietor, or partner
29 shall be the statewide average weekly wage as defined in s.
30 440.12(2) multiplied by 1.5.
31
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1 (f) In addition to any other penalties provided for in
2 this chapter, the department may assess against the employer a
3 penalty of $5,000 for each employee of that employer who the
4 employer represents to the department or carrier as an
5 independent contractor but who is determined by the department
6 not to be an independent contractor as defined in s. 440.02.
7 (8)(6) In addition to the issuance of a stop-work
8 order under subsection (7), the department may file a
9 complaint in the circuit court in and for Leon County to
10 enjoin any employer, who has failed to secure the payment of
11 workers' compensation as required by this chapter, from
12 employing individuals and from conducting business until the
13 employer presents evidence satisfactory to the department of
14 having secured the payment of workers' for compensation
15 required by this chapter and pays a civil penalty assessed by
16 to the department under this section, to be deposited by the
17 department into the Workers' Compensation Administration Trust
18 Fund, in the amount of $100 per day for each day the employer
19 was not in compliance with this chapter.
20 (9)(7) In addition to any penalty, stop-work order, or
21 injunction, the department shall assess against any employer,
22 who has failed to secure the payment of compensation as
23 required by this chapter, a penalty in the following amount:
24 (a) An amount equal to at least the amount that the
25 employer would have paid or up to twice the amount the
26 employer would have paid during periods it illegally failed to
27 secure payment of compensation in the preceding 3-year period
28 based on the employer's payroll during the preceding 3-year
29 period; or
30 (b) One thousand dollars, whichever is greater. Any
31 penalty assessed under this subsection is due within 30 days
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1 after the date on which the employer is notified, except that,
2 if the department has posted a stop-work order or obtained
3 injunctive relief against the employer, payment is due, in
4 addition to those conditions set forth in this section, as a
5 condition to relief from a stop-work order or an injunction.
6 Interest shall accrue on amounts not paid when due at the rate
7 of 1 percent per month. The department division shall adopt
8 rules to administer this section.
9 (10)(8) The department may bring an action in circuit
10 court to recover penalties assessed under this section,
11 including any interest owed to the department pursuant to this
12 section. In any action brought by the department pursuant to
13 this section in which it prevails, the circuit court shall
14 award costs, including the reasonable costs of investigation
15 and a reasonable attorney's fee.
16 (11)(9) Any judgment obtained by the department and
17 any penalty due pursuant to the service of a stop-work order
18 or otherwise due under this section shall, until collected,
19 constitute a lien upon the entire interest of the employer,
20 legal or equitable, in any property, real or personal,
21 tangible or intangible; however, such lien is subordinate to
22 claims for unpaid wages and any prior recorded liens, and a
23 lien created by this section is not valid against any person
24 who, subsequent to such lien and in good faith and for value,
25 purchases real or personal property from such employer or
26 becomes the mortgagee on real or personal property of such
27 employer, or against a subsequent attaching creditor, unless,
28 with respect to real estate of the employer, a notice of the
29 lien is recorded in the public records of the county where the
30 real estate is located, and with respect to personal property
31
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1 of the employer, the notice is recorded with the Secretary of
2 State.
3 (12)(10) Any law enforcement agency in the state may,
4 at the request of the department, render any assistance
5 necessary to carry out the provisions of this section,
6 including, but not limited to, preventing any employee or
7 other person from remaining at a place of employment or job
8 site after a stop-work order or injunction has taken effect.
9 (13)(11) Agency action Actions by the department under
10 this section, if contested, must be contested as provided in
11 chapter 120. All civil penalties assessed by the department
12 must be paid into the Workers' Compensation Administration
13 Trust Fund. The department shall return any sums previously
14 paid, upon conclusion of an action, if the department fails to
15 prevail and if so directed by an order of court or an
16 administrative hearing officer. The requirements of this
17 subsection may be met by posting a bond in an amount equal to
18 twice the penalty and in a form approved by the department.
19 (14)(12) If the department division finds that an
20 employer who is certified or registered under part I or part
21 II of chapter 489 and who is required to secure the payment of
22 workers' the compensation under provided for by this chapter
23 to his or her employees has failed to do so, the department
24 division shall immediately notify the Department of Business
25 and Professional Regulation.
26 Section 14. Subsections (1) and (3) of section 440.11,
27 Florida Statutes, are amended to read:
28 440.11 Exclusiveness of liability.--
29 (1) The liability of an employer prescribed in s.
30 440.10 shall be exclusive and in place of all other liability,
31 including vicarious liability, of such employer to any
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1 third-party tortfeasor and to the employee, the legal
2 representative thereof, husband or wife, parents, dependents,
3 next of kin, and anyone otherwise entitled to recover damages
4 from such employer at law or in admiralty on account of such
5 injury or death, except as follows: that
6 (a) If an employer fails to secure payment of
7 compensation as required by this chapter, an injured employee,
8 or the legal representative thereof in case death results from
9 the injury, may elect to claim compensation under this chapter
10 or to maintain an action at law or in admiralty for damages on
11 account of such injury or death. In such action the defendant
12 may not plead as a defense that the injury was caused by
13 negligence of a fellow employee, that the employee assumed the
14 risk of the employment, or that the injury was due to the
15 comparative negligence of the employee.
16 (b) When an employer commits an intentional tort that
17 causes the injury or death of the employee. For purposes of
18 this paragraph, an employer's actions shall be deemed to
19 constitute an intentional tort and not an accident only when
20 the employee proves, by clear and convincing evidence, that:
21 1. The employer deliberately intended to injure the
22 employee; or
23 2. The employer engaged in conduct that the employer
24 knew, based on prior similar accidents or on explicit warnings
25 specifically identifying a known danger, was virtually certain
26 to result in injury or death to the employee, and the employee
27 was not aware of the risk because the danger was not apparent
28 and the employer deliberately concealed or misrepresented the
29 danger so as to prevent the employee from exercising informed
30 judgment about whether to perform the work.
31
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1 The same immunities from liability enjoyed by an employer
2 shall extend as well to each employee of the employer when
3 such employee is acting in furtherance of the employer's
4 business and the injured employee is entitled to receive
5 benefits under this chapter. Such fellow-employee immunities
6 shall not be applicable to an employee who acts, with respect
7 to a fellow employee, with willful and wanton disregard or
8 unprovoked physical aggression or with gross negligence when
9 such acts result in injury or death or such acts proximately
10 cause such injury or death, nor shall such immunities be
11 applicable to employees of the same employer when each is
12 operating in the furtherance of the employer's business but
13 they are assigned primarily to unrelated works within private
14 or public employment. The same immunity provisions enjoyed by
15 an employer shall also apply to any sole proprietor, partner,
16 corporate officer or director, supervisor, or other person who
17 in the course and scope of his or her duties acts in a
18 managerial or policymaking capacity and the conduct which
19 caused the alleged injury arose within the course and scope of
20 said managerial or policymaking duties and was not a violation
21 of a law, whether or not a violation was charged, for which
22 the maximum penalty which may be imposed does not exceed 60
23 days' imprisonment as set forth in s. 775.082. The immunity
24 from liability provided in this subsection extends to county
25 governments with respect to employees of county constitutional
26 officers whose offices are funded by the board of county
27 commissioners.
28 (3) An employer's workers' compensation carrier,
29 service agent, or safety consultant shall not be liable as a
30 third-party tortfeasor to employees of the employer or
31 employees of its subcontractors for assisting the employer and
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1 its subcontractors, if any, in carrying out the employer's
2 rights and responsibilities under this chapter by furnishing
3 any safety inspection, safety consultative service, or other
4 safety service incidental to the workers' compensation or
5 employers' liability coverage or to the workers' compensation
6 or employer's liability servicing contract. Without
7 limitation, a safety consultant may include an owner, as
8 defined in chapter 713, or an owner's related, affiliated, or
9 subsidiary companies and the employees of each. The exclusion
10 from liability under this subsection shall not apply in any
11 case in which injury or death is proximately caused by the
12 willful and unprovoked physical aggression, or by the
13 negligent operation of a motor vehicle, by employees,
14 officers, or directors of the employer's workers' compensation
15 carrier, service agent, or safety consultant.
16 Section 15. Section 440.13, Florida Statutes, is
17 amended to read:
18 440.13 Medical services and supplies; penalty for
19 violations; limitations.--
20 (1) DEFINITIONS.--As used in this section, the term:
21 (a) "Alternate medical care" means a change in
22 treatment or health care provider.
23 (b) "Attendant care" means care rendered by trained
24 professional attendants which is beyond the scope of household
25 duties. Family members may provide nonprofessional attendant
26 care, but may not be compensated under this chapter for care
27 that falls within the scope of household duties and other
28 services normally and gratuitously provided by family members.
29 "Family member" means a spouse, father, mother, brother,
30 sister, child, grandchild, father-in-law, mother-in-law, aunt,
31 or uncle.
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1 (c) "Carrier" means, for purposes of this section,
2 insurance carrier, self-insurance fund or individually
3 self-insured employer, or assessable mutual insurer.
4 (d) "Catastrophic injury" means an injury as defined
5 in s. 440.02.
6 (d)(e) "Certified health care provider" means a health
7 care provider who has been certified by the agency or who has
8 entered an agreement with a licensed managed care organization
9 to provide treatment to injured workers under this section.
10 Certification of such health care provider must include
11 documentation that the health care provider has read and is
12 familiar with the portions of the statute, impairment guides,
13 practice parameters, protocols of treatment, and rules which
14 govern the provision of remedial treatment, care, and
15 attendance.
16 (e)(f) "Compensable" means a determination by a
17 carrier or judge of compensation claims that a condition
18 suffered by an employee results from an injury arising out of
19 and in the course of employment.
20 (f)(g) "Emergency services and care" means emergency
21 services and care as defined in s. 395.002.
22 (g)(h) "Health care facility" means any hospital
23 licensed under chapter 395 and any health care institution
24 licensed under chapter 400.
25 (h)(i) "Health care provider" means a physician or any
26 recognized practitioner who provides skilled services pursuant
27 to a prescription or under the supervision or direction of a
28 physician and who has been certified by the agency as a health
29 care provider. The term "health care provider" includes a
30 health care facility.
31
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1 (i)(j) "Independent medical examiner" means a
2 physician selected by either an employee or a carrier to
3 render one or more independent medical examinations in
4 connection with a dispute arising under this chapter.
5 (j)(k) "Independent medical examination" means an
6 objective evaluation of the injured employee's medical
7 condition, including, but not limited to, impairment or work
8 status, performed by a physician or an expert medical advisor
9 at the request of a party, a judge of compensation claims, or
10 the agency to assist in the resolution of a dispute arising
11 under this chapter.
12 (k)(l) "Instance of overutilization" means a specific
13 inappropriate service or level of service provided to an
14 injured employee that includes the provision of treatment in
15 excess of established practice parameters and protocols of
16 treatment established in accordance with this chapter.
17 (l)(m) "Medically necessary" or "medical necessity"
18 means any medical service or medical supply which is used to
19 identify or treat an illness or injury, is appropriate to the
20 patient's diagnosis and status of recovery, and is consistent
21 with the location of service, the level of care provided, and
22 applicable practice parameters. The service should be widely
23 accepted among practicing health care providers, based on
24 scientific criteria, and determined to be reasonably safe. The
25 service must not be of an experimental, investigative, or
26 research nature, except in those instances in which prior
27 approval of the Agency for Health Care Administration has been
28 obtained. The Agency for Health Care Administration shall
29 adopt rules providing for such approval on a case-by-case
30 basis when the service or supply is shown to have significant
31 benefits to the recovery and well-being of the patient.
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1 (m)(n) "Medicine" means a drug prescribed by an
2 authorized health care provider and includes only generic
3 drugs or single-source patented drugs for which there is no
4 generic equivalent, unless the authorized health care provider
5 writes or states that the brand-name drug as defined in s.
6 465.025 is medically necessary, or is a drug appearing on the
7 schedule of drugs created pursuant to s. 465.025(6), or is
8 available at a cost lower than its generic equivalent.
9 (n)(o) "Palliative care" means noncurative medical
10 services that mitigate the conditions, effects, or pain of an
11 injury.
12 (o)(p) "Pattern or practice of overutilization" means
13 repetition of instances of overutilization within a specific
14 medical case or multiple cases by a single health care
15 provider.
16 (p)(q) "Peer review" means an evaluation by two or
17 more physicians licensed under the same authority and with the
18 same or similar specialty as the physician under review, of
19 the appropriateness, quality, and cost of health care and
20 health services provided to a patient, based on medically
21 accepted standards.
22 (q)(r) "Physician" or "doctor" means a physician
23 licensed under chapter 458, an osteopathic physician licensed
24 under chapter 459, a chiropractic physician licensed under
25 chapter 460, a podiatric physician licensed under chapter 461,
26 an optometrist licensed under chapter 463, or a dentist
27 licensed under chapter 466, each of whom must be certified by
28 the agency as a health care provider.
29 (r)(s) "Reimbursement dispute" means any disagreement
30 between a health care provider or health care facility and
31 carrier concerning payment for medical treatment.
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1 (s)(t) "Utilization control" means a systematic
2 process of implementing measures that assure overall
3 management and cost containment of services delivered,
4 including compliance with practice parameters and protocols of
5 treatment as provided for in this chapter.
6 (t)(u) "Utilization review" means the evaluation of
7 the appropriateness of both the level and the quality of
8 health care and health services provided to a patient,
9 including, but not limited to, evaluation of the
10 appropriateness of treatment, hospitalization, or office
11 visits based on medically accepted standards. Such evaluation
12 must be accomplished by means of a system that identifies the
13 utilization of medical services based on practice parameters
14 and protocols of treatment as provided for in this chapter
15 medically accepted standards as established by medical
16 consultants with qualifications similar to those providing the
17 care under review, and that refers patterns and practices of
18 overutilization to the agency.
19 (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.--
20 (a) Subject to the limitations specified elsewhere in
21 this chapter, the employer shall furnish to the employee such
22 medically necessary remedial treatment, care, and attendance
23 for such period as the nature of the injury or the process of
24 recovery may require, which is in accordance with established
25 practice parameters and protocols of treatment as provided for
26 in this chapter, including medicines, medical supplies,
27 durable medical equipment, orthoses, prostheses, and other
28 medically necessary apparatus. Remedial treatment, care, and
29 attendance, including work-hardening programs or
30 pain-management programs accredited by the Commission on
31 Accreditation of Rehabilitation Facilities or Joint Commission
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1 on the Accreditation of Health Organizations or
2 pain-management programs affiliated with medical schools,
3 shall be considered as covered treatment only when such care
4 is given based on a referral by a physician as defined in this
5 chapter. Each facility shall maintain outcome data, including
6 work status at discharges, total program charges, total number
7 of visits, and length of stay. The department shall utilize
8 such data and report to the President of the Senate and the
9 Speaker of the House of Representatives regarding the efficacy
10 and cost-effectiveness of such program, no later than October
11 1, 1994. Medically necessary treatment, care, and attendance
12 does not include chiropractic services in excess of 24 18
13 treatments or rendered 12 8 weeks beyond the date of the
14 initial chiropractic treatment, whichever comes first, unless
15 the carrier authorizes additional treatment or the employee is
16 catastrophically injured.
17 (b) The employer shall provide appropriate
18 professional or nonprofessional attendant care performed only
19 at the direction and control of a physician when such care is
20 medically necessary. The physician shall prescribe such care
21 in writing. The employer or carrier shall not be responsible
22 for such care until the prescription for attendant care is
23 received by the employer and carrier, which shall specify the
24 time periods for such care, the level of care required, and
25 the type of assistance required. A prescription for attendant
26 care shall not prescribe such care retroactively. The value of
27 nonprofessional attendant care provided by a family member
28 must be determined as follows:
29 1. If the family member is not employed or if the
30 family member is employed and is providing attendant care
31 services during hours that he or she is not engaged in
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1 employment, the per-hour value equals the federal minimum
2 hourly wage.
3 2. If the family member is employed and elects to
4 leave that employment to provide attendant or custodial care,
5 the per-hour value of that care equals the per-hour value of
6 the family member's former employment, not to exceed the
7 per-hour value of such care available in the community at
8 large. A family member or a combination of family members
9 providing nonprofessional attendant care under this paragraph
10 may not be compensated for more than a total of 12 hours per
11 day.
12 3. If the family member remains employed while
13 providing attendant or custodial care, the per-hour value of
14 that care equals the per-hour value of the family member's
15 employment, not to exceed the per-hour value of such care
16 available in the community at large.
17 (c) If the employer fails to provide initial treatment
18 or care required by this section after request by the injured
19 employee, the employee may obtain such initial treatment at
20 the expense of the employer, if the initial treatment or care
21 is compensable and medically necessary and is in accordance
22 with established practice parameters and protocols of
23 treatment as provided for in this chapter. There must be a
24 specific request for the initial treatment or care, and the
25 employer or carrier must be given a reasonable time period
26 within which to provide the initial treatment or care.
27 However, the employee is not entitled to recover any amount
28 personally expended for the initial treatment or care service
29 unless he or she has requested the employer to furnish that
30 initial treatment or service and the employer has failed,
31 refused, or neglected to do so within a reasonable time or
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1 unless the nature of the injury requires such initial
2 treatment, nursing, and services and the employer or his or
3 her superintendent or foreman, having knowledge of the injury,
4 has neglected to provide the initial treatment or care
5 service.
6 (d) The carrier has the right to transfer the care of
7 an injured employee from the attending health care provider if
8 an independent medical examination determines that the
9 employee is not making appropriate progress in recuperation.
10 (e) Except in emergency situations and for treatment
11 rendered by a managed care arrangement, after any initial
12 examination and diagnosis by a physician providing remedial
13 treatment, care, and attendance, and before a proposed course
14 of medical treatment begins, each insurer shall review, in
15 accordance with the requirements of this chapter, the proposed
16 course of treatment, to determine whether such treatment would
17 be recognized as reasonably prudent. The review must be in
18 accordance with all applicable workers' compensation practice
19 parameters and protocols of treatment established in
20 accordance with this chapter. The insurer must accept any such
21 proposed course of treatment unless the insurer notifies the
22 physician of its specific objections to the proposed course of
23 treatment by the close of the tenth business day after
24 notification by the physician, or a supervised designee of the
25 physician, of the proposed course of treatment.
26 (f) Upon the written request of the employee, the
27 carrier shall give the employee the opportunity for one change
28 of physician during the course of treatment for any one
29 accident. Upon the granting of a change of physician, the
30 originally authorized physician in the same specialty as the
31 changed physician shall become deauthorized upon written
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1 notification by the employer or carrier. The carrier shall
2 authorize an alternative physician who shall not be
3 professionally affiliated with the previous physician within 5
4 days after receipt of the request. If the carrier fails to
5 provide a change of physician as requested by the employee,
6 the employee may select the physician and such physician shall
7 be considered authorized if the treatment being provided is
8 compensable and medically necessary.
9
10 Failure of the carrier to timely comply with this subsection
11 shall be a violation of this chapter and the carrier shall be
12 subject to penalties as provided for in s. 440.525. The
13 employee shall be entitled to select another physician from
14 among not fewer than three carrier-authorized physicians who
15 are not professionally affiliated.
16 (3) PROVIDER ELIGIBILITY; AUTHORIZATION.--
17 (a) As a condition to eligibility for payment under
18 this chapter, a health care provider who renders services must
19 be a certified health care provider and must receive
20 authorization from the carrier before providing treatment.
21 This paragraph does not apply to emergency care. The agency
22 shall adopt rules to implement the certification of health
23 care providers.
24 (b) A health care provider who renders emergency care
25 must notify the carrier by the close of the third business day
26 after it has rendered such care. If the emergency care results
27 in admission of the employee to a health care facility, the
28 health care provider must notify the carrier by telephone
29 within 24 hours after initial treatment. Emergency care is not
30 compensable under this chapter unless the injury requiring
31 emergency care arose as a result of a work-related accident.
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1 Pursuant to chapter 395, all licensed physicians and health
2 care providers in this state shall be required to make their
3 services available for emergency treatment of any employee
4 eligible for workers' compensation benefits. To refuse to make
5 such treatment available is cause for revocation of a license.
6 (c) A health care provider may not refer the employee
7 to another health care provider, diagnostic facility, therapy
8 center, or other facility without prior authorization from the
9 carrier, except when emergency care is rendered. Any referral
10 must be to a health care provider that has been certified by
11 the agency, unless the referral is for emergency treatment,
12 and the referral must be made in accordance with practice
13 parameters and protocols of treatment as provided for in this
14 chapter.
15 (d) A carrier must respond, by telephone or in
16 writing, to a request for authorization from an authorized
17 health care provider by the close of the third business day
18 after receipt of the request. A carrier who fails to respond
19 to a written request for authorization for referral for
20 medical treatment by the close of the third business day after
21 receipt of the request consents to the medical necessity for
22 such treatment. All such requests must be made to the carrier.
23 Notice to the carrier does not include notice to the employer.
24 (e) Carriers shall adopt procedures for receiving,
25 reviewing, documenting, and responding to requests for
26 authorization. Such procedures shall be for a health care
27 provider certified under this section.
28 (f) By accepting payment under this chapter for
29 treatment rendered to an injured employee, a health care
30 provider consents to the jurisdiction of the agency as set
31 forth in subsection (11) and to the submission of all records
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1 and other information concerning such treatment to the agency
2 in connection with a reimbursement dispute, audit, or review
3 as provided by this section. The health care provider must
4 further agree to comply with any decision of the agency
5 rendered under this section.
6 (g) The employee is not liable for payment for medical
7 treatment or services provided pursuant to this section except
8 as otherwise provided in this section.
9 (h) The provisions of s. 456.053 are applicable to
10 referrals among health care providers, as defined in
11 subsection (1), treating injured workers.
12 (i) Notwithstanding paragraph (d), a claim for
13 specialist consultations, surgical operations,
14 physiotherapeutic or occupational therapy procedures, X-ray
15 examinations, or special diagnostic laboratory tests that cost
16 more than $1,000 and other specialty services that the agency
17 identifies by rule is not valid and reimbursable unless the
18 services have been expressly authorized by the carrier, or
19 unless the carrier has failed to respond within 10 days to a
20 written request for authorization, or unless emergency care is
21 required. The insurer shall not refuse to authorize such
22 consultation or procedure unless the health care provider or
23 facility is not authorized or certified, unless such treatment
24 is not in accordance with practice parameters and protocols of
25 treatment established in this chapter, or unless a judge of
26 compensation claims an expert medical advisor has determined
27 that the consultation or procedure is not medically necessary,
28 not in accordance with the practice parameters and protocols
29 of treatment established in this chapter, or otherwise not
30 compensable under this chapter. Authorization of a treatment
31 plan does not constitute express authorization for purposes of
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1 this section, except to the extent the carrier provides
2 otherwise in its authorization procedures. This paragraph does
3 not limit the carrier's obligation to identify and disallow
4 overutilization or billing errors.
5 (j) Notwithstanding anything in this chapter to the
6 contrary, a sick or injured employee shall be entitled, at all
7 times, to free, full, and absolute choice in the selection of
8 the pharmacy or pharmacist dispensing and filling
9 prescriptions for medicines required under this chapter. It is
10 expressly forbidden for the agency, an employer, or a carrier,
11 or any agent or representative of the agency, an employer, or
12 a carrier to select the pharmacy or pharmacist which the sick
13 or injured employee must use; condition coverage or payment on
14 the basis of the pharmacy or pharmacist utilized; or to
15 otherwise interfere in the selection by the sick or injured
16 employee of a pharmacy or pharmacist.
17 (4) NOTICE OF TREATMENT TO CARRIER; FILING WITH
18 DEPARTMENT.--
19 (a) Any health care provider providing necessary
20 remedial treatment, care, or attendance to any injured worker
21 shall submit treatment reports to the carrier in a format
22 prescribed by the department in consultation with the agency.
23 A claim for medical or surgical treatment is not valid or
24 enforceable against such employer or employee, unless, by the
25 close of the third business day following the first treatment,
26 the physician providing the treatment furnishes to the
27 employer or carrier a preliminary notice of the injury and
28 treatment in a format on forms prescribed by the department in
29 consultation with the agency and, within 15 days thereafter,
30 furnishes to the employer or carrier a complete report, and
31 subsequent thereto furnishes progress reports, if requested by
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1 the employer or insurance carrier, at intervals of not less
2 than 3 weeks apart or at less frequent intervals if requested
3 in a format on forms prescribed by the department in
4 consultation with the agency.
5 (b) Upon the request of the department or agency, each
6 medical report or bill obtained or received by the employer,
7 the carrier, or the injured employee, or the attorney for the
8 employer, carrier, or injured employee, with respect to the
9 remedial treatment, care, and attendance of the injured
10 employee, including any report of an examination, diagnosis,
11 or disability evaluation, must be produced by the health care
12 provider to filed with the department or agency pursuant to
13 rules adopted by the department in consultation with the
14 agency. The health care provider shall also furnish to the
15 injured employee or to his or her attorney and the employer or
16 carrier or its attorney, on demand, a copy of his or her
17 office chart, records, and reports, and may charge the injured
18 employee no more than 50 cents per page for copying the
19 records and the actual direct cost to the health care provider
20 or health care facility for X rays, microfilm, or other
21 nonpaper records an amount authorized by the department for
22 the copies. Each such health care provider shall provide to
23 the agency or department information about the remedial
24 treatment, care, and attendance which the agency or department
25 reasonably requests.
26 (c) It is the policy for the administration of the
27 workers' compensation system that there shall be reasonable
28 access to medical information by all parties to facilitate the
29 self-executing features of the law. An employee who reports an
30 injury or illness alleged to be work-related waives any
31 physician-patient privilege with respect to any condition or
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1 complaint reasonably related to the condition for which the
2 employee claims compensation. Notwithstanding the limitations
3 in s. 456.057 and subject to the limitations in s. 381.004,
4 upon the request of the employer, the carrier, an authorized
5 qualified rehabilitation provider, or the attorney for the
6 employer or carrier, the medical records, reports, and
7 information of an injured employee relevant to the particular
8 injury or illness for which compensation is sought must be
9 furnished to those persons and the medical condition of the
10 injured employee must be discussed with those persons, if the
11 records and the discussions are restricted to conditions
12 relating to the workplace injury. Release of medical
13 information by the health care provider or other physician
14 does not require the authorization of the injured employee. If
15 medical records, reports, and information of an injured
16 employee are sought from health care providers who are not
17 subject to the jurisdiction of the state, the injured employee
18 shall sign an authorization allowing for the employer or
19 carrier to obtain the medical records, reports, or
20 information. Any such discussions or release of information
21 may be held before or after the filing of a claim or petition
22 for benefits without the knowledge, consent, or presence of
23 any other party or his or her agent or representative. A
24 health care provider who willfully refuses to provide medical
25 records or to discuss the medical condition of the injured
26 employee, after a reasonable request is made for such
27 information pursuant to this subsection, shall be subject by
28 the department agency to one or more of the penalties set
29 forth in paragraph (8)(b). The department may adopt rules to
30 carry out this subsection.
31 (5) INDEPENDENT MEDICAL EXAMINATIONS.--
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1 (a) In any dispute concerning overutilization, medical
2 benefits, compensability, or disability under this chapter,
3 the carrier or the employee may select an independent medical
4 examiner. If the parties agree, the examiner may be a health
5 care provider treating or providing other care to the
6 employee. An independent medical examiner may not render an
7 opinion outside his or her area of expertise, as demonstrated
8 by licensure and applicable practice parameters. The employer
9 and employee shall be entitled to only one independent medical
10 examination per accident and not one independent medical
11 examination per medical specialty. The party requesting and
12 selecting the independent medical examination shall be
13 responsible for all expenses associated with said examination,
14 including, but not limited to, medically necessary diagnostic
15 testing performed and physician or medical care provider fees
16 for the evaluation. The party selecting the independent
17 medical examination shall identify the choice of the
18 independent medical examiner to all other parties within 15
19 days after the date the independent medical examination is to
20 take place. Failure to timely provide such notification shall
21 preclude the requesting party from submitting the findings of
22 such independent medical examiner in a proceeding before a
23 judge of compensation claims. The independent medical examiner
24 may not provide followup care if such recommendation for care
25 is found to be medically necessary. If the employee prevails
26 in a medical dispute as determined in an order by a judge of
27 compensation claims or if benefits are paid or treatment
28 provided after the employee has obtained an independent
29 medical examination based upon the examiner's findings, the
30 costs of such examination shall be paid by the employer or
31 carrier.
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1 (b) Each party is bound by his or her selection of an
2 independent medical examiner, including the selection of the
3 independent medical examiner in accordance with s. 440.134 and
4 the opinions of such independent medical examiner. Each party
5 and is entitled to an alternate examiner only if:
6 1. The examiner is not qualified to render an opinion
7 upon an aspect of the employee's illness or injury which is
8 material to the claim or petition for benefits;
9 2. The examiner ceases to practice in the specialty
10 relevant to the employee's condition;
11 3. The examiner is unavailable due to injury, death,
12 or relocation outside a reasonably accessible geographic area;
13 or
14 4. The parties agree to an alternate examiner.
15
16 Any party may request, or a judge of compensation claims may
17 require, designation of an agency medical advisor as an
18 independent medical examiner. The opinion of the advisors
19 acting as examiners shall not be afforded the presumption set
20 forth in paragraph (9)(c).
21 (c) The carrier may, at its election, contact the
22 claimant directly to schedule a reasonable time for an
23 independent medical examination. The carrier must confirm the
24 scheduling agreement in writing with the claimant and the
25 within 5 days and notify claimant's counsel, if any, at least
26 7 days before the date upon which the independent medical
27 examination is scheduled to occur. An attorney representing a
28 claimant is not authorized to schedule the self-insured
29 employer's or carrier's independent medical evaluations under
30 this subsection. Neither the self-insured employer nor the
31 carrier shall be responsible for scheduling any independent
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1 medical examination other than an employer or carrier
2 independent medical examination.
3 (d) If the employee fails to appear for the
4 independent medical examination scheduled by the employer or
5 carrier without good cause and fails to advise the physician
6 at least 24 hours before the scheduled date for the
7 examination that he or she cannot appear, the employee is
8 barred from recovering compensation for any period during
9 which he or she has refused to submit to such examination.
10 Further, the employee shall reimburse the employer or carrier
11 50 percent of the physician's cancellation or no-show fee
12 unless the employer or carrier that schedules the examination
13 fails to timely provide to the employee a written confirmation
14 of the date of the examination pursuant to paragraph (c) which
15 includes an explanation of why he or she failed to appear. The
16 employee may appeal to a judge of compensation claims for
17 reimbursement when the employer or carrier withholds payment
18 in excess of the authority granted by this section.
19 (e) No medical opinion other than the opinion of a
20 medical advisor appointed by the judge of compensation claims
21 or the department agency, an independent medical examiner, or
22 an authorized treating provider is admissible in proceedings
23 before the judges of compensation claims.
24 (f) Attorney's fees incurred by an injured employee in
25 connection with delay of or opposition to an independent
26 medical examination, including, but not limited to, motions
27 for protective orders, are not recoverable under this chapter.
28 (g) When a medical dispute arises, the parties may
29 mutually agree to refer the employee to a licensed physician
30 specializing in the diagnosis and treatment of the medical
31 condition at issue for an independent medical examination and
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1 report. Such medical examination shall be referred to as a
2 "consensus independent medical examination." The findings and
3 conclusions of such mutually agreed upon consensus independent
4 medical examination shall be binding on the parties and shall
5 constitute resolution of the medical dispute addressed in the
6 independent consensus medical examination and in any
7 proceeding. Agreement by the parties to a consensus
8 independent medical examination shall not affect the
9 employer's, carrier's, or employee's entitlement to one
10 independent medical examination per accident as provided for
11 in this subsection.
12 (6) UTILIZATION REVIEW.--Carriers shall review all
13 bills, invoices, and other claims for payment submitted by
14 health care providers in order to identify overutilization and
15 billing errors, including compliance with practice parameters
16 and protocols of treatment established in accordance with this
17 chapter, and may hire peer review consultants or conduct
18 independent medical evaluations. Such consultants, including
19 peer review organizations, are immune from liability in the
20 execution of their functions under this subsection to the
21 extent provided in s. 766.101. If a carrier finds that
22 overutilization of medical services or a billing error has
23 occurred, or there is a violation of the practice parameters
24 and protocols of treatment established in accordance with this
25 chapter, it must disallow or adjust payment for such services
26 or error without order of a judge of compensation claims or
27 the agency, if the carrier, in making its determination, has
28 complied with this section and rules adopted by the agency.
29 (7) UTILIZATION AND REIMBURSEMENT DISPUTES.--
30 (a) Any health care provider, carrier, or employer who
31 elects to contest the disallowance or adjustment of payment by
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1 a carrier under subsection (6) must, within 30 days after
2 receipt of notice of disallowance or adjustment of payment,
3 petition the agency to resolve the dispute. The petitioner
4 must serve a copy of the petition on the carrier and on all
5 affected parties by certified mail. The petition must be
6 accompanied by all documents and records that support the
7 allegations contained in the petition. Failure of a petitioner
8 to submit such documentation to the agency results in
9 dismissal of the petition.
10 (b) The carrier must submit to the agency within 10
11 days after receipt of the petition all documentation
12 substantiating the carrier's disallowance or adjustment.
13 Failure of the carrier to timely submit the requested
14 documentation to the agency within 10 days constitutes a
15 waiver of all objections to the petition.
16 (c) Within 60 days after receipt of all documentation,
17 the agency must provide to the petitioner, the carrier, and
18 the affected parties a written determination of whether the
19 carrier properly adjusted or disallowed payment. The agency
20 must be guided by standards and policies set forth in this
21 chapter, including all applicable reimbursement schedules,
22 practice parameters, and protocols of treatment, in rendering
23 its determination.
24 (d) If the agency finds an improper disallowance or
25 improper adjustment of payment by an insurer, the insurer
26 shall reimburse the health care provider, facility, insurer,
27 or employer within 30 days, subject to the penalties provided
28 in this subsection.
29 (e) The agency shall adopt rules to carry out this
30 subsection. The rules may include provisions for consolidating
31
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1 petitions filed by a petitioner and expanding the timetable
2 for rendering a determination upon a consolidated petition.
3 (f) Any carrier that engages in a pattern or practice
4 of arbitrarily or unreasonably disallowing or reducing
5 payments to health care providers may be subject to one or
6 more of the following penalties imposed by the agency:
7 1. Repayment of the appropriate amount to the health
8 care provider.
9 2. An administrative fine assessed by the agency in an
10 amount not to exceed $5,000 per instance of improperly
11 disallowing or reducing payments.
12 3. Award of the health care provider's costs,
13 including a reasonable attorney's fee, for prosecuting the
14 petition.
15 (8) PATTERN OR PRACTICE OF OVERUTILIZATION.--
16 (a) Carriers must report to the agency all instances
17 of overutilization including, but not limited to, all
18 instances in which the carrier disallows or adjusts payment or
19 a determination has been made that the provided or recommended
20 treatment is in excess of the practice parameters and
21 protocols of treatment established in this chapter. The agency
22 shall determine whether a pattern or practice of
23 overutilization exists.
24 (b) If the agency determines that a health care
25 provider has engaged in a pattern or practice of
26 overutilization or a violation of this chapter or rules
27 adopted by the agency, including a pattern or practice of
28 providing treatment in excess of the practice parameters or
29 protocols of treatment, it may impose one or more of the
30 following penalties:
31
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1 1. An order of the agency barring the provider from
2 payment under this chapter;
3 2. Deauthorization of care under review;
4 3. Denial of payment for care rendered in the future;
5 4. Decertification of a health care provider certified
6 as an expert medical advisor under subsection (9) or of a
7 rehabilitation provider certified under s. 440.49;
8 5. An administrative fine assessed by the agency in an
9 amount not to exceed $5,000 per instance of overutilization or
10 violation; and
11 6. Notification of and review by the appropriate
12 licensing authority pursuant to s. 440.106(3).
13 (9) EXPERT MEDICAL ADVISORS.--
14 (a) The agency shall certify expert medical advisors
15 in each specialty to assist the agency and the judges of
16 compensation claims within the advisor's area of expertise as
17 provided in this section. The agency shall, in a manner
18 prescribed by rule, in certifying, recertifying, or
19 decertifying an expert medical advisor, consider the
20 qualifications, training, impartiality, and commitment of the
21 health care provider to the provision of quality medical care
22 at a reasonable cost. As a prerequisite for certification or
23 recertification, the agency shall require, at a minimum, that
24 an expert medical advisor have specialized workers'
25 compensation training or experience under the workers'
26 compensation system of this state and board certification or
27 board eligibility.
28 (b) The agency shall contract with one or more
29 entities that employ, contract with, or otherwise secure or
30 employ expert medical advisors to provide peer review or
31 expert medical consultation, opinions, and testimony to the
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1 agency or to a judge of compensation claims in connection with
2 resolving disputes relating to reimbursement, differing
3 opinions of health care providers, and health care and
4 physician services rendered under this chapter, including
5 utilization issues. The agency shall by rule establish the
6 qualifications of expert medical advisors, including training
7 and experience in the workers' compensation system in the
8 state and the expert medical advisor's knowledge of and
9 commitment to the standards of care, practice parameters, and
10 protocols established pursuant to this chapter. Expert medical
11 advisors contracting with the agency shall, as a term of such
12 contract, agree to provide consultation or services in
13 accordance with the timetables set forth in this chapter and
14 to abide by rules adopted by the agency, including, but not
15 limited to, rules pertaining to procedures for review of the
16 services rendered by health care providers and preparation of
17 reports and testimony or recommendations for submission to the
18 agency or the judge of compensation claims.
19 (c) If there is disagreement in the opinions of the
20 health care providers, if two health care providers disagree
21 on medical evidence supporting the employee's complaints or
22 the need for additional medical treatment, or if two health
23 care providers disagree that the employee is able to return to
24 work, the agency may, and the judge of compensation claims
25 shall, upon his or her own motion or within 15 days after
26 receipt of a written request by either the injured employee,
27 the employer, or the carrier, order the injured employee to be
28 evaluated by an expert medical advisor. The opinion of the
29 expert medical advisor is presumed to be correct unless there
30 is clear and convincing evidence to the contrary as determined
31 by the judge of compensation claims. The expert medical
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1 advisor appointed to conduct the evaluation shall have free
2 and complete access to the medical records of the employee. An
3 employee who fails to report to and cooperate with such
4 evaluation forfeits entitlement to compensation during the
5 period of failure to report or cooperate.
6 (d) The expert medical advisor must complete his or
7 her evaluation and issue his or her report to the agency or to
8 the judge of compensation claims within 15 45 days after
9 receipt of all medical records. The expert medical advisor
10 must furnish a copy of the report to the carrier and to the
11 employee.
12 (e) An expert medical advisor is not liable under any
13 theory of recovery for evaluations performed under this
14 section without a showing of fraud or malice. The protections
15 of s. 766.101 apply to any officer, employee, or agent of the
16 agency and to any officer, employee, or agent of any entity
17 with which the agency has contracted under this subsection.
18 (f) If the agency or a judge of compensation claims
19 orders determines that the services of a certified expert
20 medical advisor are required to resolve a dispute under this
21 section, the party requesting such examination carrier must
22 compensate the advisor for his or her time in accordance with
23 a schedule adopted by the agency. If the employee prevails in
24 a dispute as determined in an order by a judge of compensation
25 claims based upon the expert medical advisor's findings, the
26 employer or carrier shall pay for the costs of such expert
27 medical advisor. If a judge of compensation claims, upon his
28 or her motion, finds that an expert medical advisor is needed
29 to resolve the dispute, the carrier must compensate the
30 advisor for his or her time in accordance with a schedule
31 adopted by the agency. The agency may assess a penalty not to
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1 exceed $500 against any carrier that fails to timely
2 compensate an advisor in accordance with this section.
3 (10) WITNESS FEES.--Any health care provider who gives
4 a deposition shall be allowed a witness fee. The amount
5 charged by the witness may not exceed $200 per hour. An expert
6 witness who has never provided direct professional services to
7 a party but has merely reviewed medical records and provided
8 an expert opinion or has provided only direct professional
9 services that were unrelated to the workers' compensation case
10 may not be allowed a witness fee in excess of $200 per day.
11 (11) AUDITS BY AGENCY FOR HEALTH CARE ADMINISTRATION
12 AND THE DEPARTMENT OF INSURANCE; JURISDICTION.--
13 (a) The Agency for Health Care Administration may
14 investigate health care providers to determine whether
15 providers are complying with this chapter and with rules
16 adopted by the agency, whether the providers are engaging in
17 overutilization, and whether providers are engaging in
18 improper billing practices, and whether providers are adhering
19 to practice parameters and protocols established in accordance
20 with this chapter . If the agency finds that a health care
21 provider has improperly billed, overutilized, or failed to
22 comply with agency rules or the requirements of this chapter,
23 including, but not limited to, practice parameters and
24 protocols established in accordance with this chapter, it must
25 notify the provider of its findings and may determine that the
26 health care provider may not receive payment from the carrier
27 or may impose penalties as set forth in subsection (8) or
28 other sections of this chapter. If the health care provider
29 has received payment from a carrier for services that were
30 improperly billed, that constitute overutilization, or that
31 were outside practice parameters or protocols established in
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1 accordance with this chapter or for overutilization, it must
2 return those payments to the carrier. The agency may assess a
3 penalty not to exceed $500 for each overpayment that is not
4 refunded within 30 days after notification of overpayment by
5 the agency or carrier.
6 (b) The department shall monitor and audit carriers as
7 provided in s. 624.3161, to determine if medical bills are
8 paid in accordance with this section and department rules. Any
9 employer, if self-insured, or carrier found by the division
10 not to be within 90 percent compliance as to the payment of
11 medical bills after July 1, 1994, must be assessed a fine not
12 to exceed 1 percent of the prior year's assessment levied
13 against such entity under s. 440.51 for every quarter in which
14 the entity fails to attain 90-percent compliance. The
15 department shall fine or otherwise discipline an employer or
16 carrier, pursuant to this chapter, the insurance code, or
17 rules adopted by the department, for each late payment of
18 compensation that is below the minimum 95-percent 90-percent
19 performance standard. Any carrier that is found to be not in
20 compliance in subsequent consecutive quarters must implement a
21 medical-bill review program approved by the division, and the
22 carrier is subject to disciplinary action by the Department of
23 Insurance.
24 (c) The agency has exclusive jurisdiction to decide
25 any matters concerning reimbursement, to resolve any
26 overutilization dispute under subsection (7), and to decide
27 any question concerning overutilization under subsection (8),
28 which question or dispute arises after January 1, 1994.
29 (d) The following agency actions do not constitute
30 agency action subject to review under ss. 120.569 and 120.57
31 and do not constitute actions subject to s. 120.56: referral
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1 by the entity responsible for utilization review; a decision
2 by the agency to refer a matter to a peer review committee;
3 establishment by a health care provider or entity of
4 procedures by which a peer review committee reviews the
5 rendering of health care services; and the review proceedings,
6 report, and recommendation of the peer review committee.
7 (12) CREATION OF THREE-MEMBER PANEL; GUIDES OF MAXIMUM
8 REIMBURSEMENT ALLOWANCES.--
9 (a) A three-member panel is created, consisting of the
10 Insurance Commissioner, or the Insurance Commissioner's
11 designee, and two members to be appointed by the Governor,
12 subject to confirmation by the Senate, one member who, on
13 account of present or previous vocation, employment, or
14 affiliation, shall be classified as a representative of
15 employers, the other member who, on account of previous
16 vocation, employment, or affiliation, shall be classified as a
17 representative of employees. The panel shall determine
18 statewide schedules of maximum reimbursement allowances for
19 medically necessary treatment, care, and attendance provided
20 by physicians, hospitals, ambulatory surgical centers,
21 work-hardening programs, pain programs, and durable medical
22 equipment. The maximum reimbursement allowances for inpatient
23 hospital care shall be based on a schedule of per diem rates,
24 to be approved by the three-member panel no later than March
25 1, 1994, to be used in conjunction with a precertification
26 manual as determined by the department, including maximum
27 hours in which an outpatient may remain in observation status,
28 which shall not exceed 23 hours agency. All compensable
29 charges for hospital outpatient care shall be reimbursed at 75
30 percent of usual and customary charges, except as otherwise
31 provided by this subsection. Until the three-member panel
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1 approves a schedule of per diem rates for inpatient hospital
2 care and it becomes effective, all compensable charges for
3 hospital inpatient care must be reimbursed at 75 percent of
4 their usual and customary charges. Annually, the three-member
5 panel shall adopt schedules of maximum reimbursement
6 allowances for physicians, hospital inpatient care, hospital
7 outpatient care, ambulatory surgical centers, work-hardening
8 programs, and pain programs. However, the maximum percentage
9 of increase in the individual reimbursement allowance may not
10 exceed the percentage of increase in the Consumer Price Index
11 for the previous year. An individual physician, hospital,
12 ambulatory surgical center, pain program, or work-hardening
13 program shall be reimbursed either the usual and customary
14 charge for treatment, care, and attendance, the agreed-upon
15 contract price, or the maximum reimbursement allowance in the
16 appropriate schedule, whichever is less.
17 (b) It is the intent of the Legislature to increase
18 the schedule of maximum reimbursement allowances for selected
19 physicians effective January 1, 2004, and to pay for the
20 increases through reductions in payments to hospitals.
21 Revisions developed pursuant to this subsection are limited to
22 the following:
23 1. Payments for outpatient physical, occupational, and
24 speech therapy provided by hospitals shall be reduced to the
25 schedule of maximum reimbursement allowances for these
26 services which applies to nonhospital providers.
27 2. Payments for scheduled outpatient nonemergency
28 radiological and clinical laboratory services that are not
29 provided in conjunction with a surgical procedure shall be
30 reduced to the schedule of maximum reimbursement allowances
31 for these services which applies to nonhospital providers.
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1 3. Outpatient reimbursement for scheduled surgeries
2 shall be reduced from 75 percent of charges to 60 percent of
3 charges.
4 4. Maximum reimbursement for a physician licensed
5 under chapter 458 or chapter 459 shall be increased to 110
6 percent of the reimbursement allowed by Medicare, using
7 appropriate codes and modifiers or the medical reimbursement
8 level adopted by the three-member panel as of January 1, 2003,
9 whichever is greater.
10 5. Maximum reimbursement for surgical procedures shall
11 be increased to 140 percent of the reimbursement allowed by
12 Medicare or the medical reimbursement level adopted by the
13 three-member panel as of January 1, 2003, whichever is
14 greater.
15 (c)(b) As to reimbursement for a prescription
16 medication, the reimbursement amount for a prescription shall
17 be the average wholesale price times 1.2 plus $4.18 for the
18 dispensing fee, except where the carrier has contracted for a
19 lower amount. Fees for pharmaceuticals and pharmaceutical
20 services shall be reimbursable at the applicable fee schedule
21 amount. Where the employer or carrier has contracted for such
22 services and the employee elects to obtain them through a
23 provider not a party to the contract, the carrier shall
24 reimburse at the schedule, negotiated, or contract price,
25 whichever is lower. No such contract shall rely on a provider
26 that is not reasonably accessible to the employee.
27 (d)(c) Reimbursement for all fees and other charges
28 for such treatment, care, and attendance, including treatment,
29 care, and attendance provided by any hospital or other health
30 care provider, ambulatory surgical center, work-hardening
31 program, or pain program, must not exceed the amounts provided
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1 by the uniform schedule of maximum reimbursement allowances as
2 determined by the panel or as otherwise provided in this
3 section. This subsection also applies to independent medical
4 examinations performed by health care providers under this
5 chapter. Until the three-member panel approves a uniform
6 schedule of maximum reimbursement allowances and it becomes
7 effective, all compensable charges for treatment, care, and
8 attendance provided by physicians, ambulatory surgical
9 centers, work-hardening programs, or pain programs shall be
10 reimbursed at the lowest maximum reimbursement allowance
11 across all 1992 schedules of maximum reimbursement allowances
12 for the services provided regardless of the place of service.
13 In determining the uniform schedule, the panel shall first
14 approve the data which it finds representative of prevailing
15 charges in the state for similar treatment, care, and
16 attendance of injured persons. Each health care provider,
17 health care facility, ambulatory surgical center,
18 work-hardening program, or pain program receiving workers'
19 compensation payments shall maintain records verifying their
20 usual charges. In establishing the uniform schedule of maximum
21 reimbursement allowances, the panel must consider:
22 1. The levels of reimbursement for similar treatment,
23 care, and attendance made by other health care programs or
24 third-party providers;
25 2. The impact upon cost to employers for providing a
26 level of reimbursement for treatment, care, and attendance
27 which will ensure the availability of treatment, care, and
28 attendance required by injured workers;
29 3. The financial impact of the reimbursement
30 allowances upon health care providers and health care
31 facilities, including trauma centers as defined in s.
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1 395.4001, and its effect upon their ability to make available
2 to injured workers such medically necessary remedial
3 treatment, care, and attendance. The uniform schedule of
4 maximum reimbursement allowances must be reasonable, must
5 promote health care cost containment and efficiency with
6 respect to the workers' compensation health care delivery
7 system, and must be sufficient to ensure availability of such
8 medically necessary remedial treatment, care, and attendance
9 to injured workers; and
10 4. The most recent average maximum allowable rate of
11 increase for hospitals determined by the Health Care Board
12 under chapter 408.
13 (e)(d) In addition to establishing the uniform
14 schedule of maximum reimbursement allowances, the panel shall:
15 1. Take testimony, receive records, and collect data
16 to evaluate the adequacy of the workers' compensation fee
17 schedule, nationally recognized fee schedules and alternative
18 methods of reimbursement to certified health care providers
19 and health care facilities for inpatient and outpatient
20 treatment and care.
21 2. Survey certified health care providers and health
22 care facilities to determine the availability and
23 accessibility of workers' compensation health care delivery
24 systems for injured workers.
25 3. Survey carriers to determine the estimated impact
26 on carrier costs and workers' compensation premium rates by
27 implementing changes to the carrier reimbursement schedule or
28 implementing alternative reimbursement methods.
29 4. Submit recommendations on or before January 1,
30 2003, and biennially thereafter, to the President of the
31 Senate and the Speaker of the House of Representatives on
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1 methods to improve the workers' compensation health care
2 delivery system.
3
4 The division shall provide data to the panel, including but
5 not limited to, utilization trends in the workers'
6 compensation health care delivery system. The division shall
7 provide the panel with an annual report regarding the
8 resolution of medical reimbursement disputes and any actions
9 pursuant to s. 440.13(8). The division shall provide
10 administrative support and service to the panel to the extent
11 requested by the panel.
12 (13) REMOVAL OF PHYSICIANS FROM LISTS OF THOSE
13 AUTHORIZED TO RENDER MEDICAL CARE.--The agency shall remove
14 from the list of physicians or facilities authorized to
15 provide remedial treatment, care, and attendance under this
16 chapter the name of any physician or facility found after
17 reasonable investigation to have:
18 (a) Engaged in professional or other misconduct or
19 incompetency in connection with medical services rendered
20 under this chapter;
21 (b) Exceeded the limits of his or her or its
22 professional competence in rendering medical care under this
23 chapter, or to have made materially false statements regarding
24 his or her or its qualifications in his or her application;
25 (c) Failed to transmit copies of medical reports to
26 the employer or carrier, or failed to submit full and truthful
27 medical reports of all his or her or its findings to the
28 employer or carrier as required under this chapter;
29 (d) Solicited, or employed another to solicit for
30 himself or herself or itself or for another, professional
31
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1 treatment, examination, or care of an injured employee in
2 connection with any claim under this chapter;
3 (e) Refused to appear before, or to answer upon
4 request of, the agency or any duly authorized officer of the
5 state, any legal question, or to produce any relevant book or
6 paper concerning his or her conduct under any authorization
7 granted to him or her under this chapter;
8 (f) Self-referred in violation of this chapter or
9 other laws of this state; or
10 (g) Engaged in a pattern of practice of
11 overutilization or a violation of this chapter or rules
12 adopted by the agency, including failure to adhere to practice
13 parameters and protocols established in accordance with this
14 chapter.
15 (14) PAYMENT OF MEDICAL FEES.--
16 (a) Except for emergency care treatment, fees for
17 medical services are payable only to a health care provider
18 certified and authorized to render remedial treatment, care,
19 or attendance under this chapter. Carriers shall pay,
20 disallow, or deny payment to health care providers in the
21 manner and at times set forth in this chapter. A health care
22 provider may not collect or receive a fee from an injured
23 employee within this state, except as otherwise provided by
24 this chapter. Such providers have recourse against the
25 employer or carrier for payment for services rendered in
26 accordance with this chapter. Payment to health care providers
27 or physicians shall be subject to the medical fee schedule and
28 applicable practice parameters and protocols, regardless of
29 whether the health care provider or claimant is asserting that
30 the payment should be made.
31
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1 (b) Fees charged for remedial treatment, care, and
2 attendance, except for independent medical examinations and
3 consensus independent medical examinations, may not exceed the
4 applicable fee schedules adopted under this chapter and
5 department rule. Notwithstanding any other provision in this
6 chapter, if a physician or health care provider specifically
7 agrees in writing to follow identified procedures aimed at
8 providing quality medical care to injured workers at
9 reasonable costs, deviations from established fee schedules
10 shall be permitted. Written agreements warranting deviations
11 may include, but are not limited to, the timely scheduling of
12 appointments for injured workers, participating in
13 return-to-work programs with injured workers' employers,
14 expediting the reporting of treatments provided to injured
15 workers, and agreeing to continuing education, utilization
16 review, quality assurance, precertification, and case
17 management systems that are designed to provide needed
18 treatment for injured workers.
19 (c) Notwithstanding any other provision of this
20 chapter, following overall maximum medical improvement from an
21 injury compensable under this chapter, the employee is
22 obligated to pay a copayment of $10 per visit for medical
23 services. The copayment shall not apply to emergency care
24 provided to the employee.
25 (15) PRACTICE PARAMETERS.--The practice parameters and
26 protocols mandated under this chapter shall be the practice
27 parameters and protocols adopted by the United States Agency
28 for Healthcare Research and Quality in effect on January 1,
29 2003.
30 (a) The Agency for Health Care Administration, in
31 conjunction with the department and appropriate health
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1 professional associations and health-related organizations
2 shall develop and may adopt by rule scientifically sound
3 practice parameters for medical procedures relevant to
4 workers' compensation claimants. Practice parameters developed
5 under this section must focus on identifying effective
6 remedial treatments and promoting the appropriate utilization
7 of health care resources. Priority must be given to those
8 procedures that involve the greatest utilization of resources
9 either because they are the most costly or because they are
10 the most frequently performed. Practice parameters for
11 treatment of the 10 top procedures associated with workers'
12 compensation injuries including the remedial treatment of
13 lower-back injuries must be developed by December 31, 1994.
14 (b) The guidelines may be initially based on
15 guidelines prepared by nationally recognized health care
16 institutions and professional organizations but should be
17 tailored to meet the workers' compensation goal of returning
18 employees to full employment as quickly as medically possible,
19 taking into consideration outcomes data collected from managed
20 care providers and any other inpatient and outpatient
21 facilities serving workers' compensation claimants.
22 (c) Procedures must be instituted which provide for
23 the periodic review and revision of practice parameters based
24 on the latest outcomes data, research findings, technological
25 advancements, and clinical experiences, at least once every 3
26 years.
27 (d) Practice parameters developed under this section
28 must be used by carriers and the agency in evaluating the
29 appropriateness and overutilization of medical services
30 provided to injured employees.
31
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1 (16) STANDARDS OF CARE.--The following standards of
2 care shall be followed in providing medical care under this
3 chapter:
4 (a) Abnormal anatomical findings alone, in the absence
5 of objective relevant medical findings, shall not be an
6 indicator of injury or illness, a justification for the
7 provision of remedial medical care or the assignment of
8 restrictions, or a foundation for limitations.
9 (b) At all times during evaluation and treatment, the
10 provider shall act on the premise that returning to work is an
11 integral part of the treatment plan. The goal of removing all
12 restrictions and limitations as early as appropriate shall be
13 part of the treatment plan on a continuous basis. The
14 assignment of restrictions and limitations shall be reviewed
15 with each patient exam and upon receipt of new information,
16 such as progress reports from physical therapists and other
17 providers. Consideration shall be given to upgrading or
18 removing the restrictions and limitations with each patient
19 exam, based upon the presence or absence of objective relevant
20 medical findings.
21 (c) Reasonable necessary medical care of injured
22 employees shall in all situations:
23 1. Utilize a high intensity, short duration treatment
24 approach that focuses on early activation and restoration of
25 function whenever possible.
26 2. Include reassessment of the treatment plans,
27 regimes, therapies, prescriptions, and functional limitations
28 or restrictions prescribed by the provider every 30 days.
29 3. Be focused on treatment of the individual
30 employee's specific clinical dysfunction or status and shall
31 not be based upon nondescript diagnostic labels.
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1
2 All treatment shall be inherently scientifically logical and
3 the evaluation or treatment procedure must match the
4 documented physiologic and clinical problem. Treatment shall
5 match the type, intensity, and duration of service required by
6 the problem identified.
7 (17) Failure to comply with this section shall be
8 considered a violation of this chapter and is subject to
9 penalties as provided for in s. 440.525.
10 Section 16. Paragraphs (d) and (i) of subsection (1)
11 and subsections (2), (6), (7), (8), (9), (10), (11), (17), and
12 (25) of section 440.134, Florida Statutes, are amended to
13 read:
14 440.134 Workers' compensation managed care
15 arrangement.--
16 (1) As used in this section, the term:
17 (d) "Grievance" means a written complaint, other than
18 a petition for benefits, filed by the injured worker pursuant
19 to the requirements of the managed care arrangement,
20 expressing dissatisfaction with the medical care provided by
21 an insurer's workers' compensation managed care arrangement's
22 refusal to provide medical care or the medical care provided
23 arrangement health care providers, expressed in writing by an
24 injured worker.
25 (i) "Medical care coordinator" means a primary care
26 provider within a provider network who is responsible for
27 managing the medical care of an injured worker including
28 determining other health care providers and health care
29 facilities to which the injured employee will be referred for
30 evaluation or treatment. A medical care coordinator shall be a
31 physician licensed under chapter 458, or an osteopathic
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1 physician licensed under chapter 459, a chiropractic physician
2 licensed under chapter 460, or a podiatric physician licensed
3 under chapter 461.
4 (2)(a) The self-insured employer or carrier may,
5 subject to the terms and limitations specified elsewhere in
6 this section and chapter, furnish to the employee solely
7 through managed care arrangements such medically necessary
8 remedial treatment, care, and attendance for such period as
9 the nature of the injury or the process of recovery requires
10 and which shall be in accordance with practice parameters and
11 protocols established pursuant to this chapter. For any
12 self-insured employer or carrier who elects to deliver the
13 medical benefits required by this chapter through a method
14 other than a workers' compensation managed care arrangement,
15 the discontinuance of the use of the workers' compensation
16 managed care arrangement shall be without regard to the date
17 of the accident, notwithstanding any other provision of law or
18 rule.
19 (b) The agency shall authorize an insurer to offer or
20 utilize a workers' compensation managed care arrangement after
21 the insurer files a completed application along with the
22 payment of a $1,000 application fee, and upon the agency's
23 being satisfied that the applicant has the ability to provide
24 quality of care consistent with the prevailing professional
25 standards of care and the insurer and its workers'
26 compensation managed care arrangement otherwise meets the
27 requirements of this section. No insurer may offer or utilize
28 a managed care arrangement without such authorization. The
29 authorization, unless sooner suspended or revoked, shall
30 automatically expire 2 years after the date of issuance unless
31 renewed by the insurer. The authorization shall be renewed
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1 upon application for renewal and payment of a renewal fee of
2 $1,000, provided that the insurer is in compliance with the
3 requirements of this section and any rules adopted hereunder.
4 An application for renewal of the authorization shall be made
5 90 days prior to expiration of the authorization, on forms
6 provided by the agency. The renewal application shall not
7 require the resubmission of any documents previously filed
8 with the agency if such documents have remained valid and
9 unchanged since their original filing.
10 (6) The proposed managed care plan of operation must
11 include:
12 (a) A statement or map providing a clear description
13 of the service area.
14 (b) A description of the grievance procedure to be
15 used.
16 (c) A description of the quality assurance program
17 which assures that the health care services provided to
18 workers shall be rendered under reasonable standards of
19 quality of care consistent with the prevailing standards of
20 medical practice in the medical community. The program shall
21 include, but not be limited to:
22 1. A written statement of goals and objectives that
23 stresses health and return-to-work outcomes as the principal
24 criteria for the evaluation of the quality of care rendered to
25 injured workers.
26 2. A written statement describing how methodology has
27 been incorporated into an ongoing system for monitoring of
28 care that is individual case oriented and, when implemented,
29 can provide interpretation and analysis of patterns of care
30 rendered to individual patients by individual providers.
31
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1 3. Written procedures for taking appropriate remedial
2 action whenever, as determined under the quality assurance
3 program, inappropriate or substandard services have been
4 provided or services that should have been furnished have not
5 been provided.
6 4. A written plan, which includes ongoing review, for
7 providing review of physicians and other licensed medical
8 providers.
9 5. Appropriate financial incentives to reduce service
10 costs and utilization without sacrificing the quality of
11 service.
12 6. Adequate methods of peer review and utilization
13 review. The utilization review process shall include a health
14 care facility's facilities precertification mechanism,
15 including, but not limited to, all elective admissions and
16 nonemergency surgeries and adherence to practice parameters
17 and protocols established in accordance with this chapter.
18 7. Provisions for resolution of disputes arising
19 between a health care provider and an insurer regarding
20 reimbursements and utilization review.
21 8. Availability of a process for aggressive medical
22 care coordination, as well as a program involving cooperative
23 efforts by the workers, the employer, and the workers'
24 compensation managed care arrangement to promote early return
25 to work for injured workers.
26 9. A written plan allowing for the independent medical
27 examination provided for in s. 440.13(5). Notwithstanding any
28 provision to the contrary, the costs for the independent
29 medical examination shall be paid by the carrier if such
30 examination is performed by a physician in the provider
31 network. Otherwise, such costs shall be paid in accordance
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1 with s. 440.13(5). An independent medical examination
2 requested by a claimant and paid for by the carrier shall
3 constitute the claimant's one independent medical examination
4 per accident under s. 440.13(5). A process allowing employees
5 to obtain one second medical opinion in the same specialty and
6 within the provider network during the course of treatment for
7 a work-related injury.
8 10. A provision for the selection of a primary care
9 provider by the employee from among primary providers in the
10 provider network.
11 11. The written information proposed to be used by the
12 insurer to comply with subparagraph 8.
13 (7) Written procedures to provide the insurer with
14 timely medical records and information including, but not
15 limited to, work status, work restrictions, date of maximum
16 medical improvement, permanent impairment ratings, and other
17 information as required, including information demonstrating
18 compliance with the practice parameters and protocols of
19 treatment established pursuant to this chapter.
20 (8) Evidence that appropriate health care providers
21 and administrative staff of the insurer's workers'
22 compensation managed care arrangement have received training
23 and education on the provisions of this chapter; and the
24 administrative rules that govern the provision of remedial
25 treatment, care, and attendance of injured workers; and the
26 practice parameters and protocols of treatment established
27 pursuant to this chapter.
28 (9) Written procedures and methods to prevent
29 inappropriate or excessive treatment that are in accordance
30 with the practice parameters and protocols of treatment
31 established pursuant to this chapter.
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1 (10) Written procedures and methods for the management
2 of an injured worker's medical care by a medical care
3 coordinator including:
4 (a) The mechanism for assuring that covered employees
5 receive all initial covered services from a primary care
6 provider participating in the provider network, except for
7 emergency care.
8 (b) The mechanism for assuring that all continuing
9 covered services be received from the same primary care
10 provider participating in the provider network that provided
11 the initial covered services, except when services from
12 another provider are authorized by the medical care
13 coordinator pursuant to paragraph (d).
14 (c) The policies and procedures for allowing an
15 employee one change to another provider within the same
16 specialty and provider network as the authorized treating
17 physician during the course of treatment for a work-related
18 injury, in accordance with the procedures provided in s.
19 440.13(2)(f), if a request is made to the medical care
20 coordinator by the employee; and requiring that special
21 provision be made for more than one such referral through the
22 arrangement's grievance procedures.
23 (d) The process for assuring that all referrals
24 authorized by a medical care coordinator, in accordance with
25 the practice parameters and protocols of treatment established
26 pursuant to this chapter, are made to the participating
27 network providers, unless medically necessary treatment, care,
28 and attendance are not available and accessible to the injured
29 worker in the provider network.
30 (e) Assignment of a medical care coordinator licensed
31 under chapter 458 or chapter 459 to manage care by physicians
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1 licensed under chapter 458 or chapter 459, a medical care
2 coordinator licensed under chapter 460 to manage care by
3 physicians licensed under chapter 460, and a medical care
4 coordinator licensed under chapter 461 to manage care by
5 physicians licensed under chapter 461 upon request by an
6 injured employee for care by a physician licensed under
7 chapter 458, chapter 459, chapter 460, or chapter 461.
8 (11) A description of the use of workers' compensation
9 practice parameters and protocols of treatment for health care
10 services when adopted by the agency.
11 (17) Notwithstanding any other provisions of this
12 chapter, when a carrier provides medical care through a
13 workers' compensation managed care arrangement, pursuant to
14 this section, those workers who are subject to the arrangement
15 must receive medical services for work-related injuries and
16 diseases as prescribed in the contract, provided the employer
17 and carrier have provided notice to the employees of the
18 arrangement in a manner approved by the agency and the medical
19 services are in accordance with the practice parameters and
20 protocols established pursuant to this chapter. Treatment
21 received outside the workers' compensation managed care
22 arrangement is not compensable, regardless of the purpose of
23 the treatment, including, but not limited to, evaluations,
24 examinations, or diagnostic studies to determine causation
25 between medical findings and a compensable accident, the
26 existence or extent of impairments or disabilities, and
27 whether the injured employee has reached maximum medical
28 improvement, unless authorized by the carrier prior to the
29 treatment date.
30 (25) The agency shall adopt rules that specify:
31
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1 (a) Procedures for authorization and examination of
2 workers' compensation managed care arrangements by the agency.
3 (b) Requirements and procedures for authorization of
4 workers' compensation arrangement provider networks and
5 procedures for the agency to grant exceptions from
6 accessibility of services.
7 (c) Requirements and procedures for case management,
8 utilization management, and peer review.
9 (d) Requirements and procedures for quality assurance
10 and medical records.
11 (e) Requirements and procedures for dispute resolution
12 in conformance with this chapter.
13 (f) Requirements and procedures for employee and
14 provider education.
15 (g) Requirements and procedures for reporting data
16 regarding grievances, return-to-work outcomes, and provider
17 networks.
18 Section 17. Subsections (1) and (4)and paragraph (b)
19 of subsection (5) of section 440.14, Florida Statutes, are
20 amended to read:
21 440.14 Determination of pay.--
22 (1) Except as otherwise provided in this chapter, the
23 average weekly wages of the injured employee on the date of
24 the accident at the time of the injury shall be taken as the
25 basis upon which to compute compensation and shall be
26 determined, subject to the limitations of s. 440.12(2), as
27 follows:
28 (a) If the injured employee has worked in the
29 employment in which she or he was working on the date of the
30 accident at the time of the injury, whether for the same or
31 another employer, during substantially the whole of 13 weeks
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1 immediately preceding the accident injury, her or his average
2 weekly wage shall be one-thirteenth of the total amount of
3 wages earned in such employment during the 13 weeks. As used
4 in this paragraph, the term "substantially the whole of 13
5 weeks" means the calendar shall be deemed to mean and refer to
6 a constructive period of 13 weeks as a whole, which shall be
7 defined as the 13 calendar weeks before the date of the
8 accident, excluding the week during which the accident
9 occurred. a consecutive period of 91 days, and The term
10 "during substantially the whole of 13 weeks" shall be deemed
11 to mean during not less than 75 90 percent of the total
12 customary full-time hours of employment within such period
13 considered as a whole.
14 (b) If the injured employee has not worked in such
15 employment during substantially the whole of 13 weeks
16 immediately preceding the accident injury, the wages of a
17 similar employee in the same employment who has worked
18 substantially the whole of such 13 weeks shall be used in
19 making the determination under the preceding paragraph.
20 (c) If an employee is a seasonal worker and the
21 foregoing method cannot be fairly applied in determining the
22 average weekly wage, then the employee may use, instead of the
23 13 weeks immediately preceding the accident injury, the
24 calendar year or the 52 weeks immediately preceding the
25 accident injury. The employee will have the burden of proving
26 that this method will be more reasonable and fairer than the
27 method set forth in paragraphs (a) and (b) and, further, must
28 document prior earnings with W-2 forms, written wage
29 statements, or income tax returns. The employer shall have 30
30 days following the receipt of this written proof to adjust the
31 compensation rate, including the making of any additional
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1 payment due for prior weekly payments, based on the lower rate
2 compensation.
3 (d) If any of the foregoing methods cannot reasonably
4 and fairly be applied, the full-time weekly wages of the
5 injured employee shall be used, except as otherwise provided
6 in paragraph (e) or paragraph (f).
7 (e) If it is established that the injured employee was
8 under 22 years of age when the accident occurred injured and
9 that under normal conditions her or his wages should be
10 expected to increase during the period of disability, the fact
11 may be considered in arriving at her or his average weekly
12 wages.
13 (f) If it is established that the injured employee was
14 a part-time worker on the date of the accident at the time of
15 the injury, that she or he had adopted part-time employment as
16 a customary practice, and that under normal working conditions
17 she or he probably would have remained a part-time worker
18 during the period of disability, these factors shall be
19 considered in arriving at her or his average weekly wages. For
20 the purpose of this paragraph, the term "part-time worker"
21 means an individual who customarily works less than the
22 full-time hours or full-time workweek of a similar employee in
23 the same employment.
24 (g) If compensation is due for a fractional part of
25 the week, the compensation for such fractional part shall be
26 determined by dividing the weekly compensation rate by the
27 number of days employed per week to compute the amount due for
28 each day.
29 (4) Upon termination of the employee or upon
30 termination of the payment of fringe benefits of any employee
31 who is collecting indemnity benefits pursuant to s. 440.15(2)
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1 or (3)(b), the employer shall within 7 days of such
2 termination file a corrected 13-week wage statement reflecting
3 the wages paid and the fringe benefits that had been paid to
4 the injured employee, as provided in s. 440.02(27).
5 (5)
6 (b) The employee waives any entitlement to interest,
7 penalties, and attorney's fees during the period in which the
8 employee has not provided information concerning the loss of
9 earnings from concurrent employment. Carriers are not subject
10 to penalties by the division under s. 440.20(8)(b) and (c) for
11 unpaid compensation related to concurrent employment during
12 the period in which the employee has not provided information
13 concerning the loss of earnings from concurrent employment.
14 Section 18. Section 440.15, Florida Statutes, is
15 amended to read:
16 440.15 Compensation for disability.--Compensation for
17 disability shall be paid to the employee, subject to the
18 limits provided in s. 440.12(2), as follows:
19 (1) PERMANENT TOTAL DISABILITY.--
20 (a) In case of total disability adjudged to be
21 permanent, 66 2/3 percent of the average weekly wages shall be
22 paid to the employee during the continuance of such total
23 disability. No compensation shall be payable under this
24 section if the employee is engaged in, or is physically
25 capable of engaging in, at least sedentary employment.
26 (b) In the following cases, an injured employee is
27 presumed to be permanently and totally disabled unless the
28 employer or carrier establishes that the employee is
29 physically capable of engaging in at least sedentary
30 employment within a 50-mile radius of the employee's
31 residence:
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1 1. Spinal cord injury involving severe paralysis of an
2 arm, a leg, or the trunk;
3 2. Amputation of an arm, a hand, a foot, or a leg
4 involving the effective loss of use of that appendage;
5 3. Severe brain or closed-head injury as evidenced by:
6 a. Severe sensory or motor disturbances;
7 b. Severe communication disturbances;
8 c. Severe complex integrated disturbances of cerebral
9 function;
10 d. Severe episodic neurological disorders; or
11 e. Other severe brain and closed-head injury
12 conditions at least as severe in nature as any condition
13 provided in sub-subparagraphs a.-d.;
14 4. Second-degree or third-degree burns of 25 percent
15 or more of the total body surface or third-degree burns of 5
16 percent or more to the face and hands; or
17 5. Total or industrial blindness.
18
19 In all other cases, in order to obtain permanent total
20 disability benefits, the employee must establish that he or
21 she is not able to engage in at least sedentary employment,
22 within a 50-mile radius of the employee's residence, due to
23 his or her physical limitation. Entitlement to such benefits
24 shall cease when the employee reaches age 75, unless the
25 employee is not eligible for social security benefits under 42
26 U.S.C. s. 402 or s. 423 because the employee's compensable
27 injury has prevented the employee from working sufficient
28 quarters to be eligible for such benefits, notwithstanding any
29 age limits. If the accident occurred on or after the employee
30 reaches age 70, benefits shall be payable during the
31 continuance of permanent total disability, not to exceed 5
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1 years following the determination of permanent total
2 disability. Only a catastrophic injury as defined in s. 440.02
3 shall, in the absence of conclusive proof of a substantial
4 earning capacity, constitute permanent total disability. Only
5 claimants with catastrophic injuries or claimants who are
6 incapable of engaging in employment, as described in this
7 paragraph, are eligible for permanent total benefits. In no
8 other case may permanent total disability be awarded.
9 (c) In cases of permanent total disability resulting
10 from injuries that occurred prior to July 1, 1955, such
11 payments shall not be made in excess of 700 weeks.
12 (d) If an employee who is being paid compensation for
13 permanent total disability becomes rehabilitated to the extent
14 that she or he establishes an earning capacity, the employee
15 shall be paid, instead of the compensation provided in
16 paragraph (a), benefits pursuant to subsection (3). The
17 department shall adopt rules to enable a permanently and
18 totally disabled employee who may have reestablished an
19 earning capacity to undertake a trial period of reemployment
20 without prejudicing her or his return to permanent total
21 status in the case that such employee is unable to sustain an
22 earning capacity.
23 (e)1. The employer's or carrier's right to conduct
24 vocational evaluations or testing by the employer's or
25 carrier's chosen rehabilitation advisor or provider pursuant
26 to s. 440.491 continues even after the employee has been
27 accepted or adjudicated as entitled to compensation under this
28 chapter and costs for such evaluations and testing shall be
29 borne by the employer or carrier, respectively. This right
30 includes, but is not limited to, instances in which such
31 evaluations or tests are recommended by a treating physician
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1 or independent medical-examination physician, instances
2 warranted by a change in the employee's medical condition, or
3 instances in which the employee appears to be making
4 appropriate progress in recuperation. This right may not be
5 exercised more than once every calendar year.
6 2. The carrier must confirm the scheduling of the
7 vocational evaluation or testing in writing, and must notify
8 the employee and the employee's counsel, if any, at least 7
9 days before the date on which vocational evaluation or testing
10 is scheduled to occur.
11 3. Pursuant to an order of the judge of compensation
12 claims, The employer or carrier may withhold payment of
13 benefits for permanent total disability or supplements for any
14 period during which the employee willfully fails or refuses to
15 appear without good cause for the scheduled vocational
16 evaluation or testing.
17 (f)1. If permanent total disability results from
18 injuries that occurred subsequent to June 30, 1955, and for
19 which the liability of the employer for compensation has not
20 been discharged under s. 440.20(11), the injured employee
21 shall receive additional weekly compensation benefits equal to
22 3 5 percent of her or his weekly compensation rate, as
23 established pursuant to the law in effect on the date of her
24 or his injury, multiplied by the number of calendar years
25 since the date of injury. The weekly compensation payable and
26 the additional benefits payable under this paragraph, when
27 combined, may not exceed the maximum weekly compensation rate
28 in effect at the time of payment as determined pursuant to s.
29 440.12(2). Entitlement to These supplemental payments shall
30 not be paid or payable after the employee attains cease at age
31 62, regardless of whether if the employee has applied for or
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1 is eligible to apply is eligible for social security benefits
2 under 42 U.S.C. s. ss. 402 or s. and 423, unless the employee
3 is not eligible for social security benefits under 42 U.S.C.
4 s. 402 or s. 423 because the employee's compensable injury has
5 prevented the employee from working sufficient quarters to be
6 eligible for such benefits whether or not the employee has
7 applied for such benefits. These supplemental benefits shall
8 be paid by the department out of the Workers' Compensation
9 Administration Trust Fund when the injury occurred subsequent
10 to June 30, 1955, and before July 1, 1984. These supplemental
11 benefits shall be paid by the employer when the injury
12 occurred on or after July 1, 1984. Supplemental benefits are
13 not payable for any period prior to October 1, 1974.
14 2.a. The department shall provide by rule for the
15 periodic reporting to the department of all earnings of any
16 nature and social security income by the injured employee
17 entitled to or claiming additional compensation under
18 subparagraph 1. Neither the department nor the employer or
19 carrier shall make any payment of those additional benefits
20 provided by subparagraph 1. for any period during which the
21 employee willfully fails or refuses to report upon request by
22 the department in the manner prescribed by such rules.
23 b. The department shall provide by rule for the
24 periodic reporting to the employer or carrier of all earnings
25 of any nature and social security income by the injured
26 employee entitled to or claiming benefits for permanent total
27 disability. The employer or carrier is not required to make
28 any payment of benefits for permanent total disability for any
29 period during which the employee willfully fails or refuses to
30 report upon request by the employer or carrier in the manner
31 prescribed by such rules or if any employee who is receiving
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1 permanent total disability benefits refuses to apply for or
2 cooperate with the employer or carrier in applying for social
3 security benefits.
4 3. When an injured employee receives a full or partial
5 lump-sum advance of the employee's permanent total disability
6 compensation benefits, the employee's benefits under this
7 paragraph shall be computed on the employee's weekly
8 compensation rate as reduced by the lump-sum advance.
9 (2) TEMPORARY TOTAL DISABILITY.--
10 (a) Subject to subsection (7), in case of disability
11 total in character but temporary in quality, 66 2/3 percent of
12 the average weekly wages shall be paid to the employee during
13 the continuance thereof, not to exceed 104 weeks except as
14 provided in this subsection, s. 440.12(1), and s. 440.14(3).
15 Once the employee reaches the maximum number of weeks allowed,
16 or the employee reaches the date of maximum medical
17 improvement, whichever occurs earlier, temporary disability
18 benefits shall cease and the injured worker's permanent
19 impairment shall be determined.
20 (b) Notwithstanding the provisions of paragraph (a),
21 an employee who has sustained the loss of an arm, leg, hand,
22 or foot, has been rendered a paraplegic, paraparetic,
23 quadriplegic, or quadriparetic, or has lost the sight of both
24 eyes shall be paid temporary total disability of 80 percent of
25 her or his average weekly wage. The increased temporary total
26 disability compensation provided for in this paragraph must
27 not extend beyond 6 months from the date of the accident;
28 however, such benefits shall not be due or payable if the
29 employee is eligible for, entitled to, or collecting permanent
30 total disability benefits. The compensation provided by this
31 paragraph is not subject to the limits provided in s.
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1 440.12(2), but instead is subject to a maximum weekly
2 compensation rate of $700. If, at the conclusion of this
3 period of increased temporary total disability compensation,
4 the employee is still temporarily totally disabled, the
5 employee shall continue to receive temporary total disability
6 compensation as set forth in paragraphs (a) and (c). The
7 period of time the employee has received this increased
8 compensation will be counted as part of, and not in addition
9 to, the maximum periods of time for which the employee is
10 entitled to compensation under paragraph (a) but not paragraph
11 (c).
12 (c) Temporary total disability benefits paid pursuant
13 to this subsection shall include such period as may be
14 reasonably necessary for training in the use of artificial
15 members and appliances, and shall include such period as the
16 employee may be receiving training and education under a
17 program pursuant to s. 440.491. Notwithstanding s. 440.02, the
18 date of maximum medical improvement for purposes of paragraph
19 (3)(b) shall be no earlier than the last day for which such
20 temporary disability benefits are paid.
21 (d) The department shall, by rule, provide for the
22 periodic reporting to the department, employer, or carrier of
23 all earned income, including income from social security, by
24 the injured employee who is entitled to or claiming benefits
25 for temporary total disability. The employer or carrier is not
26 required to make any payment of benefits for temporary total
27 disability for any period during which the employee willfully
28 fails or refuses to report upon request by the employer or
29 carrier in the manner prescribed by the rules. The rule must
30 require the claimant to personally sign the claim form and
31
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1 attest that she or he has reviewed, understands, and
2 acknowledges the foregoing.
3 (3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.--
4 (a) Impairment benefits.--
5 1. Once the employee has reached the date of maximum
6 medical improvement, impairment benefits are due and payable
7 within 14 20 days after the carrier has knowledge of the
8 impairment.
9 (b)2. The three-member panel, in cooperation with the
10 department, shall establish and use a uniform permanent
11 impairment rating schedule. This schedule must be based on
12 medically or scientifically demonstrable findings as well as
13 the systems and criteria set forth in the American Medical
14 Association's Guides to the Evaluation of Permanent
15 Impairment; the Snellen Charts, published by American Medical
16 Association Committee for Eye Injuries; and the Minnesota
17 Department of Labor and Industry Disability Schedules. The
18 schedule must should be based upon objective findings. The
19 schedule shall be more comprehensive than the AMA Guides to
20 the Evaluation of Permanent Impairment and shall expand the
21 areas already addressed and address additional areas not
22 currently contained in the guides. On August 1, 1979, and
23 pending the adoption, by rule, of a permanent schedule, Guides
24 to the Evaluation of Permanent Impairment, copyright 1977,
25 1971, 1988, by the American Medical Association, shall be the
26 temporary schedule and shall be used for the purposes hereof.
27 For injuries after July 1, 1990, pending the adoption by rule
28 of a uniform disability rating agency schedule, the Minnesota
29 Department of Labor and Industry Disability Schedule shall be
30 used unless that schedule does not address an injury. In such
31 case, the Guides to the Evaluation of Permanent Impairment by
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1 the American Medical Association shall be used. Determination
2 of permanent impairment under this schedule must be made by a
3 physician licensed under chapter 458, a doctor of osteopathic
4 medicine licensed under chapters 458 and 459, a chiropractic
5 physician licensed under chapter 460, a podiatric physician
6 licensed under chapter 461, an optometrist licensed under
7 chapter 463, or a dentist licensed under chapter 466, as
8 appropriate considering the nature of the injury. No other
9 persons are authorized to render opinions regarding the
10 existence of or the extent of permanent impairment.
11 (c)3. All impairment income benefits shall be based on
12 an impairment rating using the impairment schedule referred to
13 in paragraph (b) subparagraph 2. Impairment income benefits
14 are paid biweekly weekly at the rate of 75 50 percent of the
15 employee's average weekly temporary total disability benefit
16 not to exceed the maximum weekly benefit under s. 440.12;
17 provided, however, that such benefits shall be reduced by 50
18 percent for each week in which the employee has earned income
19 equal to or in excess of the employee's average weekly wage.
20 An employee's entitlement to impairment income benefits begins
21 the day after the employee reaches maximum medical improvement
22 or the expiration of temporary benefits, whichever occurs
23 earlier, and continues until the earlier of:
24 1.a. The expiration of a period computed at the rate
25 of 3 weeks for each percentage point of impairment; or
26 2.b. The death of the employee.
27
28 Impairment income benefits as defined by this subsection are
29 payable only for impairment ratings for physical impairments.
30 If objective medical findings can substantiate a permanent
31 psychiatric impairment resulting from the accident, permanent
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1 impairment benefits are limited for the permanent psychiatric
2 impairment to 1-percent permanent impairment.
3 (d)4. After the employee has been certified by a
4 doctor as having reached maximum medical improvement or 6
5 weeks before the expiration of temporary benefits, whichever
6 occurs earlier, the certifying doctor shall evaluate the
7 condition of the employee and assign an impairment rating,
8 using the impairment schedule referred to in paragraph (b)
9 subparagraph 2. Compensation is not payable for the mental,
10 psychological, or emotional injury arising out of depression
11 from being out of work. If the certification and evaluation
12 are performed by a doctor other than the employee's treating
13 doctor, the certification and evaluation must be submitted to
14 the treating doctor, the employee, and the carrier within 10
15 days after the evaluation. and The treating doctor must
16 indicate to the carrier agreement or disagreement with the
17 other doctor's certification and evaluation.
18 1. The certifying doctor shall issue a written report
19 to the department, the employee, and the carrier certifying
20 that maximum medical improvement has been reached, stating the
21 impairment rating to the body as a whole, and providing any
22 other information required by the department by rule. The
23 carrier shall establish an overall maximum medical improvement
24 date and permanent impairment rating, based upon all such
25 reports.
26 2. Within 14 days after the carrier's knowledge of
27 each maximum medical improvement date and impairment rating to
28 the body as a whole upon which the carrier is paying benefits,
29 the carrier shall report such maximum medical improvement date
30 and, when determined, the overall maximum medical improvement
31 date and associated impairment rating to the department in a
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1 format as set forth in department rule. If the employee has
2 not been certified as having reached maximum medical
3 improvement before the expiration of 98 102 weeks after the
4 date temporary total disability benefits begin to accrue, the
5 carrier shall notify the treating doctor of the requirements
6 of this section.
7 (e)5. The carrier shall pay the employee impairment
8 income benefits for a period based on the impairment rating.
9 (f)6. The department may by rule specify forms and
10 procedures governing the method of payment of wage loss and
11 impairment benefits under this section for dates of accidents
12 before January 1, 1994, and for dates of accidents on or after
13 January 1, 1994.
14 (b) Supplemental benefits.--
15 1. All supplemental benefits must be paid in
16 accordance with this subsection. An employee is entitled to
17 supplemental benefits as provided in this paragraph as of the
18 expiration of the impairment period, if:
19 a. The employee has an impairment rating from the
20 compensable injury of 20 percent or more as determined
21 pursuant to this chapter;
22 b. The employee has not returned to work or has
23 returned to work earning less than 80 percent of the
24 employee's average weekly wage as a direct result of the
25 employee's impairment; and
26 c. The employee has in good faith attempted to obtain
27 employment commensurate with the employee's ability to work.
28 2. If an employee is not entitled to supplemental
29 benefits at the time of payment of the final weekly impairment
30 income benefit because the employee is earning at least 80
31 percent of the employee's average weekly wage, the employee
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1 may become entitled to supplemental benefits at any time
2 within 1 year after the impairment income benefit period ends
3 if:
4 a. The employee earns wages that are less than 80
5 percent of the employee's average weekly wage for a period of
6 at least 90 days;
7 b. The employee meets the other requirements of
8 subparagraph 1.; and
9 c. The employee's decrease in earnings is a direct
10 result of the employee's impairment from the compensable
11 injury.
12 3. If an employee earns wages that are at least 80
13 percent of the employee's average weekly wage for a period of
14 at least 90 days during which the employee is receiving
15 supplemental benefits, the employee ceases to be entitled to
16 supplemental benefits for the filing period. Supplemental
17 benefits that have been terminated shall be reinstated when
18 the employee satisfies the conditions enumerated in
19 subparagraph 2. and files the statement required under
20 subparagraph 4. Notwithstanding any other provision, if an
21 employee is not entitled to supplemental benefits for 12
22 consecutive months, the employee ceases to be entitled to any
23 additional income benefits for the compensable injury. If the
24 employee is discharged within 12 months after losing
25 entitlement under this subsection, benefits may be reinstated
26 if the employee was discharged at that time with the intent to
27 deprive the employee of supplemental benefits.
28 4. After the initial determination of supplemental
29 benefits, the employee must file a statement with the carrier
30 stating that the employee has earned less than 80 percent of
31 the employee's average weekly wage as a direct result of the
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1 employee's impairment, stating the amount of wages the
2 employee earned in the filing period, and stating that the
3 employee has in good faith sought employment commensurate with
4 the employee's ability to work. The statement must be filed
5 quarterly on a form and in the manner prescribed by the
6 department. The department may modify the filing period as
7 appropriate to an individual case. Failure to file a statement
8 relieves the carrier of liability for supplemental benefits
9 for the period during which a statement is not filed.
10 5. The carrier shall begin payment of supplemental
11 benefits not later than the seventh day after the expiration
12 date of the impairment income benefit period and shall
13 continue to timely pay those benefits. The carrier may request
14 a mediation conference for the purpose of contesting the
15 employee's entitlement to or the amount of supplemental income
16 benefits.
17 6. Supplemental benefits are calculated quarterly and
18 paid monthly. For purposes of calculating supplemental
19 benefits, 80 percent of the employee's average weekly wage and
20 the average wages the employee has earned per week are
21 compared quarterly. For purposes of this paragraph, if the
22 employee is offered a bona fide position of employment that
23 the employee is capable of performing, given the physical
24 condition of the employee and the geographic accessibility of
25 the position, the employee's weekly wages are considered
26 equivalent to the weekly wages for the position offered to the
27 employee.
28 7. Supplemental benefits are payable at the rate of 80
29 percent of the difference between 80 percent of the employee's
30 average weekly wage determined pursuant to s. 440.14 and the
31 weekly wages the employee has earned during the reporting
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1 period, not to exceed the maximum weekly income benefit under
2 s. 440.12.
3 8. The department may by rule define terms that are
4 necessary for the administration of this section and forms and
5 procedures governing the method of payment of supplemental
6 benefits for dates of accidents before January 1, 1994, and
7 for dates of accidents on or after January 1, 1994.
8 (c) Duration of temporary impairment and supplemental
9 income benefits.--The employee's eligibility for temporary
10 benefits, impairment income benefits, and supplemental
11 benefits terminates on the expiration of 401 weeks after the
12 date of injury.
13 (g) Notwithstanding paragraph (c), for accidents
14 occurring on or after October 1, 2003, an employee's
15 entitlement to impairment income benefits begins the day after
16 the employee reaches maximum medical improvement or the
17 expiration of temporary benefits, whichever occurs earlier,
18 and continues for the following periods:
19 1. Two weeks of benefits are to be paid to the
20 employee for each percentage point of impairment from 1
21 percent up to and including 10 percent.
22 2. For each percentage point of impairment from 11
23 percent up to and including 15 percent, 3 weeks of benefits
24 are to be paid.
25 3. For each percentage point of impairment from 16
26 percent up to and including 20 percent, 4 weeks of benefits
27 are to be paid.
28 4. For each percentage point of impairment from 21
29 percent and higher, 6 weeks of benefits are to be paid.
30 (4) TEMPORARY PARTIAL DISABILITY.--
31
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1 (a) Subject to subsection (7), in case of temporary
2 partial disability, compensation shall be equal to 80 percent
3 of the difference between 80 percent of the employee's average
4 weekly wage and the salary, wages, and other remuneration the
5 employee is able to earn post injury, as compared weekly;
6 however, the weekly temporary partial disability benefits may
7 not exceed an amount equal to 66 2/3 percent of the employee's
8 average weekly wage at the time of accident injury. In order
9 to simplify the comparison of the preinjury average weekly
10 wage with the salary, wages, and other remuneration the
11 employee is able to earn post injury, the department may by
12 rule provide for payment of the initial installment of
13 temporary partial disability benefits to be paid as a partial
14 week so that payment for remaining weeks of temporary partial
15 disability can the modification of the weekly comparison so as
16 to coincide as closely as possible with the post injury
17 employer's work week injured worker's pay periods. The amount
18 determined to be the salary, wages, and other remuneration the
19 employee is able to earn shall in no case be less than the sum
20 actually being earned by the employee, including earnings from
21 sheltered employment. Benefits shall be payable under this
22 subsection only if overall maximum medical improvement has not
23 been reached and the medical conditions resulting from the
24 accident create restrictions on the injured employee's ability
25 to return to work.
26 (b) Within 5 business days after the carrier's
27 knowledge of the employee's release to restricted work, the
28 carrier shall mail to the employee and employer an
29 informational letter, adopted by department rule, explaining
30 the employee's possible eligibility and responsibilities for
31 temporary partial disability benefits.
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1 (c) When an employee returns to work with the
2 restrictions resulting from the accident and is earning wages
3 less than 80 percent of the preinjury average weekly wage, the
4 first installment of temporary partial disability benefits is
5 due 7 days after the last date of the post injury employer's
6 first biweekly work week. Thereafter, payment for temporary
7 partial benefits shall be paid biweekly no later than the 7th
8 day following the last day of each biweekly work week.
9 (d) If the employee is unable to return to work with
10 the restrictions resulting from the accident and is not
11 earning wages, salary, or other remuneration, temporary
12 partial disability benefits shall be paid no later than the
13 last day of each biweekly period. The employee shall notify
14 the carrier within 5 business days after returning to work.
15 Failure to notify the carrier of the establishment of an
16 earning capacity in the required time shall result in a
17 suspension or nonpayment of temporary partial disability
18 benefits until the proper notification is provided.
19 (e)(b) Such benefits shall be paid during the
20 continuance of such disability, not to exceed a period of 104
21 weeks, as provided by this subsection and subsection (2). Once
22 the injured employee reaches the maximum number of weeks,
23 temporary disability benefits cease and the injured worker's
24 permanent impairment must be determined. If the employee is
25 terminated from post injury employment based on the employee's
26 misconduct, temporary partial disability benefits are not
27 payable as provided for in this section. The department shall
28 may by rule specify forms and procedures governing the method
29 and time for of payment of temporary disability benefits for
30 dates of accidents before January 1, 1994, and for dates of
31 accidents on or after January 1, 1994.
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1 (5) SUBSEQUENT INJURY.--
2 (a) The fact that an employee has suffered previous
3 disability, impairment, anomaly, or disease, or received
4 compensation therefor, shall not preclude her or him from
5 benefits, as specified in paragraph (b), for a subsequent
6 aggravation or acceleration of the preexisting condition or
7 nor preclude benefits for death resulting therefrom, except
8 that no benefits shall be payable if the employee, at the time
9 of entering into the employment of the employer by whom the
10 benefits would otherwise be payable, falsely represents
11 herself or himself in writing as not having previously been
12 disabled or compensated because of such previous disability,
13 impairment, anomaly, or disease and the employer detrimentally
14 relies on the misrepresentation. Compensation for temporary
15 disability, medical benefits, and wage-loss benefits shall not
16 be subject to apportionment.
17 (b) If a compensable injury, disability, or need for
18 medical care permanent impairment, or any portion thereof, is
19 a result of aggravation or acceleration of a preexisting
20 condition, or is the result of merger with a preexisting
21 condition, only the disabilities and medical treatment
22 associated with such compensable injury shall be payable under
23 this chapter, excluding the degree of disability or medical
24 conditions existing at the time of the impairment rating or at
25 the time of the accident, regardless of whether the
26 preexisting condition was disabling at the time of the
27 accident or at the time of the impairment rating and without
28 considering whether the preexisting condition would be
29 disabling without the compensable accident impairment, an
30 employee eligible to receive impairment benefits under
31 paragraph (3)(a) shall receive such benefits for the total
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1 impairment found to result, excluding the degree of impairment
2 existing at the time of the subject accident or injury or
3 which would have existed by the time of the impairment rating
4 without the intervention of the compensable accident or
5 injury. The degree of permanent impairment or disability
6 attributable to the accident or injury shall be compensated in
7 accordance with this section, apportioning out the preexisting
8 condition based on the anatomical impairment rating
9 attributable to the preexisting condition. Medical benefits
10 shall be paid apportioning out the percentage of the need for
11 such care attributable to the preexisting condition paragraph
12 (3)(a). As used in this paragraph, "merger" means the
13 combining of a preexisting permanent impairment or disability
14 with a subsequent compensable permanent impairment or
15 disability which, when the effects of both are considered
16 together, result in a permanent impairment or disability
17 rating which is greater than the sum of the two permanent
18 impairment or disability ratings when each impairment or
19 disability is considered individually.
20 (6) OBLIGATION TO REHIRE.--If the employer has not in
21 good faith made available to the employee, within a 100-mile
22 radius of the employee's residence, work appropriate to the
23 employee's physical limitations within 30 days after the
24 carrier notifies the employer of maximum medical improvement
25 and the employee's physical limitations, the employer shall
26 pay to the department for deposit into the Workers'
27 Compensation Administration Trust Fund a fine of $250 for
28 every $5,000 of the employer's workers' compensation premium
29 or payroll, not to exceed $2,000 per violation, as the
30 department requires by rule. The employer is not subject to
31 this subsection if the employee is receiving permanent total
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1 disability benefits or if the employer has 50 or fewer
2 employees.
3 (6)(7) EMPLOYEE REFUSES EMPLOYMENT.--If an injured
4 employee refuses employment suitable to the capacity thereof,
5 offered to or procured therefor, such employee shall not be
6 entitled to any compensation at any time during the
7 continuance of such refusal unless at any time in the opinion
8 of the judge of compensation claims such refusal is
9 justifiable. Time periods for the payment of benefits in
10 accordance with this section shall be counted in determining
11 the limitation of benefits as provided for in paragraphs
12 (2)(a), (3)(c), and (4)(b).
13 (7)(8) EMPLOYEE LEAVES EMPLOYMENT.--If an injured
14 employee, when receiving compensation for temporary partial
15 disability, leaves the employment of the employer by whom she
16 or he was employed at the time of the accident for which such
17 compensation is being paid, the employee shall, upon securing
18 employment elsewhere, give to such former employer an
19 affidavit in writing containing the name of her or his new
20 employer, the place of employment, and the amount of wages
21 being received at such new employment; and, until she or he
22 gives such affidavit, the compensation for temporary partial
23 disability will cease. The employer by whom such employee was
24 employed at the time of the accident for which such
25 compensation is being paid may also at any time demand of such
26 employee an additional affidavit in writing containing the
27 name of her or his employer, the place of her or his
28 employment, and the amount of wages she or he is receiving;
29 and if the employee, upon such demand, fails or refuses to
30 make and furnish such affidavit, her or his right to
31 compensation for temporary partial disability shall cease
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1 until such affidavit is made and furnished. If the employee
2 leaves her or his employment while receiving temporary partial
3 benefits without just cause as determined by the judge of
4 compensation claims, temporary partial benefits shall be
5 payable based on the deemed earnings of the employee as if she
6 or he had remained employed.
7 (8)(9) EMPLOYEE BECOMES INMATE OF INSTITUTION.--In
8 case an employee becomes an inmate of a public institution,
9 then no compensation shall be payable unless she or he has
10 dependent upon her or him for support a person or persons
11 defined as dependents elsewhere in this chapter, whose
12 dependency shall be determined as if the employee were
13 deceased and to whom compensation would be paid in case of
14 death; and such compensation as is due such employee shall be
15 paid such dependents during the time she or he remains such
16 inmate.
17 (9)(10) EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS
18 CHAPTER AND FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY
19 INSURANCE ACT.--
20 (a) Weekly compensation benefits payable under this
21 chapter for disability resulting from injuries to an employee
22 who becomes eligible for benefits under 42 U.S.C. s. 423 shall
23 be reduced to an amount whereby the sum of such compensation
24 benefits payable under this chapter and such total benefits
25 otherwise payable for such period to the employee and her or
26 his dependents, had such employee not been entitled to
27 benefits under this chapter, under 42 U.S.C. ss. 402 and 423,
28 does not exceed 80 percent of the employee's average weekly
29 wage. However, this provision shall not operate to reduce an
30 injured worker's benefits under this chapter to a greater
31 extent than such benefits would have otherwise been reduced
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1 under 42 U.S.C. s. 424(a). This reduction of compensation
2 benefits is not applicable to any compensation benefits
3 payable for any week subsequent to the week in which the
4 injured worker reaches the age of 62 years.
5 (b) If the provisions of 42 U.S.C. s. 424(a) are
6 amended to provide for a reduction or increase of the
7 percentage of average current earnings that the sum of
8 compensation benefits payable under this chapter and the
9 benefits payable under 42 U.S.C. ss. 402 and 423 can equal,
10 the amount of the reduction of benefits provided in this
11 subsection shall be reduced or increased accordingly. The
12 department may by rule specify forms and procedures governing
13 the method for calculating and administering the offset of
14 benefits payable under this chapter and benefits payable under
15 42 U.S.C. ss. 402 and 423. The department shall have first
16 priority in taking any available social security offsets on
17 dates of accidents occurring before July 1, 1984.
18 (c) No disability compensation benefits payable for
19 any week, including those benefits provided by paragraph
20 (1)(f), shall be reduced pursuant to this subsection until the
21 Social Security Administration determines the amount otherwise
22 payable to the employee under 42 U.S.C. ss. 402 and 423 and
23 the employee has begun receiving such social security benefit
24 payments. The employee shall, upon demand by the department,
25 the employer, or the carrier, authorize the Social Security
26 Administration to release disability information relating to
27 her or him and authorize the Division of Unemployment
28 Compensation to release unemployment compensation information
29 relating to her or him, in accordance with rules to be adopted
30 by the department prescribing the procedure and manner for
31 requesting the authorization and for compliance by the
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1 employee. Neither the department nor the employer or carrier
2 shall make any payment of benefits for total disability or
3 those additional benefits provided by paragraph (1)(f) for any
4 period during which the employee willfully fails or refuses to
5 authorize the release of information in the manner and within
6 the time prescribed by such rules. The authority for release
7 of disability information granted by an employee under this
8 paragraph shall be effective for a period not to exceed 12
9 months, such authority to be renewable as the department may
10 prescribe by rule.
11 (d) If compensation benefits are reduced pursuant to
12 this subsection, the minimum compensation provisions of s.
13 440.12(2) do not apply.
14 (10)(11) EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS
15 CHAPTER WHO HAS RECEIVED OR IS ENTITLED TO RECEIVE
16 UNEMPLOYMENT COMPENSATION.--
17 (a) No compensation benefits shall be payable for
18 temporary total disability or permanent total disability under
19 this chapter for any week in which the injured employee has
20 received, or is receiving, unemployment compensation benefits.
21 (b) If an employee is entitled to temporary partial
22 benefits pursuant to subsection (4) and unemployment
23 compensation benefits, such unemployment compensation benefits
24 shall be primary and the temporary partial benefits shall be
25 supplemental only, the sum of the two benefits not to exceed
26 the amount of temporary partial benefits which would otherwise
27 be payable.
28 (11)(12) FULL-PAY STATUS FOR CERTAIN LAW ENFORCEMENT
29 OFFICERS.--Any law enforcement officer as defined in s.
30 943.10(1), (2), or (3) who, while acting within the course of
31 employment as provided by s. 440.091, is maliciously or
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1 intentionally injured and who thereby sustains a job-connected
2 disability compensable under this chapter shall be carried in
3 full-pay status rather than being required to use sick,
4 annual, or other leave. Full-pay status shall be granted only
5 after submission to the employing agency's head of a medical
6 report which gives a current diagnosis of the employee's
7 recovery and ability to return to work. In no case shall the
8 employee's salary and workers' compensation benefits exceed
9 the amount of the employee's regular salary requirements.
10 (12)(13) REPAYMENT.--If an employee has received a sum
11 as an indemnity benefit under any classification or category
12 of benefit under this chapter to which she or he is not
13 entitled, the employee is liable to repay that sum to the
14 employer or the carrier or to have that sum deducted from
15 future benefits, regardless of the classification of benefits,
16 payable to the employee under this chapter; however, a partial
17 payment of the total repayment may not exceed 20 percent of
18 the amount of the biweekly payment.
19 Section 19. Subsections (1), (2), and (3) of section
20 440.151, Florida Statutes, are amended to read:
21 440.151 Occupational diseases.--
22 (1)(a) Where the employer and employee are subject to
23 the provisions of the Workers' Compensation Law, the
24 disablement or death of an employee resulting from an
25 occupational disease as hereinafter defined shall be treated
26 as the happening of an injury by accident, notwithstanding any
27 other provisions of this chapter, and the employee or, in case
28 of death, the employee's dependents shall be entitled to
29 compensation as provided by this chapter, except as
30 hereinafter otherwise provided; and the practice and procedure
31 prescribed by this chapter shall apply to all proceedings
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1 under this section, except as hereinafter otherwise provided.
2 Provided, however, that in no case shall an employer be liable
3 for compensation under the provisions of this section unless
4 such disease has resulted from the nature of the employment in
5 which the employee was engaged under such employer, and was
6 actually contracted while so engaged, and the nature of the
7 employment was the major contributing cause of the disease.
8 Major contributing cause must be shown by medical evidence
9 only, as demonstrated by physical examination findings and
10 diagnostic testing. meaning by "Nature of the employment"
11 means that in to the occupation in which the employee was so
12 engaged there is attached a particular hazard of such disease
13 that distinguishes it from the usual run of occupations, or
14 the incidence of such disease is substantially higher in the
15 occupation in which the employee was so engaged than in the
16 usual run of occupations. In claims for death under s. 440.16,
17 death must occur or, in case of death, unless death follows
18 continuous disability from such disease, commencing within the
19 period above limited, for which compensation has been paid or
20 awarded, or timely claim made as provided in this section, and
21 results within 350 weeks after such last exposure. Both
22 causation and sufficient exposure to a specific harmful
23 substance shown to be present in the workplace to support
24 causation shall be proven by clear and convincing evidence.
25 (b) No compensation shall be payable for an
26 occupational disease if the employee, at the time of entering
27 into the employment of the employer by whom the compensation
28 would otherwise be payable, falsely represents herself or
29 himself in writing as not having previously been disabled,
30 laid off or compensated in damages or otherwise, because of
31 such disease.
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1 (c) Where an occupational disease is aggravated by any
2 other disease or infirmity, not itself compensable, or where
3 disability or death from any other cause, not itself
4 compensable, is aggravated, prolonged, accelerated or in
5 anywise contributed to by an occupational disease, the
6 compensation shall be payable only if the occupational disease
7 is the major contributing cause of the injury. Any
8 compensation shall be reduced and limited to such proportion
9 only of the compensation that would be payable if the
10 occupational disease were the sole cause of the disability or
11 death as such occupational disease, as a causative factor,
12 bears to all the causes of such disability or death, such
13 reduction in compensation to be effected by reducing the
14 number of weekly or monthly payments or the amounts of such
15 payments, as under the circumstances of the particular case
16 may be for the best interest of the claimant or claimants.
17 Major contributing cause must be demonstrated by medical
18 evidence based on physical examination findings and diagnostic
19 testing.
20 (d) No compensation for death from an occupational
21 disease shall be payable to any person whose relationship to
22 the deceased, which under the provisions of this Workers'
23 Compensation Law would give right to compensation, arose
24 subsequent to the beginning of the first compensable
25 disability, save only to afterborn children of a marriage
26 existing at the beginning of such disability.
27 (e) No compensation shall be payable for disability or
28 death resulting from tuberculosis arising out of and in the
29 course of employment by the Department of Health at a state
30 tuberculosis hospital, or aggravated by such employment, when
31
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1 the employee had suffered from said disease at any time prior
2 to the commencement of such employment.
3 (2) Whenever used in this section the term
4 "occupational disease" shall be construed to mean only a
5 disease which is due to causes and conditions which are
6 characteristic of and peculiar to a particular trade,
7 occupation, process, or employment, and to exclude all
8 ordinary diseases of life to which the general public is
9 exposed, unless the incidence of the disease is substantially
10 higher in the particular trade, occupation, process, or
11 employment than for the general public. "Occupational disease"
12 means only a disease for which there are epidemiological
13 studies showing that exposure to the specific substance
14 involved, at the levels to which the employee was exposed, may
15 cause the precise disease sustained by the employee.
16 (3) Except as hereinafter otherwise provided in this
17 section, "disablement" means disability as described in s.
18 440.02(13) the event of an employee's becoming actually
19 incapacitated, partially or totally, because of an
20 occupational disease, from performing her or his work in the
21 last occupation in which injuriously exposed to the hazards of
22 such disease; and "disability" means the state of being so
23 incapacitated.
24 Section 20. Subsections (1) and (7) of section 440.16,
25 Florida Statutes, are amended to read:
26 440.16 Compensation for death.--
27 (1) If death results from the accident within 1 year
28 thereafter or follows continuous disability and results from
29 the accident within 5 years thereafter, the employer shall
30 pay:
31
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1 (a) Within 14 days after receiving the bill, actual
2 funeral expenses not to exceed $7,500 $5,000.
3 (b) Compensation, in addition to the above, in the
4 following percentages of the average weekly wages to the
5 following persons entitled thereto on account of dependency
6 upon the deceased, and in the following order of preference,
7 subject to the limitation provided in subparagraph 2., but
8 such compensation shall be subject to the limits provided in
9 s. 440.12(2), shall not exceed $150,000 $100,000, and may be
10 less than, but shall not exceed, for all dependents or persons
11 entitled to compensation, 66 2/3 percent of the average wage:
12 1. To the spouse, if there is no child, 50 percent of
13 the average weekly wage, such compensation to cease upon the
14 spouse's death.
15 2. To the spouse, if there is a child or children, the
16 compensation payable under subparagraph 1. and, in addition,
17 16 2/3 percent on account of the child or children. However,
18 when the deceased is survived by a spouse and also a child or
19 children, whether such child or children are the product of
20 the union existing at the time of death or of a former
21 marriage or marriages, the judge of compensation claims may
22 provide for the payment of compensation in such manner as may
23 appear to the judge of compensation claims just and proper and
24 for the best interests of the respective parties and, in so
25 doing, may provide for the entire compensation to be paid
26 exclusively to the child or children; and, in the case of
27 death of such spouse, 33 1/3 percent for each child. However,
28 upon the surviving spouse's remarriage, the spouse shall be
29 entitled to a lump-sum payment equal to 26 weeks of
30 compensation at the rate of 50 percent of the average weekly
31 wage as provided in s. 440.12(2), unless the $150,000 $100,000
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1 limit provided in this paragraph is exceeded, in which case
2 the surviving spouse shall receive a lump-sum payment equal to
3 the remaining available benefits in lieu of any further
4 indemnity benefits. In no case shall a surviving spouse's
5 acceptance of a lump-sum payment affect payment of death
6 benefits to other dependents.
7 3. To the child or children, if there is no spouse, 33
8 1/3 percent for each child.
9 4. To the parents, 25 percent to each, such
10 compensation to be paid during the continuance of dependency.
11 5. To the brothers, sisters, and grandchildren, 15
12 percent for each brother, sister, or grandchild.
13 (c) To the surviving spouse, payment of postsecondary
14 student fees for instruction at any area technical center
15 established under s. 1001.44 for up to 1,800 classroom hours
16 or payment of student fees at any community college
17 established under part III of chapter 1004 for up to 80
18 semester hours. The spouse of a deceased state employee shall
19 be entitled to a full waiver of such fees as provided in ss.
20 1009.22 and 1009.23 in lieu of the payment of such fees. The
21 benefits provided for in this paragraph shall be in addition
22 to other benefits provided for in this section and shall
23 terminate 7 years after the death of the deceased employee, or
24 when the total payment in eligible compensation under
25 paragraph (b) has been received. To qualify for the
26 educational benefit under this paragraph, the spouse shall be
27 required to meet and maintain the regular admission
28 requirements of, and be registered at, such area technical
29 center or community college, and make satisfactory academic
30 progress as defined by the educational institution in which
31 the student is enrolled.
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1 (7) Compensation under this chapter to aliens not
2 residents (or about to become nonresidents) of the United
3 States or Canada shall be the same in amount as provided for
4 residents, except that dependents in any foreign country shall
5 be limited to surviving spouse and child or children, or if
6 there be no surviving spouse or child or children, to
7 surviving father or mother whom the employee has supported,
8 either wholly or in part, for the period of 1 year prior to
9 the date of the injury, and except that the judge of
10 compensation claims may, at the option of the judge of
11 compensation claims, or upon the application of the insurance
12 carrier, commute all future installments of compensation to be
13 paid to such aliens by paying or causing to be paid to them
14 one-half of the commuted amount of such future installments of
15 compensation as determined by the judge of compensation
16 claims, and provided further that compensation to dependents
17 referred to in this subsection shall in no case exceed $75,000
18 $50,000.
19 Section 21. Subsection (9) of section 440.185, Florida
20 Statutes, is amended, and subsection (12) is added to said
21 section, to read:
22 440.185 Notice of injury or death; reports; penalties
23 for violations.--
24 (9) Any employer or carrier who fails or refuses to
25 timely send any form, report, or notice required by this
26 section shall be subject to an administrative fine by the
27 department a civil penalty not to exceed $1,000 $500 for each
28 such failure or refusal. If, within 1 calendar year, an
29 employer fails to timely submit to the carrier more than 10
30 percent of its notices of injury or death, the employer shall
31 be subject to an administrative fine by the department not to
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1 exceed $2,000 for each such failure or refusal. However, any
2 employer who fails to notify the carrier of the injury on the
3 prescribed form or by letter within the 7 days required in
4 subsection (2) shall be liable for the administrative fine
5 civil penalty, which shall be paid by the employer and not the
6 carrier. Failure by the employer to meet its obligations under
7 subsection (2) shall not relieve the carrier from liability
8 for the administrative fine civil penalty if it fails to
9 comply with subsections (4) and (5).
10 (12) Upon receiving notice of an injury from an
11 employee under subsection (1), the employer or carrier shall
12 provide the employee with a written notice, in the form and
13 manner determined by the department by rule, of the
14 availability of services from the Employee Assistance and
15 Ombudsman Office. The substance of the notice to the employee
16 shall include:
17 (a) A description of the scope of services provided by
18 the office.
19 (b) A listing of the toll-free telephone number of,
20 the email address, and the postal address of the office.
21 (c) A statement that the informational brochure
22 referred to in subsection (4) will be mailed to the employee
23 within 3 days after the carrier receives notice of the injury.
24 (d) Any other information regarding access to
25 assistance that the department finds is immediately necessary
26 for an injured employee.
27 Section 22. Subsections (1) and (2) of section
28 440.192, Florida Statutes, are amended, and subsection (9) is
29 added to said section, to read:
30 440.192 Procedure for resolving benefit disputes.--
31
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1 (1) Subject to s. 440.191, Any employee may, for any
2 benefit that is ripe, due, and owing, who has not received a
3 benefit to which the employee believes she or he is entitled
4 under this chapter shall file by certified mail, or by
5 electronic means approved by the Deputy Chief Judge, with the
6 Office of the Judges of Compensation Claims a petition for
7 benefits which meets the requirements of this section and the
8 definition of specificity in s. 440.02. The department shall
9 inform employees of the location of the Office of the Judges
10 of Compensation Claims for purposes of filing a petition for
11 benefits. The employee shall also serve copies of the petition
12 for benefits by certified mail, or by electronic means
13 approved by the Deputy Chief Judge, upon the employer and the
14 employer's carrier. The Deputy Chief Judge shall refer the
15 petitions to the judges of compensation claims.
16 (2) Upon receipt, the Office of the Judges of
17 Compensation Claims shall review each petition and shall
18 dismiss each petition or any portion of such a petition, upon
19 the judge's own motion or upon the motion of any party, that
20 does not on its face specifically identify or itemize the
21 following:
22 (a) Name, address, telephone number, and social
23 security number of the employee.
24 (b) Name, address, and telephone number of the
25 employer.
26 (c) A detailed description of the injury and cause of
27 the injury, including the location of the occurrence and the
28 date or dates of the accident.
29 (d) A detailed description of the employee's job, work
30 responsibilities, and work the employee was performing when
31 the injury occurred.
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1 (e) The time period for which compensation and the
2 specific classification of compensation were not timely
3 provided.
4 (f) Date of maximum medical improvement, character of
5 disability, and specific statement of all benefits or
6 compensation that the employee is seeking.
7 (g) All specific travel costs to which the employee
8 believes she or he is entitled, including dates of travel and
9 purpose of travel, means of transportation, and mileage and
10 including the date the request for mileage was filed with the
11 carrier and a copy of the request filed with the carrier.
12 (h) Specific listing of all medical charges alleged
13 unpaid, including the name and address of the medical
14 provider, the amounts due, and the specific dates of
15 treatment.
16 (i) The type or nature of treatment care or attendance
17 sought and the justification for such treatment. If the
18 employee is under the care of a physician for an injury
19 identified under paragraph (c), a copy of the physician's
20 request, authorization, or recommendation for treatment, care,
21 or attendance must accompany the petition.
22 (j) Specific explanation of any other disputed issue
23 that a judge of compensation claims will be called to rule
24 upon.
25
26 The dismissal of any petition or portion of such a petition
27 under this section is without prejudice and does not require a
28 hearing.
29 (9) A petition for benefits must contain claims for
30 all benefits that are ripe, due, and owing on the date the
31 petition is filed. Unless stipulated in writing by the
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1 parties, only claims which have been properly raised in a
2 petition for benefits and have undergone mediation may be
3 considered for adjudication by a judge of compensation claims.
4 Section 23. Section 440.1926, Florida Statutes, is
5 created to read:
6 440.1926 Alternate dispute resolution; claim
7 arbitration.--Notwithstanding any other provision of this
8 chapter, the employer, carrier, and employee may mutually
9 agree to seek consent from a judge of compensation claims to
10 enter into binding claim arbitration in lieu of any other
11 remedy provided for in this chapter to resolve all issues in
12 dispute regarding an injury. Arbitrations agreed to pursuant
13 to this section shall be governed by chapter 682, the Florida
14 Arbitration Code, except that, notwithstanding any provision
15 in chapter 682, the term "court" shall mean a judge of
16 compensation claims. An arbitration award in accordance with
17 this section shall be enforceable in the same manner and with
18 the same powers as any final compensation order.
19 Section 24. Subsections (2), (3), (4), (6), and (8)
20 and paragraph (d) of subsection (11) of section 440.20,
21 Florida Statutes, are amended to read:
22 440.20 Time for payment of compensation and medical
23 bills; penalties for late payment.--
24 (2)(a) The carrier must pay the first installment of
25 compensation for total disability or death benefits or deny
26 compensability no later than the 14th calendar day after the
27 employer receives notification notice of the injury or death,
28 when disability is immediate and continuous for 8 calendar
29 days or more after the injury. If the first 7 days after
30 disability are nonconsecutive or delayed, the first
31 installment of compensation is due on the 6th day after the
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1 first 8 calendar days of disability. The carrier shall
2 thereafter pay compensation in biweekly installments or as
3 otherwise provided in s. 440.15, unless the judge of
4 compensation claims determines or the parties agree that an
5 alternate installment schedule is in the best interests of the
6 employee.
7 (b) The carrier must pay, disallow, or deny all
8 medical, dental, pharmacy, and hospital bills submitted to the
9 carrier in accordance with department rule no later than 45
10 calendar days after the carrier's receipt of the bill.
11 (3) Upon making initial payment of indemnity benefits,
12 or upon suspension or cessation of payment for any reason, the
13 carrier shall immediately notify the injured employee, the
14 employer, and the department that it has commenced, suspended,
15 or ceased payment of compensation. The department may require
16 such notification to the injured employee, employer, and the
17 department in a any format and manner it deems necessary to
18 obtain accurate and timely notification reporting.
19 (4) If the carrier is uncertain of its obligation to
20 provide all benefits or compensation, it may initiate payment
21 without prejudice and without admitting liability. the carrier
22 shall immediately and in good faith commence investigation of
23 the employee's entitlement to benefits under this chapter and
24 shall admit or deny compensability within 120 days after the
25 initial provision of compensation or benefits as required
26 under subsection (2) or s. 440.192(8). Additionally, the
27 carrier shall initiate payment and continue the provision of
28 all benefits and compensation as if the claim had been
29 accepted as compensable, without prejudice and without
30 admitting liability. Upon commencement of payment as required
31 under subsection (2) or s. 440.192 (8), the carrier shall
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1 provide written notice to the employee that it has elected to
2 pay all or part of the claim pending further investigation,
3 and that it will advise the employee of claim acceptance or
4 denial within 120 days. A carrier that fails to deny
5 compensability within 120 days after the initial provision of
6 benefits or payment of compensation as required under
7 subsection (2) or s. 440.192(8) waives the right to deny
8 compensability, unless the carrier can establish material
9 facts relevant to the issue of compensability that it could
10 not have discovered through reasonable investigation within
11 the 120-day period. The initial provision of compensation or
12 benefits, for purposes of this subsection, means the first
13 installment of compensation or benefits to be paid by the
14 carrier under subsection (2) or pursuant to a petition for
15 benefits under s. 440.192(8).
16 (6)(a) If any installment of compensation for death or
17 dependency benefits, or compensation for disability benefits,
18 permanent impairment, or wage loss payable without an award is
19 not paid within 7 days after it becomes due, as provided in
20 subsection (2), subsection (3), or subsection (4), there shall
21 be added to such unpaid installment a punitive penalty of an
22 amount equal to 20 percent of the unpaid installment or $5,
23 which shall be paid at the same time as, but in addition to,
24 such installment of compensation. This penalty shall not apply
25 for late payments resulting, unless notice is filed under
26 subsection (4) or unless such nonpayment results from
27 conditions over which the employer or carrier had no control.
28 When any installment of compensation payable without an award
29 has not been paid within 7 days after it became due and the
30 claimant concludes the prosecution of the claim before a judge
31 of compensation claims without having specifically claimed
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1 additional compensation in the nature of a penalty under this
2 section, the claimant will be deemed to have acknowledged
3 that, owing to conditions over which the employer or carrier
4 had no control, such installment could not be paid within the
5 period prescribed for payment and to have waived the right to
6 claim such penalty. However, during the course of a hearing,
7 the judge of compensation claims shall on her or his own
8 motion raise the question of whether such penalty should be
9 awarded or excused. The department may assess without a
10 hearing the punitive penalty against either the employer or
11 the insurance carrier, depending upon who was at fault in
12 causing the delay. The insurance policy cannot provide that
13 this sum will be paid by the carrier if the department or the
14 judge of compensation claims determines that the punitive
15 penalty should be paid made by the employer rather than the
16 carrier. Any additional installment of compensation paid by
17 the carrier pursuant to this section shall be paid directly to
18 the employee by check or, if authorized by the employee, by
19 direct deposit into the employee's account at a financial
20 institution. As used in this subsection, the term "financial
21 institution" means a financial institution as defined in s.
22 655.005(1)(h).
23 (b) For medical services provided on or after January
24 1, 2004, the department shall require that all medical,
25 hospital, pharmacy, or dental bills properly submitted by the
26 provider, except for bills that are disallowed or denied by
27 the carrier or its authorized vendor in accordance with
28 department rule, are timely paid within 45 calendar days after
29 the carrier's receipt of the bill. The department shall impose
30 penalties for late payments or disallowances or denials of
31 medical, hospital, pharmacy, or dental bills that are below a
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1 minimum 95 percent timely performance standard. The carrier
2 shall pay to the Workers' Compensation Administration Trust
3 Fund a penalty of:
4 1. Twenty-five dollars for each bill below the 95
5 percent timely performance standard, but meeting a 90 percent
6 timely standard.
7 2. Fifty dollars for each bill below a 90 percent
8 timely performance standard.
9 (8)(a) In addition to any other penalties provided by
10 this chapter for late payment, if any installment of
11 compensation is not paid when it becomes due, the employer,
12 carrier, or servicing agent shall pay interest thereon at the
13 rate of 12 percent per year from the date the installment
14 becomes due until it is paid, whether such installment is
15 payable without an order or under the terms of an order. The
16 interest payment shall be the greater of the amount of
17 interest due or $5.
18 (a) Within 30 days after final payment of compensation
19 has been made, the employer, carrier, or servicing agent shall
20 send to the department a notice, in accordance with a format
21 and manner prescribed by the department, stating that such
22 final payment has been made and stating the total amount of
23 compensation paid, the name of the employee and of any other
24 person to whom compensation has been paid, the date of the
25 injury or death, and the date to which compensation has been
26 paid.
27 (b) If the employer, carrier, or servicing agent fails
28 to so notify the department within such time, the department
29 shall assess against such employer, carrier, or servicing
30 agent a civil penalty in an amount not over $100.
31
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1 (b)(c) In order to ensure carrier compliance under
2 this chapter and provisions of the Florida Insurance Code, the
3 office department shall monitor, audit, and investigate the
4 performance of carriers by conducting market conduct
5 examinations, as provided in s. 624.3161, and conducting
6 investigations, as provided in s. 624.317. The office
7 department shall require establish by rule minimum performance
8 standards for carriers to ensure that a minimum of 90 percent
9 of all compensation benefits are timely paid in accordance
10 with this section. The office department shall impose
11 penalties fine a carrier as provided in s. 440.13(11)(b) up to
12 $50 for each late payments payment of compensation that are is
13 below a the minimum 95 90 percent timely payment performance
14 standard. The carrier shall pay to the Workers' Compensation
15 Administration Trust Fund a penalty of:
16 1. Fifty dollars per number of installments of
17 compensation below the 95 percent timely payment performance
18 standard and equal to or greater than a 90 percent timely
19 payment performance standard.
20 2. One hundred dollars per number of installments of
21 compensation below a 90 percent timely payment performance
22 standard.
23
24 This section does not affect the imposition of any penalties
25 or interest due to the claimant. If a carrier contracts with a
26 servicing agent to fulfill its administrative responsibilities
27 under this chapter, the payment practices of the servicing
28 agent are deemed the payment practices of the carrier for the
29 purpose of assessing penalties against the carrier.
30 (11)
31
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1 (d)1. With respect to any lump-sum settlement under
2 this subsection, a judge of compensation claims must consider
3 at the time of the settlement, whether the settlement
4 allocation provides for the appropriate recovery of child
5 support arrearages. An employer or carrier does not have a
6 duty to investigate or collect information regarding child
7 support arrearages.
8 2. When reviewing any settlement of lump-sum payment
9 pursuant to this subsection, judges of compensation claims
10 shall consider the interests of the worker and the worker's
11 family when approving the settlement, which must consider and
12 provide for appropriate recovery of past due support.
13 3. With respect to any lump-sum settlement under this
14 subsection, any correspondence to a clerk of the circuit court
15 of this state regarding child support documentation shall be
16 exempt from any fees or costs ordinarily assessed by the
17 clerk's office.
18 Section 25. Section 440.25, Florida Statutes, is
19 amended to read:
20 440.25 Procedures for mediation and hearings.--
21 (1) Forty days Within 90 days after a petition for
22 benefits is filed under s. 440.192, a mediation conference
23 concerning such petition shall be held. Within 40 days after
24 such petition is filed, the judge of compensation claims shall
25 notify the interested parties by order that a mediation
26 conference concerning such petition has been scheduled will be
27 held unless the parties have notified the judge Office of the
28 Judges of compensation claims that a private mediation has
29 been held or is scheduled to be held. A mediation, whether
30 private or public, shall be held within 130 days after the
31 filing of the petition. Such order must give the date by which
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1 the mediation conference is to must be held. Such order may be
2 served personally upon the interested parties or may be sent
3 to the interested parties by mail. If multiple petitions are
4 pending, or if additional petitions are filed after the
5 scheduling of a mediation, the judge of compensation claims
6 shall consolidate all petitions into one mediation. The
7 claimant or the adjuster of the employer or carrier may, at
8 the mediator's discretion, attend the mediation conference by
9 telephone or, if agreed to by the parties, other electronic
10 means. A continuance may be granted upon the agreement of the
11 parties or if the requesting party demonstrates to the judge
12 of 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 for the purpose of mediating
17 attorney's fees.
18 (2) Any party who participates in a mediation
19 conference shall not be precluded from requesting a hearing
20 following the mediation conference should both parties not
21 agree to be bound by the results of the mediation conference.
22 A mediation conference is required to be held unless this
23 requirement is waived by the Deputy Chief Judge. No later than
24 3 days prior to the mediation conference, all parties must
25 submit any applicable motions, including, but not limited to,
26 a motion to waive the mediation conference, to the judge of
27 compensation claims.
28 (3)(a) Such mediation conference shall be conducted
29 informally and does not require the use of formal rules of
30 evidence or procedure. Any information from the files,
31 reports, case summaries, mediator's notes, or other
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1 communications or materials, oral or written, relating to a
2 mediation conference under this section obtained by any person
3 performing mediation duties is privileged and confidential and
4 may not be disclosed without the written consent of all
5 parties to the conference. Any research or evaluation effort
6 directed at assessing the mediation program activities or
7 performance must protect the confidentiality of such
8 information. Each party to a mediation conference has a
9 privilege during and after the conference to refuse to
10 disclose and to prevent another from disclosing communications
11 made during the conference whether or not the contested issues
12 are successfully resolved. This subsection and paragraphs
13 (4)(a) and (b) shall not be construed to prevent or inhibit
14 the discovery or admissibility of any information that is
15 otherwise subject to discovery or that is admissible under
16 applicable law or rule of procedure, except that any conduct
17 or statements made during a mediation conference or in
18 negotiations concerning the conference are inadmissible in any
19 proceeding under this chapter.
20 (a)1. Unless the parties conduct a private mediation
21 under paragraph (b) subparagraph 2., mediation shall be
22 conducted by a mediator selected by the Director of the
23 Division of Administrative Hearings from among mediators
24 employed on a full-time basis by the Office of the Judges of
25 Compensation Claims. A mediator must be a member of The
26 Florida Bar for at least 5 years and must complete a mediation
27 training program approved by the Deputy Chief Judge Director
28 of the Division of Administrative Hearings. Adjunct mediators
29 may be employed by the Office of the Judges of Compensation
30 Claims on an as-needed basis and shall be selected from a list
31 prepared by the Director of the Division of Administrative
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1 Hearings. An adjunct mediator must be independent of all
2 parties participating in the mediation conference. An adjunct
3 mediator must be a member of The Florida Bar for at least 5
4 years and must complete a mediation training program approved
5 by the Office of the Judges of Compensation Claims Director of
6 the Division of Administrative Hearings. An adjunct mediator
7 shall have access to the office, equipment, and supplies of
8 the judge of compensation claims in each district.
9 (b)2. With respect to any private mediation occurring
10 on or after January 1, 2003, if the parties agree or if
11 mediators are not available under paragraph (a), pursuant to
12 notice from the judge of compensation claims, subparagraph 1.
13 to conduct the required mediation within the period specified
14 in this section, the parties shall hold a mediation conference
15 at the carrier's expense within the 130-day 90-day period set
16 for mediation. The mediation conference shall be conducted by
17 a mediator certified under s. 44.106. If the parties do not
18 agree upon a mediator within 10 days after the date of the
19 order, the claimant shall notify the judge in writing and the
20 judge shall appoint a mediator under this subparagraph within
21 7 days. In the event both parties agree, the results of the
22 mediation conference shall be binding and neither party shall
23 have a right to appeal the results. In the event either party
24 refuses to agree to the results of the mediation conference,
25 the results of the mediation conference as well as the
26 testimony, witnesses, and evidence presented at the conference
27 shall not be admissible at any subsequent proceeding on the
28 claim. The mediator shall not be called in to testify or give
29 deposition to resolve any claim for any hearing before the
30 judge of compensation claims. The employer may be represented
31
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1 by an attorney at the mediation conference if the employee is
2 also represented by an attorney at the mediation conference.
3 (b) The parties shall complete the pretrial
4 stipulations before the conclusion of the mediation conference
5 if the claims, except for attorney's fees and costs, have not
6 been settled and if any claims in any filed petition remain
7 unresolved. The judge of compensation claims may impose
8 sanctions against a party or both parties for failing to
9 complete the pretrial stipulations before the conclusion of
10 the mediation conference.
11 (4)(a) If the parties fail to agree to upon written
12 submission of pretrial stipulations at the mediation
13 conference, the judge of compensation claims shall conduct a
14 live order a pretrial hearing to occur within 14 days after
15 the date of mediation ordered by the judge of compensation
16 claims. The judge of compensation claims shall give the
17 interested parties at least 14 7 days' advance notice of the
18 pretrial hearing by mail. At the pretrial hearing, the judge
19 of compensation claims shall, subject to paragraph (b), set a
20 date for the final hearing that allows the parties at least 60
21 days to conduct discovery unless the parties consent to an
22 earlier hearing date.
23 (b) The final hearing must be held and concluded
24 within 90 days after the mediation conference is held,
25 allowing the parties sufficient time to complete discovery.
26 Except as set forth in this section, continuances may be
27 granted only if the requesting party demonstrates to the judge
28 of compensation claims that the reason for requesting the
29 continuance arises from circumstances beyond the party's
30 control. The written consent of the claimant must be obtained
31 before any request from a claimant's attorney is granted for
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1 an additional continuance after the initial continuance has
2 been granted. Any order granting a continuance must set forth
3 the date and time of the rescheduled hearing. A continuance
4 may be granted only if the requesting party demonstrates to
5 the judge of compensation claims that the reason for
6 requesting the continuance arises from circumstances beyond
7 the control of the parties. The judge of compensation claims
8 shall report any grant of two or more continuances to the
9 Deputy Chief Judge.
10 (c) The judge of compensation claims shall give the
11 interested parties at least 14 7 days' advance notice of the
12 final hearing, served upon the interested parties by mail.
13 (d) The final hearing shall be held within 210 days
14 after receipt of the petition for benefits in the county where
15 the injury occurred, if the injury occurred in this state,
16 unless otherwise agreed to between the parties and authorized
17 by the judge of compensation claims in the county where the
18 injury occurred. However, the claimant may waive the
19 timeframes within this section for good cause shown. If the
20 injury occurred outside the state and is one for which
21 compensation is payable under this chapter, then the final
22 hearing may be held in the county of the employer's residence
23 or place of business, or in any other county of the state that
24 will, in the discretion of the Deputy Chief Judge, be the most
25 convenient for a hearing. The final hearing shall be conducted
26 by a judge of compensation claims, who shall, within 30 days
27 after final hearing or closure of the hearing record, unless
28 otherwise agreed by the parties, enter a final order on the
29 merits of the disputed issues. The judge of compensation
30 claims may enter an abbreviated final order in cases in which
31 compensability is not disputed. Either party may request
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1 separate findings of fact and conclusions of law. At the final
2 hearing, the claimant and employer may each present evidence
3 with respect to the claims presented by the petition for
4 benefits and may be represented by any attorney authorized in
5 writing for such purpose. When there is a conflict in the
6 medical evidence submitted at the hearing, the provisions of
7 s. 440.13 shall apply. The report or testimony of the expert
8 medical advisor shall be admitted into evidence in a made a
9 part of the record of the proceeding and shall be given the
10 same consideration by the judge of compensation claims as is
11 accorded other medical evidence submitted in the proceeding;
12 and all costs incurred in connection with such examination and
13 testimony may be assessed as costs in the proceeding, subject
14 to the provisions of s. 440.13. No judge of compensation
15 claims may make a finding of a degree of permanent impairment
16 that is greater than the greatest permanent impairment rating
17 given the claimant by any examining or treating physician,
18 except upon stipulation of the parties. Any benefit due but
19 not raised at the final hearing which was ripe, due, or owing
20 at the time of the final hearing is waived.
21 (e) The order making an award or rejecting the claim,
22 referred to in this chapter as a "compensation order," shall
23 set forth the findings of ultimate facts and the mandate; and
24 the order need not include any other reason or justification
25 for such mandate. The compensation order shall be filed in the
26 Office of the Judges of Compensation Claims at Tallahassee. A
27 copy of such compensation order shall be sent by mail to the
28 parties and attorneys of record at the last known address of
29 each, with the date of mailing noted thereon.
30 (f) Each judge of compensation claims is required to
31 submit a special report to the Deputy Chief Judge in each
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1 contested workers' compensation case in which the case is not
2 determined within 30 days of final hearing or closure of the
3 hearing record. Said form shall be provided by the director of
4 the Division of Administrative Hearings and shall contain the
5 names of the judge of compensation claims and of the attorneys
6 involved and a brief explanation by the judge of compensation
7 claims as to the reason for such a delay in issuing a final
8 order.
9 (f)(g) Notwithstanding any other provision of this
10 section, the judge of compensation claims may require the
11 appearance of the parties and counsel before her or him
12 without written notice for an emergency conference where there
13 is a bona fide emergency involving the health, safety, or
14 welfare of an employee. An emergency conference under this
15 section may result in the entry of an order or the rendering
16 of an adjudication by the judge of compensation claims.
17 (g)(h) To expedite dispute resolution and to enhance
18 the self-executing features of the Workers' Compensation Law,
19 the Deputy Chief Judge shall make provision by rule or order
20 for the resolution of appropriate motions by judges of
21 compensation claims without oral hearing upon submission of
22 brief written statements in support and opposition, and for
23 expedited discovery and docketing. Unless the judge of
24 compensation claims, for good cause, orders a hearing under
25 paragraph (h)(i), each claim in a petition relating to the
26 determination of the average weekly wage pay under s. 440.14
27 shall be resolved under this paragraph without oral hearing.
28 (h)(i) To further expedite dispute resolution and to
29 enhance the self-executing features of the system, those
30 petitions filed in accordance with s. 440.192 that involve a
31 claim for benefits of $5,000 or less shall, in the absence of
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1 compelling evidence to the contrary, be presumed to be
2 appropriate for expedited resolution under this paragraph; and
3 any other claim filed in accordance with s. 440.192, upon the
4 written agreement of both parties and application by either
5 party, may similarly be resolved under this paragraph. A claim
6 in a petition or $5,000 or less for medical benefits only or a
7 petition for reimbursement for mileage for medical purposes
8 shall, in the absence of compelling evidence to the contrary,
9 be resolved through the expedited dispute resolution process
10 provided in this paragraph. For purposes of expedited
11 resolution pursuant to this paragraph, the Deputy Chief Judge
12 shall make provision by rule or order for expedited and
13 limited discovery and expedited docketing in such cases. At
14 least 15 days prior to hearing, the parties shall exchange and
15 file with the judge of compensation claims a pretrial outline
16 of all issues, defenses, and witnesses on a form adopted by
17 the Deputy Chief Judge; provided, in no event shall such
18 hearing be held without 15 days' written notice to all
19 parties. No pretrial hearing shall be held and no mediation
20 scheduled unless requested by a party. The judge of
21 compensation claims shall limit all argument and presentation
22 of evidence at the hearing to a maximum of 30 minutes, and
23 such hearings shall not exceed 30 minutes in length. Neither
24 party shall be required to be represented by counsel. The
25 employer or carrier may be represented by an adjuster or other
26 qualified representative. The employer or carrier and any
27 witness may appear at such hearing by telephone. The rules of
28 evidence shall be liberally construed in favor of allowing
29 introduction of evidence.
30 (i)(j) A judge of compensation claims may, upon the
31 motion of a party or the judge's own motion, dismiss a
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1 petition for lack of prosecution if a petition, response,
2 motion, order, request for hearing, or notice of deposition
3 has not been filed during the previous 12 months unless good
4 cause is shown. A dismissal for lack of prosecution is without
5 prejudice and does not require a hearing.
6 (j)(k) A judge of compensation claims may not award
7 interest on unpaid medical bills and the amount of such bills
8 may not be used to calculate the amount of interest awarded.
9 Regardless of the date benefits were initially requested,
10 attorney's fees do not attach under this subsection until 30
11 days after the date the carrier or self-insured employer
12 receives the petition.
13 (5)(a) Procedures with respect to appeals from orders
14 of judges of compensation claims shall be governed by rules
15 adopted by the Supreme Court. Such an order shall become final
16 30 days after mailing of copies of such order to the parties,
17 unless appealed pursuant to such rules.
18 (b) An appellant may be relieved of any necessary
19 filing fee by filing a verified petition of indigency for
20 approval as provided in s. 57.081(1) and may be relieved in
21 whole or in part from the costs for preparation of the record
22 on appeal if, within 15 days after the date notice of the
23 estimated costs for the preparation is served, the appellant
24 files with the judge of compensation claims a copy of the
25 designation of the record on appeal, and a verified petition
26 to be relieved of costs. A verified petition filed prior to
27 the date of service of the notice of the estimated costs shall
28 be deemed not timely filed. The verified petition relating to
29 record costs shall contain a sworn statement that the
30 appellant is insolvent and a complete, detailed, and sworn
31 financial affidavit showing all the appellant's assets,
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1 liabilities, and income. Failure to state in the affidavit all
2 assets and income, including marital assets and income, shall
3 be grounds for denying the petition with prejudice. The Office
4 of the Judges of Compensation Claims shall adopt rules as may
5 be required pursuant to this subsection, including forms for
6 use in all petitions brought under this subsection. The
7 appellant's attorney, or the appellant if she or he is not
8 represented by an attorney, shall include as a part of the
9 verified petition relating to record costs an affidavit or
10 affirmation that, in her or his opinion, the notice of appeal
11 was filed in good faith and that there is a probable basis for
12 the District Court of Appeal, First District, to find
13 reversible error, and shall state with particularity the
14 specific legal and factual grounds for the opinion. Failure to
15 so affirm shall be grounds for denying the petition. A copy of
16 the verified petition relating to record costs shall be served
17 upon all interested parties. The judge of compensation claims
18 shall promptly conduct a hearing on the verified petition
19 relating to record costs, giving at least 15 days' notice to
20 the appellant, the department, and all other interested
21 parties, all of whom shall be parties to the proceedings. The
22 judge of compensation claims may enter an order without such
23 hearing if no objection is filed by an interested party within
24 20 days from the service date of the verified petition
25 relating to record costs. Such proceedings shall be conducted
26 in accordance with the provisions of this section and with the
27 workers' compensation rules of procedure, to the extent
28 applicable. In the event an insolvency petition is granted,
29 the judge of compensation claims shall direct the department
30 to pay record costs and filing fees from the Workers'
31 Compensation Administration Trust Fund pending final
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1 disposition of the costs of appeal. The department may
2 transcribe or arrange for the transcription of the record in
3 any proceeding for which it is ordered to pay the cost of the
4 record.
5 (c) As a condition of filing a notice of appeal to the
6 District Court of Appeal, First District, an employer who has
7 not secured the payment of compensation under this chapter in
8 compliance with s. 440.38 shall file with the notice of appeal
9 a good and sufficient bond, as provided in s. 59.13,
10 conditioned to pay the amount of the demand and any interest
11 and costs payable under the terms of the order if the appeal
12 is dismissed, or if the District Court of Appeal, First
13 District, affirms the award in any amount. Upon the failure of
14 such employer to file such bond with the judge of compensation
15 claims or the District Court of Appeal, First District, along
16 with the notice of appeal, the District Court of Appeal, First
17 District, shall dismiss the notice of appeal.
18 (6) An award of compensation for disability may be
19 made after the death of an injured employee.
20 (7) An injured employee claiming or entitled to
21 compensation shall submit to such physical examination by a
22 certified expert medical advisor approved by the agency or the
23 judge of compensation claims as the agency or the judge of
24 compensation claims may require. The place or places shall be
25 reasonably convenient for the employee. Such physician or
26 physicians as the employee, employer, or carrier may select
27 and pay for may participate in an examination if the employee,
28 employer, or carrier so requests. Proceedings shall be
29 suspended and no compensation shall be payable for any period
30 during which the employee may refuse to submit to examination.
31 Any interested party shall have the right in any case of death
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1 to require an autopsy, the cost thereof to be borne by the
2 party requesting it; and the judge of compensation claims
3 shall have authority to order and require an autopsy and may,
4 in her or his discretion, withhold her or his findings and
5 award until an autopsy is held.
6 Section 26. Subsections (1), (2), and (3) of section
7 440.34, Florida Statutes, are amended, and subsection (7) is
8 added to said section, to read:
9 440.34 Attorney's fees; costs.--
10 (1) A fee, gratuity, or other consideration may not be
11 paid for services rendered for a claimant in connection with
12 any proceedings arising under this chapter, unless approved as
13 reasonable by the judge of compensation claims or court having
14 jurisdiction over such proceedings. Except as provided by this
15 subsection, Any attorney's fee approved by a judge of
16 compensation claims for benefits secured on behalf of services
17 rendered to a claimant must equal to 20 percent of the first
18 $5,000 of the amount of the benefits secured, 15 percent of
19 the next $5,000 of the amount of the benefits secured, 10
20 percent of the remaining amount of the benefits secured to be
21 provided during the first 10 years after the date the claim is
22 filed, and 5 percent of the benefits secured after 10 years.
23 The judge of compensation claims shall not approve a
24 compensation order, a joint stipulation for lump-sum
25 settlement, a stipulation or agreement between a claimant and
26 his or her attorney, or any other agreement related to
27 benefits under this chapter that provides for an attorney's
28 fee in excess of the amount permitted by this section. The
29 judge of compensation claims is not required to approve any
30 retainer agreement between the claimant and his or her
31 attorney. The retainer agreement as to fees and costs may not
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1 be for compensation in excess of the amount allowed under this
2 section. However, The judge of compensation claims shall
3 consider the following factors in each case and may increase
4 or decrease the attorney's fee if, in her or his judgment, the
5 circumstances of the particular case warrant such action:
6 (a) The time and labor required, the novelty and
7 difficulty of the questions involved, and the skill requisite
8 to perform the legal service properly.
9 (b) The fee customarily charged in the locality for
10 similar legal services.
11 (c) The amount involved in the controversy and the
12 benefits resulting to the claimant.
13 (d) The time limitation imposed by the claimant or the
14 circumstances.
15 (e) The experience, reputation, and ability of the
16 lawyer or lawyers performing services.
17 (f) The contingency or certainty of a fee.
18 (2) In awarding a reasonable claimant's attorney's
19 fee, the judge of compensation claims shall consider only
20 those benefits secured by to the claimant that the attorney is
21 responsible for securing. An attorney is not entitled to
22 attorney's fees for representation in any issue that was ripe,
23 due, and owing and that reasonably could have been addressed,
24 but was not addressed, during the pendency of other issues for
25 the same injury. The amount, statutory basis, and type of
26 benefits obtained through legal representation shall be listed
27 on all attorney's fees awarded by the judge of compensation
28 claims. For purposes of this section, the term "benefits
29 secured" means benefits obtained as a result of the claimant's
30 attorney's legal services rendered in connection with the
31 claim for benefits. However, such term does not include
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1 future medical benefits to be provided on any date more than 5
2 years after the date the claim is filed. In the event an offer
3 to settle an issue pending before a judge of compensation
4 claims, including attorney's fees as provided for in this
5 section, is communicated in writing to the claimant or the
6 claimant's attorney at least 30 days prior to the trial date
7 on such issue, for purposes of calculating the amount of
8 attorney's fees to be taxed against the employer or carrier,
9 the term "benefits secured" shall be deemed to include only
10 that amount awarded to the claimant above the amount specified
11 in the offer to settle. If multiple issues are pending before
12 the judge of compensation claims, said offer of settlement
13 shall address each issue pending and shall state explicitly
14 whether or not the offer on each issue is severable. The
15 written offer shall also unequivocally state whether or not it
16 includes medical witness fees and expenses and all other costs
17 associated with the claim.
18 (3) If any party the claimant should prevail in any
19 proceedings before a judge of compensation claims or court,
20 there shall be taxed against the nonprevailing party employer
21 the reasonable costs of such proceedings, not to include the
22 attorney's fees of the claimant. A claimant shall be
23 responsible for the payment of her or his own attorney's fees,
24 except that a claimant shall be entitled to recover a
25 reasonable attorney's fee from a carrier or employer:
26 (a) Against whom she or he successfully asserts a
27 petition for medical benefits only, if the claimant has not
28 filed or is not entitled to file at such time a claim for
29 disability, permanent impairment, wage-loss, or death
30 benefits, arising out of the same accident;
31
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1 (b) In any case in which the employer or carrier files
2 a response to petition denying benefits with the Office of the
3 Judges of Compensation Claims and the injured person has
4 employed an attorney in the successful prosecution of the
5 petition;
6 (c) In a proceeding in which a carrier or employer
7 denies that an accident occurred for which compensation
8 benefits are payable, and the claimant prevails on the issue
9 of compensability; or
10 (d) In cases where the claimant successfully prevails
11 in proceedings filed under s. 440.24 or s. 440.28.
12
13 Regardless of the date benefits were initially requested,
14 attorney's fees shall not attach under this subsection until
15 30 days after the date the carrier or employer, if
16 self-insured, receives the petition. In applying the factors
17 set forth in subsection (1) to cases arising under paragraphs
18 (a), (b), (c), and (d), the judge of compensation claims must
19 only consider only such benefits and the time reasonably spent
20 in obtaining them as were secured for the claimant within the
21 scope of paragraphs (a), (b), (c), and (d).
22 (7) If an attorney's fee is owed under paragraph
23 (3)(a), the judge of compensation claims may approve an
24 alternative attorney's fee not to exceed $1,500 only once per
25 accident, based on a maximum hourly rate of $150 per hour, if
26 the judge of compensation claims expressly finds that the
27 attorney's fee amount provided for in subsection (1), based on
28 benefits secured, fails to fairly compensate the attorney for
29 disputed medical-only claims as provided in paragraph (3)(a)
30 and the circumstances of the particular case warrant such
31 action.
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1 Section 27. Subsection (7) is added to section 440.38,
2 Florida Statutes, to read:
3 440.38 Security for compensation; insurance carriers
4 and self-insurers.--
5 (7) Any employer who meets the requirements of
6 subsection (1) through a policy of insurance issued outside of
7 this state must at all times, with respect to all employees
8 working in this state, maintain the required coverage under a
9 Florida endorsement using Florida rates and rules pursuant to
10 payroll reporting that accurately reflects the work performed
11 in this state by such employees.
12 Section 28. Subsections (2) and (6) of section
13 440.381, Florida Statutes, are amended to read:
14 440.381 Application for coverage; reporting payroll;
15 payroll audit procedures; penalties.--
16 (2) Submission of an application that contains false,
17 misleading, or incomplete information provided with the
18 purpose of avoiding or reducing the amount of premiums for
19 workers' compensation coverage is a felony of the second
20 degree, punishable as provided in s. 775.082, s. 775.083, or
21 s. 775.084. The application must contain a statement that the
22 filing of an application containing false, misleading, or
23 incomplete information provided with the purpose of avoiding
24 or reducing the amount of premiums for workers' compensation
25 coverage is a felony of the third degree, punishable as
26 provided in s. 775.082, s. 775.083, or s. 775.084. The
27 application must contain a sworn statement by the employer
28 attesting to the accuracy of the information submitted and
29 acknowledging the provisions of former s. 440.37(4). The
30 application must contain a sworn statement by the agent
31 attesting that the agent explained to the employer or officer
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1 the classification codes that are used for premium
2 calculations.
3 (6)(a) If an employer understates or conceals payroll,
4 or misrepresents or conceals employee duties so as to avoid
5 proper classification for premium calculations, or
6 misrepresents or conceals information pertinent to the
7 computation and application of an experience rating
8 modification factor, the employer, or the employer's agent or
9 attorney, shall pay to the insurance carrier a penalty of 10
10 times the amount of the difference in premium paid and the
11 amount the employer should have paid and reasonable attorney's
12 fees. The penalty may be enforced in the circuit courts of
13 this state.
14 (b) If the department determines that an employer has
15 materially understated or concealed payroll, has materially
16 misrepresented or concealed employee duties so as to avoid
17 proper classification for premium calculations, or has
18 materially misrepresented or concealed information pertinent
19 to the computation and application of an experience rating
20 modification factor, the department shall immediately notify
21 the employer's carrier of such determination. The carrier
22 shall commence a physical onsite audit of the employer within
23 30 days after receiving notification from the department. If
24 the carrier fails to commence the audit as required by this
25 section, the department shall contract with auditing
26 professionals to conduct the audit at the carrier's expense. A
27 copy of the carrier's audit of the employer shall be provided
28 to the department upon completion. The carrier is not required
29 to conduct the physical onsite audit of the employer as set
30 forth in this paragraph if the carrier gives written notice of
31 cancellation to the employer within 30 days after receiving
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1 notification from the department of the material
2 misrepresentation, understatement, or concealment and an audit
3 is conducted in conjunction with the cancellation.
4 Section 29. Subsection (3) of section 440.42, Florida
5 Statutes, is amended to read:
6 440.42 Insurance policies; liability.--
7 (3) No contract or policy of insurance issued by a
8 carrier under this chapter shall expire or be canceled until
9 at least 30 days have elapsed after a notice of cancellation
10 has been sent to the department and to the employer in
11 accordance with the provisions of s. 440.185(7). For
12 cancellation due to nonpayment of premium, the insurer shall
13 mail notification to the employer at least 10 days prior to
14 the effective date of the cancellation. However, when
15 duplicate or dual coverage exists by reason of two different
16 carriers having issued policies of insurance to the same
17 employer securing the same liability, it shall be presumed
18 that only that policy with the later effective date shall be
19 in force and that the earlier policy terminated upon the
20 effective date of the latter. In the event that both policies
21 carry the same effective date, one of the policies may be
22 canceled instanter upon filing a notice of cancellation with
23 the department and serving a copy thereof upon the employer in
24 such manner as the department prescribes by rule. The
25 department may by rule prescribe the content of the notice of
26 retroactive cancellation and specify the time, place, and
27 manner in which the notice of cancellation is to be served.
28 Section 30. Paragraph (a) of subsection (4) of section
29 440.49, Florida Statutes, is amended to read:
30 440.49 Limitation of liability for subsequent injury
31 through Special Disability Trust Fund.--
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1 (4) PERMANENT IMPAIRMENT OR PERMANENT TOTAL
2 DISABILITY, TEMPORARY BENEFITS, MEDICAL BENEFITS, OR ATTENDANT
3 CARE AFTER OTHER PHYSICAL IMPAIRMENT.--
4 (a) Permanent impairment.--If an employee who has a
5 preexisting permanent physical impairment incurs a subsequent
6 permanent impairment from injury or occupational disease
7 arising out of, and in the course of, her or his employment
8 which merges with the preexisting permanent physical
9 impairment to cause a permanent impairment, the employer
10 shall, in the first instance, pay all benefits provided by
11 this chapter; but, subject to the limitations specified in
12 subsection (6), such employer shall be reimbursed from the
13 Special Disability Trust Fund created by subsection (9) for 50
14 percent of all impairment benefits which the employer has been
15 required to provide pursuant to s. 440.15(3)(a) as a result of
16 the subsequent accident or occupational disease.
17 Section 31. Subsection (6) of section 440.491, Florida
18 Statutes, is amended to read:
19 440.491 Reemployment of injured workers;
20 rehabilitation.--
21 (6) TRAINING AND EDUCATION.--
22 (a) Upon referral of an injured employee by the
23 carrier, or upon the request of an injured employee, the
24 department shall conduct a training and education screening to
25 determine whether it should refer the employee for a
26 vocational evaluation and, if appropriate, approve training
27 and education or other vocational services for the employee.
28 The department may not approve formal training and education
29 programs unless it determines, after consideration of the
30 reemployment assessment, pertinent reemployment status reviews
31 or reports, and such other relevant factors as it prescribes
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1 by rule, that the reemployment plan is likely to result in
2 return to suitable gainful employment. The department is
3 authorized to expend moneys from the Workers' Compensation
4 Administration Trust Fund, established by s. 440.50, to secure
5 appropriate training and education at a community college
6 established under part III of chapter 240 or at a
7 vocational-technical school established under s. 230.63, or to
8 secure other vocational services when necessary to satisfy the
9 recommendation of a vocational evaluator. As used in this
10 paragraph, "appropriate training and education" includes
11 securing a general education diploma (GED), if necessary. The
12 department shall establish training and education standards
13 pertaining to employee eligibility, course curricula and
14 duration, and associated costs.
15 (b) When it appears that an employee who has attained
16 maximum medical improvement is unable to earn at least 80
17 percent of the compensation rate and requires training and
18 education to obtain suitable gainful employment, the employer
19 or carrier shall pay the employee additional training and
20 education temporary total compensation benefits while the
21 employee receives such training and education for a period not
22 to exceed 26 weeks, which period may be extended for an
23 additional 26 weeks or less, if such extended period is
24 determined to be necessary and proper by a judge of
25 compensation claims. The benefits provided under this
26 paragraph shall not be in addition to the 104 weeks as
27 specified in s. 440.15(2). However, a carrier or employer is
28 not precluded from voluntarily paying additional temporary
29 total disability compensation beyond that period. If an
30 employee requires temporary residence at or near a facility or
31 an institution providing training and education which is
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1 located more than 50 miles away from the employee's customary
2 residence, the reasonable cost of board, lodging, or travel
3 must be borne by the department from the Workers' Compensation
4 Administration Trust Fund established by s. 440.50. An
5 employee who refuses to accept training and education that is
6 recommended by the vocational evaluator and considered
7 necessary by the department will forfeit any additional
8 training and education benefits and any additional payment for
9 lost wages under this chapter. The department shall adopt
10 rules to implement this section, which shall include
11 requirements placed upon the carrier to notify the injured
12 employee of the availability of training and education
13 benefits as specified in this chapter. The department shall
14 also include information regarding the eligibility for
15 training and education benefits in informational materials
16 specified in ss. 440.207 and 440.40 is subject to a 50-percent
17 reduction in weekly compensation benefits, including wage-loss
18 benefits, as determined under s. 440.15(3)(b).
19 Section 32. Section 440.525, Florida Statutes, is
20 amended to read:
21 440.525 Examination and investigation of carriers and
22 claims-handling entities.--
23 (1) The department may examine, or investigate any
24 each carrier, third-party administrator, servicing agent, or
25 other claims-handling entity as often as is warranted to
26 ensure that it is carriers are fulfilling its their
27 obligations under this chapter the law. The examination may
28 cover any period of the carrier's operations since the last
29 previous examination.
30 (2) An examination may cover any period of the
31 carrier's, third-party administrator's, servicing agent's, or
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1 other claims-handling entity's operations since the last
2 previous examination. An investigation based upon a reasonable
3 belief by the department that a material violation of this
4 chapter has occurred may cover any time period, but may not
5 predate the last examination by more than 5 years. The
6 department may by rule establish procedures, standards, and
7 protocols for examinations and investigations. If the
8 department finds any violation of this chapter, it may impose
9 administrative penalties pursuant to this chapter. If the
10 department finds any self-insurer in violation of this
11 chapter, it may take action pursuant s. 440.38(3).
12 Examinations or investigations by the department may address,
13 but are not limited to addressing, patterns or practices of
14 unreasonable delay in claims handling; timeliness and accuracy
15 of payments and reports under ss. 440.13, 440.16, and 440.185;
16 or patterns or practices of harassment, coercion, or
17 intimidation of claimants. The department may also specify by
18 rule the documentation to be maintained for each claim file.
19 (3) As to any examination or investigation conducted
20 under this chapter, the department shall have the power to
21 conduct onsite inspections of claims records and documentation
22 of a carrier, third-party administrator, servicing agent, or
23 other claims-handling entity, and conduct interviews, both
24 sworn and unsworn, of claims-handling personnel. Carriers,
25 third-party administrators, servicing agents, and other
26 claims-handling entities shall make all claims records,
27 documentation, communication, and correspondence available to
28 department personnel during regular business hours. If any
29 person fails to comply with a request for production of
30 records or documents or fails to produce an employee for
31 interview, the department may compel production or attendance
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1 by subpoena. The results of an examination or investigation
2 shall be provided to the carrier, third-party administrator,
3 servicing agent, or other claims-handling entity in a written
4 report setting forth the basis for any violations that are
5 asserted. Such report is agency action for purposes of chapter
6 120, and the aggrieved party may request a proceeding under s.
7 120.57 with regard to the findings and conclusion of the
8 report.
9 (4) If the department finds that violations of this
10 chapter have occurred, the department may impose an
11 administrative penalty upon the offending entity or entities.
12 For each offending entity, such penalties shall not exceed
13 $2,500 for each pattern or practice constituting nonwillful
14 violation and shall not exceed an aggregate amount of $10,000
15 for all nonwillful violations arising out of the same action.
16 If the department finds a pattern of practice that constitutes
17 a willful violation, the department may impose an
18 administrative penalty upon each offending entity not to
19 exceed $20,000 for each willful pattern or practice. Such
20 fines shall not exceed $100,000 for all willful violations
21 arising out of the same action. No penalty assessed under this
22 section may be recouped by any carrier in the rate base, the
23 premium, or any rate filing. Any administrative penalty
24 imposed under this section for a nonwillful violation shall
25 not duplicate an administrative penalty imposed under another
26 provision of this chapter or the Insurance Code. The
27 department may adopt rules to implement this section. The
28 department shall adopt penalty guidelines by rule to set
29 penalties under this chapter.
30 Section 33. Subsection (2) of section 627.162, Florida
31 Statutes, is amended to read:
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1 627.162 Requirements for premium installments;
2 delinquency, collection, and check return charges; attorney's
3 fees.--
4 (2) Insurers providing workers' compensation coverage
5 under chapter 440 may charge the insured a delinquency and
6 collection fee on each installment in default for a period of
7 not less than 5 days in an amount not to exceed $25 $10 or 5
8 percent of the delinquent installment, whichever is greater.
9 Only one such delinquency and collection fee may be collected
10 on any such installment regardless of the period during which
11 it remains in default.
12 Section 34. Section 627.285, Florida Statutes, is
13 created to read:
14 627.285 Independent actuarial peer review of workers'
15 compensation rating organization.--The Financial Services
16 Commission shall at least once every other year contract for
17 an independent actuarial peer review and analysis of the
18 ratemaking processes of any licensed rating organization that
19 makes rate filings for workers' compensation insurance and the
20 rating organization shall fully cooperate in the peer review.
21 The contract shall require submission of a final report to the
22 commission, the President of the Senate, and the Speaker of
23 the House of Representatives by February 1. The first report
24 shall be submitted by February 1, 2004. The costs of the
25 independent actuarial peer review shall be paid from the
26 Workers' Compensation Administration Trust Fund.
27 Section 35. Effective July, 1, 2003, paragraphs (b),
28 (c), and (d) of subsection (4) of section 627.311, Florida
29 Statutes, are amended to read
30 627.311 Joint underwriters and joint reinsurers.--
31 (4)
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1 (b) The operation of the plan is subject to the
2 supervision of a 9-member 13-member board of governors. The
3 board of governors shall be comprised of:
4 1. Three members appointed by the Financial Services
5 Commission. Each member appointed by the commission shall
6 serve at the pleasure of the commission;
7 2.1. Two Five of the 20 domestic insurers, as defined
8 in s. 624.06(1), having the largest voluntary direct premiums
9 written in this state for workers' compensation and employer's
10 liability insurance, which shall be elected by those 20
11 domestic insurers;
12 3.2. Two Five of the 20 foreign insurers as defined in
13 s. 624.06(2) having the largest voluntary direct premiums
14 written in this state for workers' compensation and employer's
15 liability insurance, which shall be elected by those 20
16 foreign insurers;
17 3. One person, who shall serve as the chair, appointed
18 by the Insurance Commissioner;
19 4. One person appointed by the largest property and
20 casualty insurance agents' association in this state; and
21 5. The consumer advocate appointed under s. 627.0613
22 or the consumer advocate's designee.
23
24 Each board member shall serve a 4-year term and may serve
25 consecutive terms. A vacancy on the board shall be filled in
26 the same manner as the original appointment for the unexpired
27 portion of the term. The Financial Services Commission shall
28 designate a member of the board to serve as chair. No board
29 member shall be an insurer which provides service to the plan
30 or which has an affiliate which provides services to the plan
31 or which is serviced by a service company or third-party
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1 administrator which provides services to the plan or which has
2 an affiliate which provides services to the plan. The minutes,
3 audits, and procedures of the board of governors are subject
4 to chapter 119.
5 (c) The operation of the plan shall be governed by a
6 plan of operation that is prepared at the direction of the
7 board of governors. The plan of operation may be changed at
8 any time by the board of governors or upon request of the
9 department. The plan of operation and all changes thereto are
10 subject to the approval of the department. The plan of
11 operation shall:
12 1. Authorize the board to engage in the activities
13 necessary to implement this subsection, including, but not
14 limited to, borrowing money.
15 2. Develop criteria for eligibility for coverage by
16 the plan, including, but not limited to, documented rejection
17 by at least two insurers which reasonably assures that
18 insureds covered under the plan are unable to acquire coverage
19 in the voluntary market. Any insured may voluntarily elect to
20 accept coverage from an insurer for a premium equal to or
21 greater than the plan premium if the insurer writing the
22 coverage adheres to the provisions of s. 627.171.
23 3. Require notice from the agent to the insured at the
24 time of the application for coverage that the application is
25 for coverage with the plan and that coverage may be available
26 through an insurer, group self-insurers' fund, commercial
27 self-insurance fund, or assessable mutual insurer through
28 another agent at a lower cost.
29 4. Establish programs to encourage insurers to provide
30 coverage to applicants of the plan in the voluntary market and
31 to insureds of the plan, including, but not limited to:
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1 a. Establishing procedures for an insurer to use in
2 notifying the plan of the insurer's desire to provide coverage
3 to applicants to the plan or existing insureds of the plan and
4 in describing the types of risks in which the insurer is
5 interested. The description of the desired risks must be on a
6 form developed by the plan.
7 b. Developing forms and procedures that provide an
8 insurer with the information necessary to determine whether
9 the insurer wants to write particular applicants to the plan
10 or insureds of the plan.
11 c. Developing procedures for notice to the plan and
12 the applicant to the plan or insured of the plan that an
13 insurer will insure the applicant or the insured of the plan,
14 and notice of the cost of the coverage offered; and developing
15 procedures for the selection of an insuring entity by the
16 applicant or insured of the plan.
17 d. Provide for a market-assistance plan to assist in
18 the placement of employers. All applications for coverage in
19 the plan received 45 days before the effective date for
20 coverage shall be processed through the market-assistance
21 plan. A market-assistance plan specifically designed to serve
22 the needs of small good policyholders as defined by the board
23 must be finalized by January 1, 1994.
24 5. Provide for policy and claims services to the
25 insureds of the plan of the nature and quality provided for
26 insureds in the voluntary market.
27 6. Provide for the review of applications for coverage
28 with the plan for reasonableness and accuracy, using any
29 available historic information regarding the insured.
30 7. Provide for procedures for auditing insureds of the
31 plan which are based on reasonable business judgment and are
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1 designed to maximize the likelihood that the plan will collect
2 the appropriate premiums.
3 8. Authorize the plan to terminate the coverage of and
4 refuse future coverage for any insured that submits a
5 fraudulent application to the plan or provides fraudulent or
6 grossly erroneous records to the plan or to any service
7 provider of the plan in conjunction with the activities of the
8 plan.
9 9. Establish service standards for agents who submit
10 business to the plan.
11 10. Establish criteria and procedures to prohibit any
12 agent who does not adhere to the established service standards
13 from placing business with the plan or receiving, directly or
14 indirectly, any commissions for business placed with the plan.
15 11. Provide for the establishment of reasonable safety
16 programs for all insureds in the plan. All insureds of the
17 plan must participate in the safety program.
18 12. Authorize the plan to terminate the coverage of
19 and refuse future coverage to any insured who fails to pay
20 premiums or surcharges when due; who, at the time of
21 application, is delinquent in payments of workers'
22 compensation or employer's liability insurance premiums or
23 surcharges owed to an insurer, group self-insurers' fund,
24 commercial self-insurance fund, or assessable mutual insurer
25 licensed to write such coverage in this state; or who refuses
26 to substantially comply with any safety programs recommended
27 by the plan.
28 13. Authorize the board of governors to provide the
29 services required by the plan through staff employed by the
30 plan, through reasonably compensated service providers who
31 contract with the plan to provide services as specified by the
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1 board of governors, or through a combination of employees and
2 service providers.
3 14. Provide for service standards for service
4 providers, methods of determining adherence to those service
5 standards, incentives and disincentives for service, and
6 procedures for terminating contracts for service providers
7 that fail to adhere to service standards.
8 15. Provide procedures for selecting service providers
9 and standards for qualification as a service provider that
10 reasonably assure that any service provider selected will
11 continue to operate as an ongoing concern and is capable of
12 providing the specified services in the manner required.
13 16. Provide for reasonable accounting and
14 data-reporting practices.
15 17. Provide for annual review of costs associated with
16 the administration and servicing of the policies issued by the
17 plan to determine alternatives by which costs can be reduced.
18 18. Authorize the acquisition of such excess insurance
19 or reinsurance as is consistent with the purposes of the plan.
20 19. Provide for an annual report to the department on
21 a date specified by the department and containing such
22 information as the department reasonably requires.
23 20. Establish multiple rating plans for various
24 classifications of risk which reflect risk of loss, hazard
25 grade, actual losses, size of premium, and compliance with
26 loss control. At least one of such plans must be a
27 preferred-rating plan to accommodate small-premium
28 policyholders with good experience as defined in
29 sub-subparagraph 22.a.
30 21. Establish agent commission schedules.
31 22. Establish four three subplans as follows:
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1 a. Subplan "A" must include those insureds whose
2 annual premium does not exceed $2,500 and who have neither
3 incurred any lost-time claims nor incurred medical-only claims
4 exceeding 50 percent of their premium for the immediate 2
5 years.
6 b. Subplan "B" must include insureds that are
7 employers identified by the board of governors as high-risk
8 employers due solely to the nature of the operations being
9 performed by those insureds and for whom no market exists in
10 the voluntary market, and whose experience modifications are
11 less than 1.00.
12 c. Subplan "C" must include all other insureds within
13 the plan that are not eligible for subplan "A," subplan "B,"
14 or subplan "D."
15 d. Subplan "D" must include any employer, regardless
16 of the length of time for which it has conducted business
17 operations, which has an experience modification factor of
18 1.10 or less and either employs 15 or fewer employees or is an
19 organization that is exempt from federal income tax pursuant
20 to s. 501(c)(3) of the Internal Revenue Code and receives more
21 than 50 percent of its funding from gifts, grants, endowments,
22 or federal or state contracts. The rate plan for subplan "D"
23 shall be the same rate plan as the plan approved under ss.
24 627.091-627.151 and each participant in subplan "D" shall pay
25 the premium determined under such rate plan, plus a surcharge
26 determined by the board to be sufficient to ensure that the
27 plan does not compete with the voluntary market rate for any
28 participant, but not to exceed 25 percent. However, the
29 surcharge shall not exceed 10 percent for an organization that
30 is exempt from federal income tax pursuant to s. 501(c)(3) of
31 the Internal Revenue Code.
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1 23. Provide for a depopulation program to reduce the
2 number of insureds in subplan "D." If an employer insured
3 through subplan "D" is offered coverage from a voluntary
4 market carrier:
5 a. During the first 30 days of coverage under the
6 subplan;
7 b. Before a policy is issued under the subplan;
8 c. By issuance of a policy upon expiration or
9 cancellation of the policy under the subplan; or
10 d. By assumption of the subplan's obligation with
11 respect to an in-force policy,
12
13 that employer is no longer eligible for coverage through the
14 plan. The premium for risks assumed by the voluntary market
15 carrier must be the same premium plus, for the first 2 years,
16 the surcharge as determined in sub-subparagraph 22.d. A
17 premium under this subparagraph, including surcharge, is
18 deemed approved and is not an excess premium for purposes of
19 s. 627.171.
20 24. Require that policies issued under subplan "D" and
21 applications for such policies must include a notice that the
22 policy issued under subplan "D" could be replaced by a policy
23 issued from a voluntary market carrier and that, if an offer
24 of coverage is obtained from a voluntary market carrier, the
25 policyholder is no longer eligible for coverage through
26 subplan "D." The notice must also specify that acceptance of
27 coverage under subplan "D" creates a conclusive presumption
28 that the applicant or policyholder is aware of this potential.
29 (d)1. The plan must be funded through actuarially
30 sound premiums charged to insureds of the plan.
31
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1 2. The plan may issue assessable policies only to
2 those insureds in subplan "C." and subplan "D." Subject to
3 verification by the department, the board may levy assessments
4 against insureds in subplan "C" or subplan "D," on a pro rata
5 earned premium basis, to fund any deficits that exist in those
6 subplans. Assessments levied against subplan "C" participants
7 shall cover only the deficits attributable to subplan "C," and
8 assessments levied against subplan "D" participants shall
9 cover only the deficits attributable to subplan "D." In no
10 event may the plan levy assessments against any person or
11 entity, except as authorized by this paragraph. Those
12 assessable policies must be clearly identified as assessable
13 by containing, in contrasting color and in not less than
14 10-point type, the following statements: "This is an
15 assessable policy. If the plan is unable to pay its
16 obligations, policyholders will be required to contribute on a
17 pro rata earned premium basis the money necessary to meet any
18 assessment levied."
19 3. The plan may issue assessable policies with
20 differing terms and conditions to different groups within
21 subplans "C" and "D" the plan when a reasonable basis exists
22 for the differentiation.
23 4. The plan may offer rating, dividend plans, and
24 other plans to encourage loss prevention programs.
25 Section 36. Paragraphs (c) and (e) of subsection (3)
26 of section 921.0022, Florida Statutes, are amended to read:
27 921.0022 Criminal Punishment Code; offense severity
28 ranking chart.--
29 (3) OFFENSE SEVERITY RANKING CHART
30 Florida Felony Description
31 Statute Degree
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1 (c) LEVEL 3
2 316.193(2)(b) 3rd Felony DUI, 3rd conviction.
3 316.1935(2) 3rd Fleeing or attempting to elude
4 law enforcement officer in marked
5 patrol vehicle with siren and
6 lights activated.
7 319.30(4) 3rd Possession by junkyard of motor
8 vehicle with identification
9 number plate removed.
10 319.33(1)(a) 3rd Alter or forge any certificate of
11 title to a motor vehicle or
12 mobile home.
13 319.33(1)(c) 3rd Procure or pass title on stolen
14 vehicle.
15 319.33(4) 3rd With intent to defraud, possess,
16 sell, etc., a blank, forged, or
17 unlawfully obtained title or
18 registration.
19 327.35(2)(b) 3rd Felony BUI.
20 328.05(2) 3rd Possess, sell, or counterfeit
21 fictitious, stolen, or fraudulent
22 titles or bills of sale of
23 vessels.
24 328.07(4) 3rd Manufacture, exchange, or possess
25 vessel with counterfeit or wrong
26 ID number.
27 376.302(5) 3rd Fraud related to reimbursement
28 for cleanup expenses under the
29 Inland Protection Trust Fund.
30
31
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1 440.105(3)(b) 3rd Receipt of fee or consideration
2 without approval by judge of
3 compensation claims.
4 440.1051(3) 3rd False report of workers'
5 compensation fraud or retaliation
6 for making such a report.
7 501.001(2)(b) 2nd Tampers with a consumer product
8 or the container using materially
9 false/misleading information.
10 697.08 3rd Equity skimming.
11 790.15(3) 3rd Person directs another to
12 discharge firearm from a vehicle.
13 796.05(1) 3rd Live on earnings of a prostitute.
14 806.10(1) 3rd Maliciously injure, destroy, or
15 interfere with vehicles or
16 equipment used in firefighting.
17 806.10(2) 3rd Interferes with or assaults
18 firefighter in performance of
19 duty.
20 810.09(2)(c) 3rd Trespass on property other than
21 structure or conveyance armed
22 with firearm or dangerous weapon.
23 812.014(2)(c)2. 3rd Grand theft; $5,000 or more but
24 less than $10,000.
25 812.0145(2)(c) 3rd Theft from person 65 years of age
26 or older; $300 or more but less
27 than $10,000.
28 815.04(4)(b) 2nd Computer offense devised to
29 defraud or obtain property.
30
31
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1 817.034(4)(a)3. 3rd Engages in scheme to defraud
2 (Florida Communications Fraud
3 Act), property valued at less
4 than $20,000.
5 817.233 3rd Burning to defraud insurer.
6 817.234(8)&(9) 3rd Unlawful solicitation of persons
7 involved in motor vehicle
8 accidents.
9 817.234(11)(a) 3rd Insurance fraud; property value
10 less than $20,000.
11 817.505(4) 3rd Patient brokering.
12 828.12(2) 3rd Tortures any animal with intent
13 to inflict intense pain, serious
14 physical injury, or death.
15 831.28(2)(a) 3rd Counterfeiting a payment
16 instrument with intent to defraud
17 or possessing a counterfeit
18 payment instrument.
19 831.29 2nd Possession of instruments for
20 counterfeiting drivers' licenses
21 or identification cards.
22 838.021(3)(b) 3rd Threatens unlawful harm to public
23 servant.
24 843.19 3rd Injure, disable, or kill police
25 dog or horse.
26 870.01(2) 3rd Riot; inciting or encouraging.
27
28
29
30
31
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1 893.13(1)(a)2. 3rd Sell, manufacture, or deliver
2 cannabis (or other s.
3 893.03(1)(c), (2)(c)1., (2)(c)2.,
4 (2)(c)3., (2)(c)5., (2)(c)6.,
5 (2)(c)7., (2)(c)8., (2)(c)9.,
6 (3), or (4) drugs).
7 893.13(1)(d)2. 2nd Sell, manufacture, or deliver s.
8 893.03(1)(c), (2)(c)1., (2)(c)2.,
9 (2)(c)3., (2)(c)5., (2)(c)6.,
10 (2)(c)7., (2)(c)8., (2)(c)9.,
11 (3), or (4) drugs within 200 feet
12 of university or public park.
13 893.13(1)(f)2. 3rd Sell, manufacture, or deliver s.
14 893.03(1)(c), (2)(c)1., (2)(c)2.,
15 (2)(c)3., (2)(c)5., (2)(c)6.,
16 (2)(c)7., (2)(c)8., (2)(c)9.,
17 (3), or (4) drugs within 200 feet
18 of public housing facility.
19 893.13(6)(a) 3rd Possession of any controlled
20 substance other than felony
21 possession of cannabis.
22 893.13(7)(a)8. 3rd Withhold information from
23 practitioner regarding previous
24 receipt of or prescription for a
25 controlled substance.
26 893.13(7)(a)9. 3rd Obtain or attempt to obtain
27 controlled substance by fraud,
28 forgery, misrepresentation, etc.
29 893.13(7)(a)10. 3rd Affix false or forged label to
30 package of controlled substance.
31
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1 893.13(7)(a)11. 3rd Furnish false or fraudulent
2 material information on any
3 document or record required by
4 chapter 893.
5 893.13(8)(a)1. 3rd Knowingly assist a patient, other
6 person, or owner of an animal in
7 obtaining a controlled substance
8 through deceptive, untrue, or
9 fraudulent representations in or
10 related to the practitioner's
11 practice.
12 893.13(8)(a)2. 3rd Employ a trick or scheme in the
13 practitioner's practice to assist
14 a patient, other person, or owner
15 of an animal in obtaining a
16 controlled substance.
17 893.13(8)(a)3. 3rd Knowingly write a prescription
18 for a controlled substance for a
19 fictitious person.
20 893.13(8)(a)4. 3rd Write a prescription for a
21 controlled substance for a
22 patient, other person, or an
23 animal if the sole purpose of
24 writing the prescription is a
25 monetary benefit for the
26 practitioner.
27 918.13(1)(a) 3rd Alter, destroy, or conceal
28 investigation evidence.
29 944.47(1)(a)1.-2. 3rd Introduce contraband to
30 correctional facility.
31
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1 944.47(1)(c) 2nd Possess contraband while upon the
2 grounds of a correctional
3 institution.
4 985.3141 3rd Escapes from a juvenile facility
5 (secure detention or residential
6 commitment facility).
7 (e) LEVEL 5
8 316.027(1)(a) 3rd Accidents involving personal
9 injuries, failure to stop;
10 leaving scene.
11 316.1935(4) 2nd Aggravated fleeing or eluding.
12 322.34(6) 3rd Careless operation of motor
13 vehicle with suspended license,
14 resulting in death or serious
15 bodily injury.
16 327.30(5) 3rd Vessel accidents involving
17 personal injury; leaving scene.
18 381.0041(11)(b) 3rd Donate blood, plasma, or organs
19 knowing HIV positive.
20
21 440.10(1)(g) 2nd Failure to obtain workers'
22 compensation coverage.
23 440.105(5) 2nd Unlawful solicitation for the
24 purpose of making workers'
25 compensation claims.
26 440.381(2) 2nd Submission of false, misleading,
27 or incomplete information with
28 the purpose of avoiding or
29 reducing workers' compensation
30 premiums.
31 790.01(2) 3rd Carrying a concealed firearm.
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1 790.162 2nd Threat to throw or discharge
2 destructive device.
3 790.163(1) 2nd False report of deadly explosive
4 or weapon of mass destruction.
5 790.221(1) 2nd Possession of short-barreled
6 shotgun or machine gun.
7 790.23 2nd Felons in possession of firearms
8 or electronic weapons or devices.
9 800.04(6)(c) 3rd Lewd or lascivious conduct;
10 offender less than 18 years.
11 800.04(7)(c) 2nd Lewd or lascivious exhibition;
12 offender 18 years or older.
13 806.111(1) 3rd Possess, manufacture, or dispense
14 fire bomb with intent to damage
15 any structure or property.
16 812.0145(2)(b) 2nd Theft from person 65 years of age
17 or older; $10,000 or more but
18 less than $50,000.
19 812.015(8) 3rd Retail theft; property stolen is
20 valued at $300 or more and one or
21 more specified acts.
22 812.019(1) 2nd Stolen property; dealing in or
23 trafficking in.
24 812.131(2)(b) 3rd Robbery by sudden snatching.
25 812.16(2) 3rd Owning, operating, or conducting
26 a chop shop.
27 817.034(4)(a)2. 2nd Communications fraud, value
28 $20,000 to $50,000.
29 817.234(11)(b) 2nd Insurance fraud; property value
30 $20,000 or more but less than
31 $100,000.
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1 817.568(2)(b) 2nd Fraudulent use of personal
2 identification information; value
3 of benefit, services received,
4 payment avoided, or amount of
5 injury or fraud, $75,000 or more.
6 817.625(2)(b) 2nd Second or subsequent fraudulent
7 use of scanning device or
8 reencoder.
9 825.1025(4) 3rd Lewd or lascivious exhibition in
10 the presence of an elderly person
11 or disabled adult.
12 827.071(4) 2nd Possess with intent to promote
13 any photographic material, motion
14 picture, etc., which includes
15 sexual conduct by a child.
16 839.13(2)(b) 2nd Falsifying records of an
17 individual in the care and
18 custody of a state agency
19 involving great bodily harm or
20 death.
21 843.01 3rd Resist officer with violence to
22 person; resist arrest with
23 violence.
24 874.05(2) 2nd Encouraging or recruiting another
25 to join a criminal street gang;
26 second or subsequent offense.
27 893.13(1)(a)1. 2nd Sell, manufacture, or deliver
28 cocaine (or other s.
29 893.03(1)(a), (1)(b), (1)(d),
30 (2)(a), (2)(b), or (2)(c)4.
31 drugs).
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1 893.13(1)(c)2. 2nd Sell, manufacture, or deliver
2 cannabis (or other s.
3 893.03(1)(c), (2)(c)1., (2)(c)2.,
4 (2)(c)3., (2)(c)5., (2)(c)6.,
5 (2)(c)7., (2)(c)8., (2)(c)9.,
6 (3), or (4) drugs) within 1,000
7 feet of a child care facility or
8 school.
9 893.13(1)(d)1. 1st Sell, manufacture, or deliver
10 cocaine (or other s.
11 893.03(1)(a), (1)(b), (1)(d),
12 (2)(a), (2)(b), or (2)(c)4.
13 drugs) within 200 feet of
14 university or public park.
15 893.13(1)(e)2. 2nd Sell, manufacture, or deliver
16 cannabis or other drug prohibited
17 under s. 893.03(1)(c), (2)(c)1.,
18 (2)(c)2., (2)(c)3., (2)(c)5.,
19 (2)(c)6., (2)(c)7., (2)(c)8.,
20 (2)(c)9., (3), or (4) within
21 1,000 feet of property used for
22 religious services or a specified
23 business site.
24 893.13(1)(f)1. 1st Sell, manufacture, or deliver
25 cocaine (or other s.
26 893.03(1)(a), (1)(b), (1)(d), or
27 (2)(a), (2)(b), or (2)(c)4.
28 drugs) within 200 feet of public
29 housing facility.
30
31
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1 893.13(4)(b) 2nd Deliver to minor cannabis (or
2 other s. 893.03(1)(c), (2)(c)1.,
3 (2)(c)2., (2)(c)3., (2)(c)5.,
4 (2)(c)6., (2)(c)7., (2)(c)8.,
5 (2)(c)9., (3), or (4) drugs).
6 Section 37. Report to the Legislature regarding
7 outstanding enforcement issues.--The Department of Financial
8 Services shall, no later than January 1, 2004, provide a
9 report to the President of the Senate, the Speaker of the
10 House of Representatives, the minority leaders of the Senate
11 and the House of Representatives, and the chairs of the
12 standing committees of the Senate and the House of
13 Representatives having jurisdiction over insurance issues,
14 containing the following information:
15 (1) Any provision of chapter 440, Florida Statutes,
16 relating to workers' compensation carrier compliance and
17 enforcement, that the department finds it is unable to
18 enforce.
19 (2) Any administrative rule relating to workers'
20 compensation carrier compliance and enforcement that the
21 department finds it is unable to enforce.
22 (3) Any other impediment to enforcement of chapter
23 440, Florida Statutes, resulting from the transfer of
24 activities from the former Department of Labor and Employment
25 Security to the department or the reorganization of the former
26 Department of Insurance into the department.
27 Section 38. Subsection (2) of section 946.523, Florida
28 Statutes, is amended to read:
29 946.523 Prison industry enhancement (PIE) programs.--
30 (2) Notwithstanding any other law to the contrary,
31 including s. 440.15(8)(9), private sector employers shall
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1 provide workers' compensation coverage to inmates who
2 participate in prison industry enhancement (PIE) programs
3 under subsection (1). However, inmates are not entitled to
4 unemployment compensation.
5 Section 39. Paragraph (c) of subsection (5) of section
6 985.315, Florida Statutes, is amended to read:
7 985.315 Educational/technical and vocational
8 work-related programs.--
9 (5)
10 (c) Notwithstanding any other law to the contrary,
11 including s. 440.15(8)(9), private sector employers shall
12 provide juveniles participating in juvenile work programs
13 under paragraph (b) with workers' compensation coverage, and
14 juveniles shall be entitled to the benefits of such coverage.
15 Nothing in this subsection shall be construed to allow
16 juveniles to participate in unemployment compensation
17 benefits.
18 Section 40. (1) There is established a Joint Select
19 Committee on Workers' Compensation Rating Reform. The
20 committee shall study the merits of requiring each workers'
21 compensation insurer to individually file its expense and
22 profit portion of a rate filing, while permitting each insurer
23 to use a lost cost filing made by a licensed rating
24 organization. The committee shall also study options for the
25 current prior approval system for workers compensation rate
26 filings, including, but not limited to, rate filing procedures
27 that would promote greater competition and would encourage
28 insurers to write workers' compensation coverage in the state
29 while protecting employers from rates that are excessive,
30 inadequate, or unfairly discriminatory.
31
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1 (2) The committee shall be composed of three Senators
2 appointed by the President of the Senate and three
3 Representatives appointed by the Speaker of the House of
4 Representatives. The appointed members of the committee shall
5 elect a chair and vice chair. The Department of Financial
6 Services shall provide information and assistance as requested
7 by the committee.
8 (3) The committee shall issue its final report and
9 recommendations to the President of the Senate and the Speaker
10 of the House of Representatives by December 1, 2003. The
11 committee shall terminate on December 1, 2003.
12 Section 41. The board of governors of the joint
13 underwriting plan for workers' compensation insurance created
14 by section 627.311(4), Florida Statutes, shall, by January 1,
15 2005, submit a report to the President of the Senate, the
16 Speaker of the House of Representatives, the minority party
17 leaders of the Senate and the House of Representatives, and
18 the chairs of the standing committees of the Senate and the
19 House of Representatives having jurisdiction over matters
20 relating to workers' compensation. The report shall include
21 the board's findings and recommendations on the following
22 issues:
23 (1) The number of policies and the aggregate premium
24 of the workers' compensation joint underwriting plan, before
25 and after enactment of this act, and projections for future
26 policy and premium growth.
27 (2) Increases or decreases in availability of workers'
28 compensation coverage in the voluntary market and the
29 effectiveness of this act in improving the availability of
30 workers' compensation coverage in the state.
31
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1 (3) The board's efforts to depopulate the plan and the
2 willingness of insurers in the voluntary market to avail
3 themselves of depopulation incentives.
4 (4) Further actions that could be taken by the
5 Legislature to improve availability of workers' compensation
6 coverage in the voluntary and residual markets.
7 (5) Actions that the board has taken to restructure
8 the joint underwriting plan and recommendations for
9 legislative action to restructure the plan.
10 (6) Projected surpluses or deficits and possible means
11 of providing funding to ensure the continued solvency of the
12 plan.
13 (7) An independent actuarial review of all rates under
14 the plan. The costs of the independent actuarial review shall
15 be paid from the Workers' Compensation Administration Trust
16 Fund, pursuant to a budget amendment approved by the
17 Legislative Budget Commission. The board shall submit a plan
18 for such review to the Legislative Budget Commission by
19 October 1, 2003.
20 (8) Such other issues as the board determines are
21 worthy of the Legislature's consideration.
22 Section 42. Subsections (1) and (2) of section
23 443.1715, Florida Statutes, are amended to read:
24 443.1715 Disclosure of information; confidentiality.--
25 (1) RECORDS AND REPORTS.--Information revealing the
26 employing unit's or individual's identity obtained from the
27 employing unit or from any individual pursuant to the
28 administration of this chapter, and any determination
29 revealing such information, except to the extent necessary for
30 the proper presentation of a claim or upon written
31 authorization of the claimant who has a workers' compensation
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1 claim pending or is receiving compensation benefits, must be
2 held confidential and exempt from the provisions of s.
3 119.07(1) and s. 24(a), Art. I of the State Constitution. Such
4 information may be made available only to public employees in
5 the performance of their public duties, including employees of
6 the Department of Education in obtaining information for the
7 Florida Education and Training Placement Information Program
8 and the Office of Tourism, Trade, and Economic Development in
9 its administration of the qualified defense contractor tax
10 refund program authorized by s. 288.1045 and the qualified
11 target industry tax refund program authorized by s. 288.106.
12 Except as otherwise provided by law, public employees
13 receiving such information must retain the confidentiality of
14 such information. Any claimant, or the claimant's legal
15 representative, at a hearing before an appeals referee or the
16 commission shall be supplied with information from such
17 records to the extent necessary for the proper presentation of
18 her or his claim. Any employee or member of the commission or
19 any employee of the division, or any other person receiving
20 confidential information, who violates any provision of this
21 subsection commits a misdemeanor of the second degree,
22 punishable as provided in s. 775.082 or s. 775.083. However,
23 the division may furnish to any employer copies of any report
24 previously submitted by such employer, upon the request of
25 such employer, and may furnish to any claimant copies of any
26 report previously submitted by such claimant, upon the request
27 of such claimant, and the division is authorized to charge
28 therefor such reasonable fee as the division may by rule
29 prescribe not to exceed the actual reasonable cost of the
30 preparation of such copies. Fees received by the division for
31
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1 copies as provided in this subsection must be deposited to the
2 credit of the Employment Security Administration Trust Fund.
3 (2) DISCLOSURE OF INFORMATION.--
4 (a) Subject to such restrictions as the division
5 prescribes by rule, information declared confidential under
6 this section may be made available to any agency of this or
7 any other state, or any federal agency, charged with the
8 administration of any unemployment compensation law or the
9 maintenance of a system of public employment offices, or the
10 Bureau of Internal Revenue of the United States Department of
11 the Treasury, or the Florida Department of Revenue and
12 information obtained in connection with the administration of
13 the employment service may be made available to persons or
14 agencies for purposes appropriate to the operation of a public
15 employment service or a job-preparatory or career education or
16 training program. The division shall on a quarterly basis,
17 furnish the National Directory of New Hires with information
18 concerning the wages and unemployment compensation paid to
19 individuals, by such dates, in such format and containing such
20 information as the Secretary of Health and Human Services
21 shall specify in regulations. Upon request therefor, the
22 division shall furnish any agency of the United States charged
23 with the administration of public works or assistance through
24 public employment, and may furnish to any state agency
25 similarly charged, the name, address, ordinary occupation, and
26 employment status of each recipient of benefits and such
27 recipient's rights to further benefits under this chapter.
28 Except as otherwise provided by law, the receiving agency must
29 retain the confidentiality of such information as provided in
30 this section. The division may request the Comptroller of the
31 Currency of the United States to cause an examination of the
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1 correctness of any return or report of any national banking
2 association rendered pursuant to the provisions of this
3 chapter and may in connection with such request transmit any
4 such report or return to the Comptroller of the Currency of
5 the United States as provided in s. 3305(c) of the federal
6 Internal Revenue Code.
7 (b)1. The employer or the employer's workers'
8 compensation carrier against whom a claim for benefits under
9 chapter 440 has been made, or a representative of either, may
10 request from the division records of wages of the employee
11 reported to the division by any employer for the quarter that
12 includes the date of the accident that is the subject of such
13 claim and for subsequent quarters. The request must be made
14 with the authorization or consent of the employee or any
15 employer who paid wages to the employee subsequent to the date
16 of the accident.
17 2. The employer or carrier shall make the request on a
18 form prescribed by rule for such purpose by the division. Such
19 form shall contain a certification by the requesting party
20 that it is a party entitled to the information requested as
21 authorized by this paragraph.
22 3. The division shall provide the most current
23 information readily available within 15 days after receiving
24 the request.
25 Section 43. Subsection (9) of section 626.989, Florida
26 Statutes, is amended to read:
27 626.989 Investigation by department or Division of
28 Insurance Fraud; compliance; immunity; confidential
29 information; reports to division; division investigator's
30 power of arrest.--
31
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1 (9) In recognition of the complementary roles of
2 investigating instances of workers' compensation fraud and
3 enforcing compliance with the workers' compensation coverage
4 requirements under chapter 440, the Department of Financial
5 Services shall Insurance is directed to prepare and submit a
6 joint performance report to the President of the Senate and
7 the Speaker of the House of Representatives by November 1,
8 2003, and then by January 1 of each year November 1 every 3
9 years thereafter, describing the results obtained in achieving
10 compliance with the workers' compensation coverage
11 requirements and reducing the incidence of workers'
12 compensation fraud. The annual report must include, but need
13 not be limited to:
14 (a) The total number of initial referrals received,
15 cases opened, cases presented for prosecution, cases closed,
16 and convictions resulting from cases presented for prosecution
17 by the Bureau of Workers' Compensation Insurance Fraud by type
18 of workers' compensation fraud and circuit.
19 (b) The number of referrals received from insurers and
20 the Division of Workers' Compensation and the outcome of those
21 referrals.
22 (c) The number of investigations undertaken by the
23 office which were not the result of a referral from an insurer
24 or the Division of Workers' Compensation.
25 (d) The number of investigations that resulted in a
26 referral to a regulatory agency and the disposition of those
27 referrals.
28 (e) The number and reasons provided by local
29 prosecutors or the statewide prosecutor for declining
30 prosecution of a case presented by the office by circuit.
31
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1 (f) The total number of employees assigned to the
2 office and the Division of Workers' Compliance unit delineated
3 by location of staff assigned and the number and location of
4 employees assigned to the office who were assigned to work
5 other types of fraud cases.
6 (g) The average caseload and turnaround time by type
7 of case for each investigator and division compliance
8 employee.
9 (h) The training provided during the year to workers'
10 compensation fraud investigators and the division's compliance
11 employees.
12 Section 44. Section 626.9891, Florida Statutes, is
13 amended to read:
14 626.9891 Insurer anti-fraud investigative units;
15 reporting requirements; penalties for noncompliance.--
16 (1) Every insurer admitted to do business in this
17 state who in the previous calendar year, at any time during
18 that year, had $10 million or more in direct premiums written
19 shall:
20 (a) Establish and maintain a unit or division within
21 the company to investigate possible fraudulent claims by
22 insureds or by persons making claims for services or repairs
23 against policies held by insureds; or
24 (b) Contract with others to investigate possible
25 fraudulent claims for services or repairs against policies
26 held by insureds.
27
28 An insurer subject to this subsection shall file with the
29 Division of Insurance Fraud of the department on or before
30 July 1, 1996, a detailed description of the unit or division
31
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1 established pursuant to paragraph (a) or a copy of the
2 contract and related documents required by paragraph (b).
3 (2) Every insurer admitted to do business in this
4 state, which in the previous calendar year had less than $10
5 million in direct premiums written, must adopt an anti-fraud
6 plan and file it with the Division of Insurance Fraud of the
7 department on or before July 1, 1996. An insurer may, in lieu
8 of adopting and filing an anti-fraud plan, comply with the
9 provisions of subsection (1).
10 (3) Each insurers anti-fraud plans shall include:
11 (a) A description of the insurer's procedures for
12 detecting and investigating possible fraudulent insurance
13 acts;
14 (b) A description of the insurer's procedures for the
15 mandatory reporting of possible fraudulent insurance acts to
16 the Division of Insurance Fraud of the department;
17 (c) A description of the insurer's plan for anti-fraud
18 education and training of its claims adjusters or other
19 personnel; and
20 (d) A written description or chart outlining the
21 organizational arrangement of the insurer's anti-fraud
22 personnel who are responsible for the investigation and
23 reporting of possible fraudulent insurance acts.
24 (4) Any insurer who obtains a certificate of authority
25 after July 1, 1995, shall have 18 months in which to comply
26 with the requirements of this section.
27 (5) For purposes of this section, the term "unit or
28 division" includes the assignment of fraud investigation to
29 employees whose principal responsibilities are the
30 investigation and disposition of claims. If an insurer creates
31 a distinct unit or division, hires additional employees, or
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1 contracts with another entity to fulfill the requirements of
2 this section, the additional cost incurred must be included as
3 an administrative expense for ratemaking purposes.
4 (6) Each insurer writing workers' compensation
5 insurance shall report to the department, on or before August
6 1 of each year, on its experience in implementing and
7 maintaining an anti-fraud investigative unit or an anti-fraud
8 plan. The report must include, at a minimum:
9 (a) The dollar amount of recoveries and losses
10 attributable to workers' compensation fraud delineated by the
11 type of fraud: claimant, employer, provider, agent, or other.
12 (b) The number of referrals to the Bureau of Workers'
13 Compensation Fraud for the prior year.
14 (c) A description of the organization of the
15 anti-fraud investigative unit, if applicable, including the
16 position titles and descriptions of staffing.
17 (d) The rationale for the level of staffing and
18 resources being provided for the anti-fraud investigative
19 unit, which may include objective criteria such as number of
20 policies written, number of claims received on an annual
21 basis, volume of suspected fraudulent claims currently being
22 detected, other factors, and an assessment of optimal caseload
23 that can be handled by an investigator on an annual basis.
24 (e) The in-service education and training provided to
25 underwriting and claims personnel to assist in identifying and
26 evaluating instances of suspected fraudulent activity in
27 underwriting or claims activities.
28 (f) A description of a public awareness program
29 focused on the costs and frequency of insurance fraud and
30 methods by which the public can prevent it.
31
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1 (7) If an insurer fails to submit a final anti-fraud
2 plan or otherwise fails to submit a plan, fails to implement
3 the provisions of a plan or an anti-fraud investigative unit,
4 or otherwise refuses to comply with the provisions of this
5 section, the department may:
6 (a) Impose an administrative fine of not more than
7 $2,000 per day for such failure by an insurer, until the
8 department deems the insurer to be in compliance;
9 (b) Impose upon the insurer a fraud detection and
10 prevention plan that is deemed to be appropriate by the
11 department and that must be implemented by the insurer; or
12 (c) Impose the provisions of both paragraphs (a) and
13 (b).
14 (8) The department may adopt rules to administer this
15 section.
16 Section 45. Section 440.1925, Florida Statutes, is
17 repealed.
18 Section 46. Paragraph (h) of subsection (2) of section
19 112.19, Florida Statutes, is amended to read:
20 112.19 Law enforcement, correctional, and correctional
21 probation officers; death benefits.--
22 (2)
23 (h)1. Any employer who employs a full-time law
24 enforcement, correctional, or correctional probation officer
25 who, on or after January 1, 1995, suffers a catastrophic
26 injury, as defined in s. 440.02, Florida Statutes 2002, in the
27 line of duty shall pay the entire premium of the employer's
28 health insurance plan for the injured employee, the injured
29 employee's spouse, and for each dependent child of the injured
30 employee until the child reaches the age of majority or until
31 the end of the calendar year in which the child reaches the
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1 age of 25 if the child continues to be dependent for support,
2 or the child is a full-time or part-time student and is
3 dependent for support. The term "health insurance plan" does
4 not include supplemental benefits that are not part of the
5 basic group health insurance plan. If the injured employee
6 subsequently dies, the employer shall continue to pay the
7 entire health insurance premium for the surviving spouse until
8 remarried, and for the dependent children, under the
9 conditions outlined in this paragraph. However:
10 a. Health insurance benefits payable from any other
11 source shall reduce benefits payable under this section.
12 b. It is unlawful for a person to willfully and
13 knowingly make, or cause to be made, or to assist, conspire
14 with, or urge another to make, or cause to be made, any false,
15 fraudulent, or misleading oral or written statement to obtain
16 health insurance coverage as provided under this paragraph. A
17 person who violates this sub-subparagraph commits a
18 misdemeanor of the first degree, punishable as provided in s.
19 775.082 or s. 775.083.
20 c. In addition to any applicable criminal penalty,
21 upon conviction for a violation as described in
22 sub-subparagraph b., a law enforcement, correctional, or
23 correctional probation officer or other beneficiary who
24 receives or seeks to receive health insurance benefits under
25 this paragraph shall forfeit the right to receive such health
26 insurance benefits, and shall reimburse the employer for all
27 benefits paid due to the fraud or other prohibited activity.
28 For purposes of this sub-subparagraph, "conviction" means a
29 determination of guilt that is the result of a plea or trial,
30 regardless of whether adjudication is withheld.
31
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1 2. In order for the officer, spouse, and dependent
2 children to be eligible for such insurance coverage, the
3 injury must have occurred as the result of the officer's
4 response to fresh pursuit, the officer's response to what is
5 reasonably believed to be an emergency, or an unlawful act
6 perpetrated by another. Except as otherwise provided herein,
7 nothing in this paragraph shall be construed to limit health
8 insurance coverage for which the officer, spouse, or dependent
9 children may otherwise be eligible, except that a person who
10 qualifies under this section shall not be eligible for the
11 health insurance subsidy provided under chapter 121, chapter
12 175, or chapter 185.
13 Section 47. Paragraph (g) of subsection (2) of section
14 112.191, Florida Statutes, is amended to read:
15 112.191 Firefighters; death benefits.--
16 (2)
17 (g)1. Any employer who employs a full-time firefighter
18 who, on or after January 1, 1995, suffers a catastrophic
19 injury, as defined in s. 440.02, Florida Statutes 2002, in the
20 line of duty shall pay the entire premium of the employer's
21 health insurance plan for the injured employee, the injured
22 employee's spouse, and for each dependent child of the injured
23 employee until the child reaches the age of majority or until
24 the end of the calendar year in which the child reaches the
25 age of 25 if the child continues to be dependent for support,
26 or the child is a full-time or part-time student and is
27 dependent for support. The term "health insurance plan" does
28 not include supplemental benefits that are not part of the
29 basic group health insurance plan. If the injured employee
30 subsequently dies, the employer shall continue to pay the
31 entire health insurance premium for the surviving spouse until
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1 remarried, and for the dependent children, under the
2 conditions outlined in this paragraph. However:
3 a. Health insurance benefits payable from any other
4 source shall reduce benefits payable under this section.
5 b. It is unlawful for a person to willfully and
6 knowingly make, or cause to be made, or to assist, conspire
7 with, or urge another to make, or cause to be made, any false,
8 fraudulent, or misleading oral or written statement to obtain
9 health insurance coverage as provided under this paragraph. A
10 person who violates this sub-subparagraph commits a
11 misdemeanor of the first degree, punishable as provided in s.
12 775.082 or s. 775.083.
13 c. In addition to any applicable criminal penalty,
14 upon conviction for a violation as described in
15 sub-subparagraph b., a firefighter or other beneficiary who
16 receives or seeks to receive health insurance benefits under
17 this paragraph shall forfeit the right to receive such health
18 insurance benefits, and shall reimburse the employer for all
19 benefits paid due to the fraud or other prohibited activity.
20 For purposes of this sub-subparagraph, "conviction" means a
21 determination of guilt that is the result of a plea or trial,
22 regardless of whether adjudication is withheld.
23 2. In order for the firefighter, spouse, and dependent
24 children to be eligible for such insurance coverage, the
25 injury must have occurred as the result of the firefighter's
26 response to what is reasonably believed to be an emergency
27 involving the protection of life or property, or an unlawful
28 act perpetrated by another. Except as otherwise provided
29 herein, nothing in this paragraph shall be construed to limit
30 health insurance coverage for which the firefighter, spouse,
31 or dependent children may otherwise be eligible, except that a
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1 person who qualifies for benefits under this section shall not
2 be eligible for the health insurance subsidy provided under
3 chapter 121, chapter 175, or chapter 185.
4 Section 48. The amendments to sections 440.02 and
5 440.15, Florida Statutes, which are made by this act shall not
6 be construed to affect any determination of disability under
7 section 112.18, section 112.181, or section 112.19, Florida
8 Statutes.
9 Section 49. If any law amended by this act was also
10 amended by a law enacted at the 2003 Regular Session of the
11 Legislature, such laws shall be construed as if they had been
12 enacted at the same session of the Legislature, and full
13 effect shall be given to each if possible.
14 Section 50. Except as otherwise provided herein, this
15 act shall take effect October 1, 2003.
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