| 1 | A bill to be entitled |
| 2 | An act relating to workers' compensation for first |
| 3 | responders; amending s. 440.02, F.S.; revising and |
| 4 | providing definitions; amending s. 440.09, F.S.; revising |
| 5 | provisions relating to compensation for occupational |
| 6 | diseases and repetitive exposure to provide an exception |
| 7 | for first responders; amending s. 440.091, F.S.; providing |
| 8 | that certain conditions relating to smallpox vaccinations |
| 9 | are an injury by accident arising out of the employment |
| 10 | for purposes of ch. 440, F.S.; amending s. 440.093, F.S.; |
| 11 | providing conditions for compensation for first responders |
| 12 | for cases involving mental or nervous injuries; providing |
| 13 | additional conditions for payment of indemnity benefits |
| 14 | under ch. 440, F.S.; providing an exception with regard to |
| 15 | determination of mental and nervous injuries; amending s. |
| 16 | 440.15, F.S.; providing an additional exception with |
| 17 | regard to compensation for permanent total disability; |
| 18 | amending s. 440.151, F.S.; providing an exception with |
| 19 | regard to compensation for occupational diseases; amending |
| 20 | s. 440.34, F.S.; providing factors to be considered by a |
| 21 | judge of compensation claims in awarding attorney's fees |
| 22 | and costs in cases involving first responders; providing |
| 23 | an effective date. |
| 24 |
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| 25 | Be It Enacted by the Legislature of the State of Florida: |
| 26 |
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| 27 | Section 1. Subsection (1) of section 440.02, Florida |
| 28 | Statutes, is amended, and subsection (42) is added to said |
| 29 | section, to read: |
| 30 | 440.02 Definitions.--When used in this chapter, unless the |
| 31 | context clearly requires otherwise, the following terms shall |
| 32 | have the following meanings: |
| 33 | (1) "Accident" means only an unexpected or unusual event |
| 34 | or result that happens suddenly. Disability or death due to the |
| 35 | accidental acceleration or aggravation of a venereal disease or |
| 36 | of a disease due to the habitual use of alcohol or controlled |
| 37 | substances or narcotic drugs, or a disease that manifests itself |
| 38 | in the fear of or dislike for an individual because of the |
| 39 | individual's race, color, religion, sex, national origin, age, |
| 40 | or handicap is not an injury by accident arising out of the |
| 41 | employment. Subject to s. 440.15(5), if a preexisting disease or |
| 42 | anomaly is accelerated or aggravated by an accident arising out |
| 43 | of and in the course of employment, only acceleration of death |
| 44 | or acceleration or aggravation of the preexisting condition |
| 45 | reasonably attributable to the accident is compensable, with |
| 46 | respect to any compensation otherwise payable under this |
| 47 | chapter. Except for cases involving a first responder, an injury |
| 48 | or disease caused by exposure to a toxic substance, including, |
| 49 | but not limited to, fungus or mold, is not an injury by accident |
| 50 | arising out of the employment unless there is clear and |
| 51 | convincing evidence establishing that exposure to the specific |
| 52 | substance involved, at the levels to which the employee was |
| 53 | exposed, can cause the injury or disease sustained by the |
| 54 | employee. |
| 55 | (42) "First responder" means a law enforcement officer as |
| 56 | defined in s. 943.10, a firefighter as defined in s. 633.30, and |
| 57 | an emergency medical technician or a paramedic as defined in s. |
| 58 | 401.23 employed by state or local government. A volunteer |
| 59 | firefighter engaged by state or local government is also |
| 60 | considered a first responder for purposes of this chapter. |
| 61 | Section 2. Subsection (1) of section 440.09, Florida |
| 62 | Statutes, is amended to read: |
| 63 | 440.09 Coverage.-- |
| 64 | (1) The employer must pay compensation or furnish benefits |
| 65 | required by this chapter if the employee suffers an accidental |
| 66 | compensable injury or death arising out of work performed in the |
| 67 | course and the scope of employment. The injury, its occupational |
| 68 | cause, and any resulting manifestations or disability must be |
| 69 | established to a reasonable degree of medical certainty, based |
| 70 | on objective relevant medical findings, and the accidental |
| 71 | compensable injury must be the major contributing cause of any |
| 72 | resulting injuries. For purposes of this section, "major |
| 73 | contributing cause" means the cause which is more than 50 |
| 74 | percent responsible for the injury as compared to all other |
| 75 | causes combined for which treatment or benefits are sought. |
| 76 | Except for cases involving a first responder, in cases involving |
| 77 | occupational disease or repetitive exposure, both causation and |
| 78 | sufficient exposure to support causation must be proven by clear |
| 79 | and convincing evidence. Pain or other subjective complaints |
| 80 | alone, in the absence of objective relevant medical findings, |
| 81 | are not compensable. For purposes of this section, "objective |
| 82 | relevant medical findings" are those objective findings that |
| 83 | correlate to the subjective complaints of the injured employee |
| 84 | and are confirmed by physical examination findings or diagnostic |
| 85 | testing. Establishment of the causal relationship between a |
| 86 | compensable accident and injuries for conditions that are not |
| 87 | readily observable must be by medical evidence only, as |
| 88 | demonstrated by physical examination findings or diagnostic |
| 89 | testing. Major contributing cause must be demonstrated by |
| 90 | medical evidence only. |
| 91 | (a) This chapter does not require any compensation or |
| 92 | benefits for any subsequent injury the employee suffers as a |
| 93 | result of an original injury arising out of and in the course of |
| 94 | employment unless the original injury is the major contributing |
| 95 | cause of the subsequent injury. Major contributing cause must be |
| 96 | demonstrated by medical evidence only. |
| 97 | (b) If an injury arising out of and in the course of |
| 98 | employment combines with a preexisting disease or condition to |
| 99 | cause or prolong disability or need for treatment, the employer |
| 100 | must pay compensation or benefits required by this chapter only |
| 101 | to the extent that the injury arising out of and in the course |
| 102 | of employment is and remains more than 50 percent responsible |
| 103 | for the injury as compared to all other causes combined and |
| 104 | thereafter remains the major contributing cause of the |
| 105 | disability or need for treatment. Major contributing cause must |
| 106 | be demonstrated by medical evidence only. |
| 107 | (c) Death resulting from an operation by a surgeon |
| 108 | furnished by the employer for the cure of hernia as required in |
| 109 | s. 440.15(6) [F.S. 1981] shall for the purpose of this chapter |
| 110 | be considered to be a death resulting from the accident causing |
| 111 | the hernia. |
| 112 | (d) If an accident happens while the employee is employed |
| 113 | elsewhere than in this state, which would entitle the employee |
| 114 | or his or her dependents to compensation if it had happened in |
| 115 | this state, the employee or his or her dependents are entitled |
| 116 | to compensation if the contract of employment was made in this |
| 117 | state, or the employment was principally localized in this |
| 118 | state. However, if an employee receives compensation or damages |
| 119 | under the laws of any other state, the total compensation for |
| 120 | the injury may not be greater than is provided in this chapter. |
| 121 | Section 3. Subsection (4) is added to section 440.091, |
| 122 | Florida Statutes, to read: |
| 123 | 440.091 Law enforcement officer, firefighter, emergency |
| 124 | medical technician, or paramedic; when acting within the course |
| 125 | of employment.-- |
| 126 | (4) Any adverse result or complication related to a |
| 127 | smallpox vaccination of a first responder shall be deemed to be |
| 128 | an injury by accident arising out of work performed in the |
| 129 | course and the scope of employment. |
| 130 | Section 4. Subsections (1) and (2) of section 440.093, |
| 131 | Florida Statutes, are amended to read: |
| 132 | 440.093 Mental and nervous injuries.-- |
| 133 | (1) A mental or nervous injury due to stress, fright, or |
| 134 | excitement only is not an injury by accident arising out of the |
| 135 | employment. Except for cases involving a first responder, |
| 136 | nothing in this section shall be construed to allow for the |
| 137 | payment of benefits under this chapter for mental or nervous |
| 138 | injuries without an accompanying physical injury requiring |
| 139 | medical treatment. A physical injury resulting from mental or |
| 140 | nervous injuries unaccompanied by physical trauma requiring |
| 141 | medical treatment shall not be compensable under this chapter, |
| 142 | unless the physical injury is to a first responder. For cases |
| 143 | involving a first responder, payment of medical benefits under |
| 144 | this chapter for mental or nervous injuries shall be made even |
| 145 | if the first responder's mental or nervous injury is |
| 146 | unaccompanied by a physical injury. However, for cases involving |
| 147 | a first responder, payment of indemnity benefits under this |
| 148 | chapter for mental and nervous injuries shall not be made unless |
| 149 | a physical injury accompanies the mental or nervous injury. |
| 150 | (2) Except for cases involving a first responder, mental |
| 151 | or nervous injuries occurring as a manifestation of an injury |
| 152 | compensable under this chapter shall be demonstrated by clear |
| 153 | and convincing medical evidence by a licensed psychiatrist |
| 154 | meeting criteria established in the most recent edition of the |
| 155 | diagnostic and statistical manual of mental disorders published |
| 156 | by the American Psychiatric Association. The compensable |
| 157 | physical injury must be and remain the major contributing cause |
| 158 | of the mental or nervous condition and the compensable physical |
| 159 | injury as determined by reasonable medical certainty must be at |
| 160 | least 50 percent responsible for the mental or nervous condition |
| 161 | as compared to all other contributing causes combined. |
| 162 | Compensation is not payable for the mental, psychological, or |
| 163 | emotional injury arising out of depression from being out of |
| 164 | work or losing employment opportunities, resulting from a |
| 165 | preexisting mental, psychological, or emotional condition or due |
| 166 | to pain or other subjective complaints that cannot be |
| 167 | substantiated by objective, relevant medical findings. |
| 168 | Section 5. Paragraph (f) of subsection (1) of section |
| 169 | 440.15, Florida Statutes, is amended to read: |
| 170 | 440.15 Compensation for disability.--Compensation for |
| 171 | disability shall be paid to the employee, subject to the limits |
| 172 | provided in s. 440.12(2), as follows: |
| 173 | (1) PERMANENT TOTAL DISABILITY.-- |
| 174 | (f)1. If permanent total disability results from injuries |
| 175 | that occurred subsequent to June 30, 1955, and for which the |
| 176 | liability of the employer for compensation has not been |
| 177 | discharged under s. 440.20(11), the injured employee shall |
| 178 | receive additional weekly compensation benefits equal to 3 |
| 179 | percent of her or his weekly compensation rate, as established |
| 180 | pursuant to the law in effect on the date of her or his injury, |
| 181 | multiplied by the number of calendar years since the date of |
| 182 | injury. The weekly compensation payable and the additional |
| 183 | benefits payable under this paragraph, when combined, may not |
| 184 | exceed the maximum weekly compensation rate in effect at the |
| 185 | time of payment as determined pursuant to s. 440.12(2). These |
| 186 | supplemental payments shall not be paid or payable after the |
| 187 | employee attains age 62, regardless of whether the employee has |
| 188 | applied for or is eligible to apply for social security benefits |
| 189 | under 42 U.S.C. s. 402 or s. 423, unless the employee is not |
| 190 | eligible for social security benefits under 42 U.S.C. s. 402 or |
| 191 | s. 423 either because the employee's compensable injury has |
| 192 | prevented the employee from working sufficient quarters to be |
| 193 | eligible for such benefits or, in cases involving a first |
| 194 | responder, the employer does not participate in the social |
| 195 | security program. These supplemental benefits shall be paid by |
| 196 | the department out of the Workers' Compensation Administration |
| 197 | Trust Fund when the injury occurred subsequent to June 30, 1955, |
| 198 | and before July 1, 1984. These supplemental benefits shall be |
| 199 | paid by the employer when the injury occurred on or after July |
| 200 | 1, 1984. Supplemental benefits are not payable for any period |
| 201 | prior to October 1, 1974. |
| 202 | 2.a. The department shall provide by rule for the periodic |
| 203 | reporting to the department of all earnings of any nature and |
| 204 | social security income by the injured employee entitled to or |
| 205 | claiming additional compensation under subparagraph 1. Neither |
| 206 | the department nor the employer or carrier shall make any |
| 207 | payment of those additional benefits provided by subparagraph 1. |
| 208 | for any period during which the employee willfully fails or |
| 209 | refuses to report upon request by the department in the manner |
| 210 | prescribed by such rules. |
| 211 | b. The department shall provide by rule for the periodic |
| 212 | reporting to the employer or carrier of all earnings of any |
| 213 | nature and social security income by the injured employee |
| 214 | entitled to or claiming benefits for permanent total disability. |
| 215 | The employer or carrier is not required to make any payment of |
| 216 | benefits for permanent total disability for any period during |
| 217 | which the employee willfully fails or refuses to report upon |
| 218 | request by the employer or carrier in the manner prescribed by |
| 219 | such rules or if any employee who is receiving permanent total |
| 220 | disability benefits refuses to apply for or cooperate with the |
| 221 | employer or carrier in applying for social security benefits. |
| 222 | 3. When an injured employee receives a full or partial |
| 223 | lump-sum advance of the employee's permanent total disability |
| 224 | compensation benefits, the employee's benefits under this |
| 225 | paragraph shall be computed on the employee's weekly |
| 226 | compensation rate as reduced by the lump-sum advance. |
| 227 | Section 6. Paragraph (a) of subsection (1) and subsection |
| 228 | (2) of section 440.151, Florida Statutes, are amended to read: |
| 229 | 440.151 Occupational diseases.-- |
| 230 | (1)(a) Where the employer and employee are subject to the |
| 231 | provisions of the Workers' Compensation Law, the disablement or |
| 232 | death of an employee resulting from an occupational disease as |
| 233 | hereinafter defined shall be treated as the happening of an |
| 234 | injury by accident, notwithstanding any other provisions of this |
| 235 | chapter, and the employee or, in case of death, the employee's |
| 236 | dependents shall be entitled to compensation as provided by this |
| 237 | chapter, except as hereinafter otherwise provided; and the |
| 238 | practice and procedure prescribed by this chapter shall apply to |
| 239 | all proceedings under this section, except as hereinafter |
| 240 | otherwise provided. Provided, however, that in no case shall an |
| 241 | employer be liable for compensation under the provisions of this |
| 242 | section unless such disease has resulted from the nature of the |
| 243 | employment in which the employee was engaged under such |
| 244 | employer, was actually contracted while so engaged, and the |
| 245 | nature of the employment was the major contributing cause of the |
| 246 | disease. Major contributing cause must be shown by medical |
| 247 | evidence only, as demonstrated by physical examination findings |
| 248 | and diagnostic testing. "Nature of the employment" means that in |
| 249 | the occupation in which the employee was so engaged there is |
| 250 | attached a particular hazard of such disease that distinguishes |
| 251 | it from the usual run of occupations, or the incidence of such |
| 252 | disease is substantially higher in the occupation in which the |
| 253 | employee was so engaged than in the usual run of occupations. In |
| 254 | claims for death under s. 440.16, death must occur within 350 |
| 255 | weeks after last exposure. Except for cases involving a first |
| 256 | responder, both causation and sufficient exposure to a specific |
| 257 | harmful substance shown to be present in the workplace to |
| 258 | support causation shall be proven by clear and convincing |
| 259 | evidence. |
| 260 | (2) Whenever used in this section the term "occupational |
| 261 | disease" shall be construed to mean only a disease which is due |
| 262 | to causes and conditions which are characteristic of and |
| 263 | peculiar to a particular trade, occupation, process, or |
| 264 | employment, and to exclude all ordinary diseases of life to |
| 265 | which the general public is exposed, unless the incidence of the |
| 266 | disease is substantially higher in the particular trade, |
| 267 | occupation, process, or employment than for the general public. |
| 268 | "Occupational disease," except for cases involving a first |
| 269 | responder, means only a disease for which there are |
| 270 | epidemiological studies showing that exposure to the specific |
| 271 | substance involved, at the levels to which the employee was |
| 272 | exposed, may cause the precise disease sustained by the |
| 273 | employee. |
| 274 | Section 7. Subsections (1) and (7) of section 440.34, |
| 275 | Florida Statutes, are amended to read: |
| 276 | 440.34 Attorney's fees; costs.-- |
| 277 | (1) A fee, gratuity, or other consideration may not be |
| 278 | paid for a claimant in connection with any proceedings arising |
| 279 | under this chapter, unless approved as reasonable by the judge |
| 280 | of compensation claims or court having jurisdiction over such |
| 281 | proceedings. Any attorney's fee approved by a judge of |
| 282 | compensation claims for benefits secured on behalf of a claimant |
| 283 | must equal to 20 percent of the first $5,000 of the amount of |
| 284 | the benefits secured, 15 percent of the next $5,000 of the |
| 285 | amount of the benefits secured, 10 percent of the remaining |
| 286 | amount of the benefits secured to be provided during the first |
| 287 | 10 years after the date the claim is filed, and 5 percent of the |
| 288 | benefits secured after 10 years. The judge of compensation |
| 289 | claims shall not approve a compensation order, a joint |
| 290 | stipulation for lump-sum settlement, a stipulation or agreement |
| 291 | between a claimant and his or her attorney, or any other |
| 292 | agreement related to benefits under this chapter that provides |
| 293 | for an attorney's fee in excess of the amount permitted by this |
| 294 | section. The judge of compensation claims is not required to |
| 295 | approve any retainer agreement between the claimant and his or |
| 296 | her attorney. The retainer agreement as to fees and costs may |
| 297 | not be for compensation in excess of the amount allowed under |
| 298 | this section. However, for cases involving a first responder |
| 299 | with an alleged exposure to toxic substances or occupational |
| 300 | disease claim, the judge of compensation claims shall consider |
| 301 | the following factors in each case and may increase or decrease |
| 302 | the attorney's fee if, in her or his judgment, the circumstances |
| 303 | of the particular case warrant such action: |
| 304 | (a) The time and labor required, the novelty and |
| 305 | difficulty of the questions involved, and the skill required to |
| 306 | perform the legal service properly. |
| 307 | (b) The fee customarily charged in the locality for |
| 308 | similar legal services. |
| 309 | (c) The amount involved in the controversy and the |
| 310 | benefits payable to the claimant. |
| 311 | (d) The time limitations imposed by the claimant or the |
| 312 | circumstances. |
| 313 | (e) The experience, reputation, and ability of the |
| 314 | attorney or attorneys performing services. |
| 315 | (f) The contingency or certainty of a fee. |
| 316 | (7) Except for cases involving a first responder with an |
| 317 | alleged exposure to toxic substances or occupational disease |
| 318 | claim, if an attorney's fee is owed under paragraph (3)(a), the |
| 319 | judge of compensation claims may approve an alternative |
| 320 | attorney's fee not to exceed $1,500 only once per accident, |
| 321 | based on a maximum hourly rate of $150 per hour, if the judge of |
| 322 | compensation claims expressly finds that the attorney's fee |
| 323 | amount provided for in subsection (1), based on benefits |
| 324 | secured, fails to fairly compensate the attorney for disputed |
| 325 | medical-only claims as provided in paragraph (3)(a) and the |
| 326 | circumstances of the particular case warrant such action. |
| 327 | Section 8. This act shall take effect upon becoming a law. |