HB 0035

1
A bill to be entitled
2An act relating to workers' compensation for first
3responders; amending s. 440.02, F.S.; revising and
4providing definitions; amending s. 440.09, F.S.; revising
5provisions relating to compensation for occupational
6diseases and repetitive exposure to provide an exception
7for first responders; amending s. 440.091, F.S.; providing
8that certain conditions relating to smallpox vaccinations
9are an injury by accident arising out of the employment
10for purposes of ch. 440, F.S.; amending s. 440.093, F.S.;
11providing conditions for compensation for first responders
12for cases involving mental or nervous injuries; providing
13additional conditions for payment of indemnity benefits
14under ch. 440, F.S.; providing an exception with regard to
15determination of mental and nervous injuries; amending s.
16440.15, F.S.; providing an additional exception with
17regard to compensation for permanent total disability;
18amending s. 440.151, F.S.; providing an exception with
19regard to compensation for occupational diseases; amending
20s. 440.34, F.S.; providing factors to be considered by a
21judge of compensation claims in awarding attorney's fees
22and costs in cases involving first responders; providing
23an effective date.
24
25Be It Enacted by the Legislature of the State of Florida:
26
27     Section 1.  Subsection (1) of section 440.02, Florida
28Statutes, is amended, and subsection (42) is added to said
29section, to read:
30     440.02  Definitions.--When used in this chapter, unless the
31context clearly requires otherwise, the following terms shall
32have the following meanings:
33     (1)  "Accident" means only an unexpected or unusual event
34or result that happens suddenly. Disability or death due to the
35accidental acceleration or aggravation of a venereal disease or
36of a disease due to the habitual use of alcohol or controlled
37substances or narcotic drugs, or a disease that manifests itself
38in the fear of or dislike for an individual because of the
39individual's race, color, religion, sex, national origin, age,
40or handicap is not an injury by accident arising out of the
41employment. Subject to s. 440.15(5), if a preexisting disease or
42anomaly is accelerated or aggravated by an accident arising out
43of and in the course of employment, only acceleration of death
44or acceleration or aggravation of the preexisting condition
45reasonably attributable to the accident is compensable, with
46respect to any compensation otherwise payable under this
47chapter. Except for cases involving a first responder, an injury
48or disease caused by exposure to a toxic substance, including,
49but not limited to, fungus or mold, is not an injury by accident
50arising out of the employment unless there is clear and
51convincing evidence establishing that exposure to the specific
52substance involved, at the levels to which the employee was
53exposed, can cause the injury or disease sustained by the
54employee.
55     (42)  "First responder" means a law enforcement officer as
56defined in s. 943.10, a firefighter as defined in s. 633.30, and
57an emergency medical technician or a paramedic as defined in s.
58401.23 employed by state or local government. A volunteer
59firefighter engaged by state or local government is also
60considered a first responder for purposes of this chapter.
61     Section 2.  Subsection (1) of section 440.09, Florida
62Statutes, is amended to read:
63     440.09  Coverage.--
64     (1)  The employer must pay compensation or furnish benefits
65required by this chapter if the employee suffers an accidental
66compensable injury or death arising out of work performed in the
67course and the scope of employment. The injury, its occupational
68cause, and any resulting manifestations or disability must be
69established to a reasonable degree of medical certainty, based
70on objective relevant medical findings, and the accidental
71compensable injury must be the major contributing cause of any
72resulting injuries. For purposes of this section, "major
73contributing cause" means the cause which is more than 50
74percent responsible for the injury as compared to all other
75causes combined for which treatment or benefits are sought.
76Except for cases involving a first responder, in cases involving
77occupational disease or repetitive exposure, both causation and
78sufficient exposure to support causation must be proven by clear
79and convincing evidence. Pain or other subjective complaints
80alone, in the absence of objective relevant medical findings,
81are not compensable. For purposes of this section, "objective
82relevant medical findings" are those objective findings that
83correlate to the subjective complaints of the injured employee
84and are confirmed by physical examination findings or diagnostic
85testing. Establishment of the causal relationship between a
86compensable accident and injuries for conditions that are not
87readily observable must be by medical evidence only, as
88demonstrated by physical examination findings or diagnostic
89testing. Major contributing cause must be demonstrated by
90medical evidence only.
91     (a)  This chapter does not require any compensation or
92benefits for any subsequent injury the employee suffers as a
93result of an original injury arising out of and in the course of
94employment unless the original injury is the major contributing
95cause of the subsequent injury. Major contributing cause must be
96demonstrated by medical evidence only.
97     (b)  If an injury arising out of and in the course of
98employment combines with a preexisting disease or condition to
99cause or prolong disability or need for treatment, the employer
100must pay compensation or benefits required by this chapter only
101to the extent that the injury arising out of and in the course
102of employment is and remains more than 50 percent responsible
103for the injury as compared to all other causes combined and
104thereafter remains the major contributing cause of the
105disability or need for treatment. Major contributing cause must
106be demonstrated by medical evidence only.
107     (c)  Death resulting from an operation by a surgeon
108furnished by the employer for the cure of hernia as required in
109s. 440.15(6) [F.S. 1981] shall for the purpose of this chapter
110be considered to be a death resulting from the accident causing
111the hernia.
112     (d)  If an accident happens while the employee is employed
113elsewhere than in this state, which would entitle the employee
114or his or her dependents to compensation if it had happened in
115this state, the employee or his or her dependents are entitled
116to compensation if the contract of employment was made in this
117state, or the employment was principally localized in this
118state. However, if an employee receives compensation or damages
119under the laws of any other state, the total compensation for
120the injury may not be greater than is provided in this chapter.
121     Section 3.  Subsection (4) is added to section 440.091,
122Florida Statutes, to read:
123     440.091  Law enforcement officer, firefighter, emergency
124medical technician, or paramedic; when acting within the course
125of employment.--
126     (4)  Any adverse result or complication related to a
127smallpox vaccination of a first responder shall be deemed to be
128an injury by accident arising out of work performed in the
129course and the scope of employment.
130     Section 4.  Subsections (1) and (2) of section 440.093,
131Florida Statutes, are amended to read:
132     440.093  Mental and nervous injuries.--
133     (1)  A mental or nervous injury due to stress, fright, or
134excitement only is not an injury by accident arising out of the
135employment. Except for cases involving a first responder,
136nothing in this section shall be construed to allow for the
137payment of benefits under this chapter for mental or nervous
138injuries without an accompanying physical injury requiring
139medical treatment. A physical injury resulting from mental or
140nervous injuries unaccompanied by physical trauma requiring
141medical treatment shall not be compensable under this chapter,
142unless the physical injury is to a first responder. For cases
143involving a first responder, payment of medical benefits under
144this chapter for mental or nervous injuries shall be made even
145if the first responder's mental or nervous injury is
146unaccompanied by a physical injury. However, for cases involving
147a first responder, payment of indemnity benefits under this
148chapter for mental and nervous injuries shall not be made unless
149a physical injury accompanies the mental or nervous injury.
150     (2)  Except for cases involving a first responder, mental
151or nervous injuries occurring as a manifestation of an injury
152compensable under this chapter shall be demonstrated by clear
153and convincing medical evidence by a licensed psychiatrist
154meeting criteria established in the most recent edition of the
155diagnostic and statistical manual of mental disorders published
156by the American Psychiatric Association. The compensable
157physical injury must be and remain the major contributing cause
158of the mental or nervous condition and the compensable physical
159injury as determined by reasonable medical certainty must be at
160least 50 percent responsible for the mental or nervous condition
161as compared to all other contributing causes combined.
162Compensation is not payable for the mental, psychological, or
163emotional injury arising out of depression from being out of
164work or losing employment opportunities, resulting from a
165preexisting mental, psychological, or emotional condition or due
166to pain or other subjective complaints that cannot be
167substantiated by objective, relevant medical findings.
168     Section 5.  Paragraph (f) of subsection (1) of section
169440.15, Florida Statutes, is amended to read:
170     440.15  Compensation for disability.--Compensation for
171disability shall be paid to the employee, subject to the limits
172provided in s. 440.12(2), as follows:
173     (1)  PERMANENT TOTAL DISABILITY.--
174     (f)1.  If permanent total disability results from injuries
175that occurred subsequent to June 30, 1955, and for which the
176liability of the employer for compensation has not been
177discharged under s. 440.20(11), the injured employee shall
178receive additional weekly compensation benefits equal to 3
179percent of her or his weekly compensation rate, as established
180pursuant to the law in effect on the date of her or his injury,
181multiplied by the number of calendar years since the date of
182injury. The weekly compensation payable and the additional
183benefits payable under this paragraph, when combined, may not
184exceed the maximum weekly compensation rate in effect at the
185time of payment as determined pursuant to s. 440.12(2). These
186supplemental payments shall not be paid or payable after the
187employee attains age 62, regardless of whether the employee has
188applied for or is eligible to apply for social security benefits
189under 42 U.S.C. s. 402 or s. 423, unless the employee is not
190eligible for social security benefits under 42 U.S.C. s. 402 or
191s. 423 either because the employee's compensable injury has
192prevented the employee from working sufficient quarters to be
193eligible for such benefits or, in cases involving a first
194responder, the employer does not participate in the social
195security program. These supplemental benefits shall be paid by
196the department out of the Workers' Compensation Administration
197Trust Fund when the injury occurred subsequent to June 30, 1955,
198and before July 1, 1984. These supplemental benefits shall be
199paid by the employer when the injury occurred on or after July
2001, 1984. Supplemental benefits are not payable for any period
201prior to October 1, 1974.
202     2.a.  The department shall provide by rule for the periodic
203reporting to the department of all earnings of any nature and
204social security income by the injured employee entitled to or
205claiming additional compensation under subparagraph 1. Neither
206the department nor the employer or carrier shall make any
207payment of those additional benefits provided by subparagraph 1.
208for any period during which the employee willfully fails or
209refuses to report upon request by the department in the manner
210prescribed by such rules.
211     b.  The department shall provide by rule for the periodic
212reporting to the employer or carrier of all earnings of any
213nature and social security income by the injured employee
214entitled to or claiming benefits for permanent total disability.
215The employer or carrier is not required to make any payment of
216benefits for permanent total disability for any period during
217which the employee willfully fails or refuses to report upon
218request by the employer or carrier in the manner prescribed by
219such rules or if any employee who is receiving permanent total
220disability benefits refuses to apply for or cooperate with the
221employer or carrier in applying for social security benefits.
222     3.  When an injured employee receives a full or partial
223lump-sum advance of the employee's permanent total disability
224compensation benefits, the employee's benefits under this
225paragraph shall be computed on the employee's weekly
226compensation 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
231provisions of the Workers' Compensation Law, the disablement or
232death of an employee resulting from an occupational disease as
233hereinafter defined shall be treated as the happening of an
234injury by accident, notwithstanding any other provisions of this
235chapter, and the employee or, in case of death, the employee's
236dependents shall be entitled to compensation as provided by this
237chapter, except as hereinafter otherwise provided; and the
238practice and procedure prescribed by this chapter shall apply to
239all proceedings under this section, except as hereinafter
240otherwise provided. Provided, however, that in no case shall an
241employer be liable for compensation under the provisions of this
242section unless such disease has resulted from the nature of the
243employment in which the employee was engaged under such employer
244and, was actually contracted while so engaged, and the nature of
245the employment was the major contributing cause of the disease.
246Major contributing cause must be shown by medical evidence only,
247as demonstrated by physical examination findings and diagnostic
248testing. "Nature of the employment" means that in the occupation
249in which the employee was so engaged there is attached a
250particular hazard of such disease that distinguishes it from the
251usual run of occupations, or the incidence of such disease is
252substantially higher in the occupation in which the employee was
253so engaged than in the usual run of occupations. In claims for
254death under s. 440.16, death must occur within 350 weeks after
255last exposure. Except for cases involving a first responder,
256both causation and sufficient exposure to a specific harmful
257substance shown to be present in the workplace to support
258causation shall be proven by clear and convincing evidence.
259     (2)  Whenever used in this section the term "occupational
260disease" shall be construed to mean only a disease which is due
261to causes and conditions which are characteristic of and
262peculiar to a particular trade, occupation, process, or
263employment, and to exclude all ordinary diseases of life to
264which the general public is exposed, unless the incidence of the
265disease is substantially higher in the particular trade,
266occupation, process, or employment than for the general public.
267Except for cases involving a first responder, "occupational
268disease" means only a disease for which there are
269epidemiological studies showing that exposure to the specific
270substance involved, at the levels to which the employee was
271exposed, may cause the precise disease sustained by the
272employee.
273     Section 7.  Subsections (1) and (7) of section 440.34,
274Florida Statutes, are amended to read:
275     440.34  Attorney's fees; costs.--
276     (1)  A fee, gratuity, or other consideration may not be
277paid for a claimant in connection with any proceedings arising
278under this chapter, unless approved as reasonable by the judge
279of compensation claims or court having jurisdiction over such
280proceedings. Any attorney's fee approved by a judge of
281compensation claims for benefits secured on behalf of a claimant
282must equal to 20 percent of the first $5,000 of the amount of
283the benefits secured, 15 percent of the next $5,000 of the
284amount of the benefits secured, 10 percent of the remaining
285amount of the benefits secured to be provided during the first
28610 years after the date the claim is filed, and 5 percent of the
287benefits secured after 10 years. The judge of compensation
288claims shall not approve a compensation order, a joint
289stipulation for lump-sum settlement, a stipulation or agreement
290between a claimant and his or her attorney, or any other
291agreement related to benefits under this chapter that provides
292for an attorney's fee in excess of the amount permitted by this
293section. The judge of compensation claims is not required to
294approve any retainer agreement between the claimant and his or
295her attorney. The retainer agreement as to fees and costs may
296not be for compensation in excess of the amount allowed under
297this section. However, for cases involving a first responder
298with an alleged exposure to toxic substances or occupational
299disease claim, the judge of compensation claims shall consider
300the following factors in each case and may increase or decrease
301the attorney's fee if, in his or her judgment, the circumstances
302of the particular case warrant such action:
303     (a)  The time and labor required, the novelty and
304difficulty of the questions involved, and the skill required to
305perform the legal service properly.
306     (b)  The fee customarily charged in the locality for
307similar legal services.
308     (c)  The amount involved in the controversy and the
309benefits payable to the claimant.
310     (d)  The time limitations imposed by the claimant or the
311circumstances.
312     (e)  The experience, reputation, and ability of the
313attorney or attorneys performing services.
314     (f)  The contingency or certainty of a fee.
315     (7)  Except for cases involving a first responder with an
316alleged exposure to toxic substances or occupational disease
317claim, if an attorney's fee is owed under paragraph (3)(a), the
318judge of compensation claims may approve an alternative
319attorney's fee not to exceed $1,500 only once per accident,
320based on a maximum hourly rate of $150 per hour, if the judge of
321compensation claims expressly finds that the attorney's fee
322amount provided for in subsection (1), based on benefits
323secured, fails to fairly compensate the attorney for disputed
324medical-only claims as provided in paragraph (3)(a) and the
325circumstances of the particular case warrant such action.
326     Section 8.  This act shall take effect upon becoming a law.


CODING: Words stricken are deletions; words underlined are additions.