Senate Bill sb1744

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    Florida Senate - 2005                                  SB 1744

    By Senator Alexander





    17-887-05                                            See HB 35

  1                      A bill to be entitled

  2         An act relating to workers' compensation for

  3         first responders; amending s. 440.02, F.S.;

  4         revising and providing definitions; amending s.

  5         440.09, F.S.; revising provisions relating to

  6         compensation for occupational diseases and

  7         repetitive exposure to provide an exception for

  8         first responders; amending s. 440.091, F.S.;

  9         providing that certain conditions relating to

10         smallpox vaccinations are an injury by accident

11         arising out of the employment for purposes of

12         ch. 440, F.S.; amending s. 440.093, F.S.;

13         providing conditions for compensation for first

14         responders for cases involving mental or

15         nervous injuries; providing additional

16         conditions for payment of indemnity benefits

17         under ch. 440, F.S.; providing an exception

18         with regard to determination of mental and

19         nervous injuries; amending s. 440.15, F.S.;

20         providing an additional exception with regard

21         to compensation for permanent total disability;

22         amending s. 440.151, F.S.; providing an

23         exception with regard to compensation for

24         occupational diseases; amending s. 440.34,

25         F.S.; providing factors to be considered by a

26         judge of compensation claims in awarding

27         attorney's fees and costs in cases involving

28         first responders; providing an effective date.

29  

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

31  

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1         Section 1.  Subsection (1) of section 440.02, Florida

 2  Statutes, is amended, and subsection (42) is added to that

 3  section, to read:

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

 5  the context clearly requires otherwise, the following terms

 6  shall have the following meanings:

 7         (1)  "Accident" means only an unexpected or unusual

 8  event or result that happens suddenly. Disability or death due

 9  to the accidental acceleration or aggravation of a venereal

10  disease or of a disease due to the habitual use of alcohol or

11  controlled substances or narcotic drugs, or a disease that

12  manifests itself in the fear of or dislike for an individual

13  because of the individual's race, color, religion, sex,

14  national origin, age, or handicap is not an injury by accident

15  arising out of the employment. Subject to s. 440.15(5), if a

16  preexisting disease or anomaly is accelerated or aggravated by

17  an accident arising out of and in the course of employment,

18  only acceleration of death or acceleration or aggravation of

19  the preexisting condition reasonably attributable to the

20  accident is compensable, with respect to any compensation

21  otherwise payable under this chapter. Except for cases

22  involving a first responder, an injury or disease caused by

23  exposure to a toxic substance, including, but not limited to,

24  fungus or mold, is not an injury by accident arising out of

25  the employment unless there is clear and convincing evidence

26  establishing that exposure to the specific substance involved,

27  at the levels to which the employee was exposed, can cause the

28  injury or disease sustained by the employee.

29         (42)  "First responder" means a law enforcement officer

30  as defined in s. 943.10, a firefighter as defined in s.

31  633.30, and an emergency medical technician or a paramedic as

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1  defined in s. 401.23 employed by state or local government. A

 2  volunteer firefighter engaged by state or local government is

 3  also considered a first responder for purposes of this

 4  chapter.

 5         Section 2.  Subsection (1) of section 440.09, Florida

 6  Statutes, is amended to read:

 7         440.09  Coverage.--

 8         (1)  The employer must pay compensation or furnish

 9  benefits required by this chapter if the employee suffers an

10  accidental compensable injury or death arising out of work

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

12  injury, its occupational cause, and any resulting

13  manifestations or disability must be established to a

14  reasonable degree of medical certainty, based on objective

15  relevant medical findings, and the accidental compensable

16  injury must be the major contributing cause of any resulting

17  injuries. For purposes of this section, "major contributing

18  cause" means the cause which is more than 50 percent

19  responsible for the injury as compared to all other causes

20  combined for which treatment or benefits are sought. Except

21  for cases involving a first responder, in cases involving

22  occupational disease or repetitive exposure, both causation

23  and sufficient exposure to support causation must be proven by

24  clear and convincing evidence. Pain or other subjective

25  complaints alone, in the absence of objective relevant medical

26  findings, are not compensable. For purposes of this section,

27  "objective relevant medical findings" are those objective

28  findings that correlate to the subjective complaints of the

29  injured employee and are confirmed by physical examination

30  findings or diagnostic testing. Establishment of the causal

31  relationship between a compensable accident and injuries for

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1  conditions that are not readily observable must be by medical

 2  evidence only, as demonstrated by physical examination

 3  findings or diagnostic testing. Major contributing cause must

 4  be demonstrated by medical evidence only.

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

 6  benefits for any subsequent injury the employee suffers as a

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

 8  of employment unless the original injury is the major

 9  contributing cause of the subsequent injury. Major

10  contributing cause must be demonstrated by medical evidence

11  only.

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

13  employment combines with a preexisting disease or condition to

14  cause or prolong disability or need for treatment, the

15  employer must pay compensation or benefits required by this

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

17  in the course of employment is and remains more than 50

18  percent responsible for the injury as compared to all other

19  causes combined and thereafter remains the major contributing

20  cause of the disability or need for treatment. Major

21  contributing cause must be demonstrated by medical evidence

22  only.

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

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

25  in s. 440.15(6) [F.S. 1981] shall for the purpose of this

26  chapter be considered to be a death resulting from the

27  accident causing the hernia.

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

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

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

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

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1  are entitled to compensation if the contract of employment was

 2  made in this state, or the employment was principally

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

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

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

 6  provided in this chapter.

 7         Section 3.  Subsection (4) is added to section 440.091,

 8  Florida Statutes, to read:

 9         440.091  Law enforcement officer, firefighter,

10  emergency medical technician, or paramedic; when acting within

11  the course of employment.--

12         (4)  Any adverse result or complication related to a

13  smallpox vaccination of a first responder shall be deemed to

14  be an injury by accident arising out of work performed in the

15  course and the scope of employment.

16         Section 4.  Subsections (1) and (2) of section 440.093,

17  Florida Statutes, are amended to read:

18         440.093  Mental and nervous injuries.--

19         (1)  A mental or nervous injury due to stress, fright,

20  or excitement only is not an injury by accident arising out of

21  the employment. Except for cases involving a first responder,

22  nothing in this section shall be construed to allow for the

23  payment of benefits under this chapter for mental or nervous

24  injuries without an accompanying physical injury requiring

25  medical treatment. A physical injury resulting from mental or

26  nervous injuries unaccompanied by physical trauma requiring

27  medical treatment shall not be compensable under this chapter,

28  unless the physical injury is to a first responder. For cases

29  involving a first responder, payment of medical benefits under

30  this chapter for mental or nervous injuries shall be made even

31  if the first responder's mental or nervous injury is

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1  unaccompanied by a physical injury. However, for cases

 2  involving a first responder, payment of indemnity benefits

 3  under this chapter for mental and nervous injuries shall not

 4  be made unless a physical injury accompanies the mental or

 5  nervous injury.

 6         (2)  Except for cases involving a first responder,

 7  mental or nervous injuries occurring as a manifestation of an

 8  injury compensable under this chapter shall be demonstrated by

 9  clear and convincing medical evidence by a licensed

10  psychiatrist meeting criteria established in the most recent

11  edition of the diagnostic and statistical manual of mental

12  disorders published by the American Psychiatric Association.

13  The compensable physical injury must be and remain the major

14  contributing cause of the mental or nervous condition and the

15  compensable physical injury as determined by reasonable

16  medical certainty must be at least 50 percent responsible for

17  the mental or nervous condition as compared to all other

18  contributing causes combined. Compensation is not payable for

19  the mental, psychological, or emotional injury arising out of

20  depression from being out of work or losing employment

21  opportunities, resulting from a preexisting mental,

22  psychological, or emotional condition or due to pain or other

23  subjective complaints that cannot be substantiated by

24  objective, relevant medical findings.

25         Section 5.  Paragraph (f) of subsection (1) of section

26  440.15, Florida Statutes, is amended to read:

27         440.15  Compensation for disability.--Compensation for

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

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

30         (1)  PERMANENT TOTAL DISABILITY.--

31  

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




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

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

 3  which the liability of the employer for compensation has not

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

 5  shall receive additional weekly compensation benefits equal to

 6  3 percent of her or his weekly compensation rate, as

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

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

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

10  the additional benefits payable under this paragraph, when

11  combined, may not exceed the maximum weekly compensation rate

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

13  440.12(2). These supplemental payments shall not be paid or

14  payable after the employee attains age 62, regardless of

15  whether the employee has applied for or is eligible to apply

16  for social security benefits under 42 U.S.C. s. 402 or s. 423,

17  unless the employee is not eligible for social security

18  benefits under 42 U.S.C. s. 402 or s. 423 either because the

19  employee's compensable injury has prevented the employee from

20  working sufficient quarters to be eligible for such benefits

21  or, in cases involving a first responder, the employer does

22  not participate in the social security program. These

23  supplemental benefits shall be paid by the department out of

24  the Workers' Compensation Administration Trust Fund when the

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

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

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

28  Supplemental benefits are not payable for any period prior to

29  October 1, 1974.

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

31  periodic reporting to the department of all earnings of any

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1  nature and social security income by the injured employee

 2  entitled to or claiming additional compensation under

 3  subparagraph 1. Neither the department nor the employer or

 4  carrier shall make any payment of those additional benefits

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

 6  employee willfully fails or refuses to report upon request by

 7  the department in the manner prescribed by such rules.

 8         b.  The department shall provide by rule for the

 9  periodic reporting to the employer or carrier of all earnings

10  of any nature and social security income by the injured

11  employee entitled to or claiming benefits for permanent total

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

13  any payment of benefits for permanent total disability for any

14  period during which the employee willfully fails or refuses to

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

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

17  permanent total disability benefits refuses to apply for or

18  cooperate with the employer or carrier in applying for social

19  security benefits.

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

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

22  compensation benefits, the employee's benefits under this

23  paragraph shall be computed on the employee's weekly

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

25         Section 6.  Paragraph (a) of subsection (1) and

26  subsection (2) of section 440.151, Florida Statutes, are

27  amended to read:

28         440.151  Occupational diseases.--

29         (1)(a)  Where the employer and employee are subject to

30  the provisions of the Workers' Compensation Law, the

31  disablement or death of an employee resulting from an

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1  occupational disease as hereinafter defined shall be treated

 2  as the happening of an injury by accident, notwithstanding any

 3  other provisions of this chapter, and the employee or, in case

 4  of death, the employee's dependents shall be entitled to

 5  compensation as provided by this chapter, except as

 6  hereinafter otherwise provided; and the practice and procedure

 7  prescribed by this chapter shall apply to all proceedings

 8  under this section, except as hereinafter otherwise provided.

 9  Provided, however, that in no case shall an employer be liable

10  for compensation under the provisions of this section unless

11  such disease has resulted from the nature of the employment in

12  which the employee was engaged under such employer and, was

13  actually contracted while so engaged, and the nature of the

14  employment was the major contributing cause of the disease.

15  Major contributing cause must be shown by medical evidence

16  only, as demonstrated by physical examination findings and

17  diagnostic testing. "Nature of the employment" means that in

18  the occupation in which the employee was so engaged there is

19  attached a particular hazard of such disease that

20  distinguishes it from the usual run of occupations, or the

21  incidence of such disease is substantially higher in the

22  occupation in which the employee was so engaged than in the

23  usual run of occupations. In claims for death under s. 440.16,

24  death must occur within 350 weeks after last exposure. Except

25  for cases involving a first responder, both causation and

26  sufficient exposure to a specific harmful substance shown to

27  be present in the workplace to support causation shall be

28  proven by clear and convincing evidence.

29         (2)  Whenever used in this section the term

30  "occupational disease" shall be construed to mean only a

31  disease which is due to causes and conditions which are

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1  characteristic of and peculiar to a particular trade,

 2  occupation, process, or employment, and to exclude all

 3  ordinary diseases of life to which the general public is

 4  exposed, unless the incidence of the disease is substantially

 5  higher in the particular trade, occupation, process, or

 6  employment than for the general public. Except for cases

 7  involving a first responder, "occupational disease" means only

 8  a disease for which there are epidemiological studies showing

 9  that exposure to the specific substance involved, at the

10  levels to which the employee was exposed, may cause the

11  precise disease sustained by the employee.

12         Section 7.  Subsections (1) and (7) of section 440.34,

13  Florida Statutes, are amended to read:

14         440.34  Attorney's fees; costs.--

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

16  paid for a claimant in connection with any proceedings arising

17  under this chapter, unless approved as reasonable by the judge

18  of compensation claims or court having jurisdiction over such

19  proceedings. Any attorney's fee approved by a judge of

20  compensation claims for benefits secured on behalf of a

21  claimant must equal to 20 percent of the first $5,000 of the

22  amount of the benefits secured, 15 percent of the next $5,000

23  of the amount of the benefits secured, 10 percent of the

24  remaining amount of the benefits secured to be provided during

25  the first 10 years after the date the claim is filed, and 5

26  percent of the benefits secured after 10 years. The judge of

27  compensation claims shall not approve a compensation order, a

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

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

30  other agreement related to benefits under this chapter that

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

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1  permitted by this section. The judge of compensation claims is

 2  not required to approve any retainer agreement between the

 3  claimant and his or her attorney. The retainer agreement as to

 4  fees and costs may not be for compensation in excess of the

 5  amount allowed under this section. However, for cases

 6  involving a first responder with an alleged exposure to toxic

 7  substances or occupational disease claim, the judge of

 8  compensation claims shall consider the following factors in

 9  each case and may increase or decrease the attorney's fee if,

10  in his or her judgment, the circumstances of the particular

11  case warrant such action:

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

13  difficulty of the questions involved, and the skill required

14  to perform the legal service properly.

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

16  similar legal services.

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

18  benefits payable to the claimant.

19         (d)  The time limitations imposed by the claimant or

20  the circumstances.

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

22  attorney or attorneys performing services.

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

24         (7)  Except for cases involving a first responder with

25  an alleged exposure to toxic substances or occupational

26  disease claim, if an attorney's fee is owed under paragraph

27  (3)(a), the judge of compensation claims may approve an

28  alternative attorney's fee not to exceed $1,500 only once per

29  accident, based on a maximum hourly rate of $150 per hour, if

30  the judge of compensation claims expressly finds that the

31  attorney's fee amount provided for in subsection (1), based on

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    Florida Senate - 2005                                  SB 1744
    17-887-05                                            See HB 35




 1  benefits secured, fails to fairly compensate the attorney for

 2  disputed medical-only claims as provided in paragraph (3)(a)

 3  and the circumstances of the particular case warrant such

 4  action.

 5         Section 8.  This act shall take effect upon becoming a

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