Senate Bill sb2416

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    Florida Senate - 2005                                  SB 2416

    By Senator Hill





    1-1398-05

  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         providing rights and remedies on behalf of

  4         injured workers; providing for access to

  5         physicians; prescribing procedures with respect

  6         to workers' compensation proceedings; providing

  7         that subpoenas be issued by judges of

  8         compensation claims only; prescribing rights to

  9         benefits, including compensation, training, and

10         employment; limiting employers and insurance

11         carriers in their activities in workers'

12         compensation cases; prescribing duties of the

13         Department of Financial Services with respect

14         to workers' compensation cases; prescribing

15         limits on the dissemination and discovery of

16         records, including medical records; amending s.

17         440.34, F.S.; reinstating former provisions

18         that provided procedures and remedies in cases

19         of bad-faith dealings; providing an effective

20         date.

21  

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

23  

24         Section 1.  (1)  An injured worker must be allowed

25  immediate access to necessary medical treatment and indemnity

26  benefits as promised in the exclusive remedy. If a carrier

27  fails to provide such access without convincing evidence that

28  the injured worker did not incur the injury at work or

29  conclusive evidence of an act of fraud, the injured worker

30  retains the right to file a civil lawsuit, outside the

31  workers' compensation system, against the carrier for

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    Florida Senate - 2005                                  SB 2416
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 1  negligence and may recover any losses that result from denial

 2  of legitimate benefits, including, but not limited to,

 3  benefits guaranteed under the law, plus penalties and

 4  interest; equity in a home or vehicle; consideration of

 5  increased impairment as a result of failure to approve medical

 6  treatment; awards to compensate for loss of credit status;

 7  awards for psychological stress and related illness as a

 8  result of denial of benefits; and any other award the jury

 9  finds compensable. The employer or the carrier, or both, is

10  responsible for paying all legal fees, both of the claimant

11  and of the defense, if the claimant wins the civil suit.

12         (2)  Injured workers may choose their own physicians

13  from a statewide list of participating physicians who accept

14  workers' compensation insurance, which list is compiled and

15  maintained by the Department of Financial Services and

16  contains the names of all such physicians in the state who

17  accept new patients. Each injured worker shall choose a family

18  physician to coordinate his or her treatment and referrals

19  during his or her injury. A specialist of any kind may not be

20  chosen as a family physician. Each carrier is entitled to one

21  independent medical examination of its choice per specialty,

22  as is the injured worker if the independent medical

23  examination disputes the diagnosis and treatment plan of the

24  treating physician. A carrier must follow the same fee

25  schedule as the injured worker. A yearly assessment on

26  impairment must be done by the injured worker's family

27  physician and any other specialty physician relating to the

28  on-the-job injury if the family physician feels that a

29  referral is necessary to complete the assessment.

30         (3)  A carrier cannot change an injured worker's

31  physicians or refuse referrals without justification and the

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    Florida Senate - 2005                                  SB 2416
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 1  approval of the injured worker. If a dispute arises on this

 2  issue, the judge of compensation claims shall grant a motion

 3  for a hearing within 5 working days after notification of the

 4  dispute, to fairly resolve the issue if it cannot be resolved

 5  by the Employee Assistance Office within 1 week after the

 6  issue has been referred to that office. The judge of

 7  compensation claims shall make an adjudication on this issue

 8  at the hearing or within 7 working days thereafter.

 9         (4)  There is no limitation on temporary benefits.

10  Benefits shall stop at the date of maximum medical improvement

11  regardless of the length of time required to get to maximum

12  medical improvement unless the person is permanently and

13  totally disabled. Before any benefits are stopped or the

14  injured worker is placed on permanent total disability, he or

15  she must be assessed at maximum medical improvement by all

16  treating physicians and an impairment rating must be received

17  by all treating physicians or from a specialist in every area

18  of injury, or both. Treating physicians' opinions shall have

19  the greatest weight in the case of any dispute. Maximum

20  medical improvement may not always indicate that an injured

21  worker can return to work. Any injured worker on medications

22  that restrict him or her from driving or operating machinery

23  will be compensated until a date when the treating physician

24  decides it is safe for the injured worker to drive while

25  medicated or the injured worker is taken off the medication.

26  This includes any drug with a dosage such that the Florida

27  Highway Patrol would consider a driver who drives while taking

28  that dosage as intoxicated or driving under the influence and

29  could lead to loss of driver's license if the injured worker

30  is driving while impaired by the drug. If an injured worker is

31  too impaired to drive while medicated, he or she is too

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    Florida Senate - 2005                                  SB 2416
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 1  impaired to work. During this time, if the person is not

 2  permanently and totally disabled, he or she will be considered

 3  temporarily totally disabled and benefits must be paid.

 4         (5)  An employer or carrier may not dispute a case if

 5  it fails to do so in the 120-day period provided by law for

 6  investigation unless there is clear and convincing evidence of

 7  a significant change in the injured worker's impairment rating

 8  by his or her treating physician or clear and convincing

 9  evidence of fraud.

10         (6)  The Department of Financial Services shall compile

11  a list of physicians statewide who are willing to take

12  out-of-state workers' compensation claims for residents who

13  have moved to this state after injury in another state. The

14  department shall help workers injured out of state secure

15  their benefits from carriers in other states by working with

16  the workers' compensation systems in the other states.

17         (7)  An employer or carrier may not hire a private

18  investigator to follow an injured worker after the 120-day

19  period of investigation allowed by law unless there is clear

20  and convincing evidence of fraud or change in the injured

21  worker's impairment rating by the treating physician. After

22  the 120-day period of investigation after the date of injury

23  allowed by law for the carrier, the Florida Department of Law

24  Enforcement must find some evidence providing a legitimate

25  reason for a private investigator before approval can be

26  obtained to hire a private investigator to follow the injured

27  worker. An investigator may not follow, harass, or tape the

28  injured worker's family members during an investigation.

29         (8)  An employer or carrier is entitled to only those

30  medical records of the injured worker which the treating

31  family physician deems relevant to the on-the-job injury.

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    Florida Senate - 2005                                  SB 2416
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 1  Preexisting conditions may not be considered as long as the

 2  injured worker was able to successfully perform his or her job

 3  at a satisfactory level and was able to meet attendance

 4  requirements by the employer at the time of the injury.

 5         (9)  Financial records of the injured worker's spouse

 6  are exempt from examination by the employer or carrier.

 7         (10)  The employer or carrier may only obtain form

 8  SSA-1099-SM and nothing else from the Social Security Office

 9  for discovery of a workers' compensation case unless the

10  claimant plans to introduce other documentation into evidence

11  from that agency in relation to the workers' compensation

12  case. An employer or carrier may not voluntarily provide

13  medical records to the Social Security Office but, upon

14  request from the Social Security Office, may provide data

15  requested. A copy of any material sent to the Social Security

16  Office by the employer or carrier must be sent to the injured

17  worker and his or her attorney, and the employer or carrier

18  must secure a written release from the injured worker before

19  any record may be released.

20         (12)  A claimant's attorney's fees shall be no more or

21  less restricted than those of the employer or carrier. Each

22  has equal access to counsel, as provided for in the state and

23  United States Constitutions.

24         (12)  Every subpoena must be signed by a judge of

25  compensation claims. An attorney for neither side has

26  authority to issue subpoenas.

27         (13)  All injured workers who are assessed as able to

28  perform some kind of work shall have access to some form of a

29  training program if they are unable to return to their

30  original positions or find a job paying the same salary.

31  

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    Florida Senate - 2005                                  SB 2416
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 1         (14)  An injured worker returning to employment and

 2  making less in salary and benefits than he or she was at the

 3  time of the injury shall be compensated by the employer or

 4  carrier for the difference in salary and benefits.

 5         (15)  Psychological injury or illness, or both, as a

 6  result of the injury or treatment, or both, while in the

 7  workers' compensation system shall be covered. Indemnity

 8  benefits and treatment shall be provided at the same rate as

 9  for any other injury.

10         (16)  Chemical or toxic injury or illness shall be

11  determined relevant to the injury by a physician and not the

12  employer or carrier. Employer records shall be discoverable

13  pertaining to the number of incidents similar to the toxic or

14  chemical injury suspected. This also includes the

15  manufacturers' safety data sheets provided from the

16  manufacturer of any chemical or hazardous substance as well as

17  any handling instructions and ingredients in any suspected

18  chemical or hazardous substance.

19         (17)  Employer records for all injuries shall be

20  discoverable relating to job safety and unlawful termination

21  of injured workers as well as any discrimination or prejudice

22  suspected related to the on-the-job injury.

23         (18)  Employers must adhere to temporary restrictions

24  placed on the injured workers with no exceptions. If an

25  employer fails to employ an injured worker with permanent

26  restrictions, it is the employer's responsibility to pay for

27  retraining, indemnity payments while retraining, and placement

28  of that injured worker.

29         (19)  The employer or carrier shall pay the injured

30  worker indemnity benefits during his or her complete

31  rehabilitation or retraining, or both, in addition to what the

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    Florida Senate - 2005                                  SB 2416
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 1  injured worker receives from the state trust fund for

 2  schooling and books as long as an agent assessment from the

 3  Bureau of Reeducation and Rehabilitation Services approves the

 4  retraining as an option for the injured worker.

 5         (20)  The employer shall provide the injured worker and

 6  his or her family with health insurance benefits at the same

 7  cost that was normally taken out of the employee's paycheck

 8  for whatever insurance the employee had at the time of injury,

 9  as opposed to the total cost the employer pays monthly for

10  such insurance.

11         (21)  Medical benefits may not be settled out at any

12  time.

13         (22)  Supplemental benefits for permanent total

14  disability shall continue until death. Permanent total

15  benefits shall continue until death.

16         (23)  The employer or carrier may not cut off benefits

17  for those on permanent total disability before a hearing with

18  the judge of compensation claims. The employer or carrier may

19  not reopen a case years after the injury without clear and

20  convincing evidence of fraud or a change in the medical status

21  by the treating physician.

22         (24)  Claimants' attorneys are not entitled to any

23  money over and above the amount the judge of compensation

24  claims determines to be fees and costs. Claimants' attorneys

25  may not force injured workers to have the workers' regular

26  checks come to the attorneys or charge a handling fee for

27  claimant checks that come to the attorneys. Money may not be

28  held out of an injured worker's check without his or her

29  expressed written and contractual agreement.

30         (25)  All workers' compensation adjusters must be

31  certified yearly. Training courses for adjusters shall be set

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 1  up by the Department of Financial Services for all adjusters

 2  and must be taken yearly to obtain certification.

 3         (26)  An adjuster may not deny any treatment or

 4  prescription ordered by a treating physician without

 5  authorization from a physician on staff for the insurance

 6  company. If an adjuster denies treatment without authorization

 7  from a staff physician, then he or she as well as the

 8  insurance company is liable in a civil action if any damage or

 9  exacerbation of the injury results from the denial. An

10  adjuster may not practice medicine without a license.

11         (27)  Overpayments of indemnity or supplemental

12  benefits, or both, as a result of a miscalculation by the

13  carrier may not be repaid by the injured worker. If there is

14  an overpayment, the carrier may adjust the injured worker's

15  pay accordingly but may not recoup the loss that results from

16  its own error. Any reduction in pay or benefits must be

17  approved by the Department of Financial Services before the

18  reduction can be made.

19         (28)  Once an injured worker reports additional income,

20  such as social security disability or supplemental security

21  income or any other payment required to be reported to the

22  carrier which allows the carrier an offset, the offset must be

23  calculated upon receipt of the notification. If the carrier

24  fails to assess the offset, the injured worker is not required

25  to repay any amount of overpayment received as a result of the

26  carrier's failure to correctly figure that offset in a speedy

27  fashion.

28         (29)  A person conducting a peer review of physicians

29  or treatments must speak with all treating physicians before

30  making a decision from the peer review board. Those on the

31  board also must review all medical records provided by the

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 1  injured worker, the injured worker's attorney, and the

 2  employer or carrier and the employer's or carrier's attorney,

 3  if any. The board also must have a telephone conference with

 4  the injured worker before it makes any findings. All members

 5  of the board must be present during any conversation with the

 6  injured worker and his or her treating physicians.

 7         (30)  A clause may not be either contained in or added

 8  to a settlement agreement which requires an injured worker to

 9  resign his or her position as part of that agreement.

10         (31)  A health care provider may not bill a claimant

11  for a workers' compensation injury, but must collect the money

12  from the employer or carrier. The judges of compensation

13  claims have jurisdiction to issue a stay in any attempt to

14  obtain payment of a bill that is in dispute until the dispute

15  is resolved or a bill that is unquestionably workers'

16  compensation. An attempt to collect a bill either by the

17  provider or a collection agency before the issue is resolved

18  is unlawful and may result in fines or criminal charges, or

19  both, against the provider.

20         (32)  When the carrier is providing records to any

21  party, physician, attorney, the Department of Financial

22  Services, or any other agency, it must provide all current

23  medical records and information. A copy of these records,

24  along with any communication with these parties, must be sent

25  to the injured worker and to his or her attorney before these

26  records may be sent and before any independent medical

27  examination or referral physician's appointment may be set.

28         (33)  The carrier, the carrier's attorney, and the

29  adjuster may not give their personal opinion in an effort to

30  influence the physician in any way. None of them may suggest

31  anything to the physician that may affect the outcome of the

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 1  appointment. The physician shall make his or her opinion known

 2  based on the medical records and interview with the injured

 3  worker.

 4         Section 2.  Subsection (3) of section 440.34, Florida

 5  Statutes, is amended to read:

 6         440.34  Attorney's fees; costs.--

 7         (3)  If any party should prevail in any proceedings

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

 9  taxed against the nonprevailing party the reasonable costs of

10  such proceedings, not to include attorney's fees. A claimant

11  shall be responsible for the payment of her or his own

12  attorney's fees, except that a claimant shall be entitled to

13  recover a reasonable attorney's fee from a carrier or

14  employer:

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

16  petition for medical benefits only, if the claimant has not

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

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

19  benefits, arising out of the same accident;

20         (b)  In cases in which the judge of compensation claims

21  issues an order finding that a carrier has acted in bad faith

22  with regard to handling an injured worker's claim and the

23  injured worker has suffered economic loss. For the purposes of

24  this paragraph, the term "bad faith" means conduct by the

25  carrier in the handling of a claim which amounts to fraud;

26  malice; oppression; or willful, wanton, or reckless disregard

27  of the rights of the claimant. Any determination of bad faith

28  shall be made by the judge of compensation claims through a

29  separate factfinding proceeding. The judge of compensation

30  claims shall issue a separate order that shall expressly state

31  the specific findings of fact upon which the determination of

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    Florida Senate - 2005                                  SB 2416
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 1  bad faith is based In any case in which the employer or

 2  carrier files a response to petition denying benefits with the

 3  Office of the Judges of Compensation Claims and the injured

 4  person has employed an attorney in the successful prosecution

 5  of the 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.

17         Section 3.  This act shall take effect July 1, 2005.

18  

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20                          SENATE SUMMARY

21    Revises or creates a broad variety of provisions relating
      to workers' compensation. (See bill for details.)
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