HB 1489

1	A bill to be entitled
2	An act relating to workers' compensation; amending s.
3	440.105, F.S.; decriminalizing receipt of an attorney's
4	fee that has not been approved by a judge of compensation
5	claims; amending s. 440.20, F.S.; limiting the scope of a
6	judge of compensation claims' authority to approve
7	settlement agreements; revising provisions relating to
8	attorney's fees; amending s. 440.25, F.S.; revising
9	procedures, requirements, and timeframes for mediation,
10	pretrial hearings, and expedited hearings; amending s.
11	440.32, F.S.; revising provisions relating to assessment
12	of penalties for maintaining or continuing a proceeding
13	frivolously; amending s. 440.34, F.S.; revising attorney's
14	fee provisions; requiring judicial approval of certain
15	fees paid by a carrier or employer; deleting a limitation
16	on retainer agreements and provisions relating to approval
17	of certain attorney's fees; specifying that nothing in the
18	chapter shall impair a claimant's right to contract for
19	representation; amending s. 440.45, F.S.; correcting a
20	cross-reference; amending s. 440.491, F.S.; providing that
21	weeks of certain training and education benefits are in
22	addition to the available weeks of temporary total
23	disability benefits for the purpose of benefit
24	calculations; providing an effective date.
25
26	Be It Enacted by the Legislature of the State of Florida:
27
28	Section 1.  Paragraph (c) of subsection (3) of section
29	440.105, Florida Statutes, is amended to read:
30	440.105  Prohibited activities; reports; penalties;
31	limitations.--
32	(3)  Whoever violates any provision of this subsection
33	commits a misdemeanor of the first degree, punishable as
34	provided in s. 775.082 or s. 775.083.
35	(c)  It is unlawful for any attorney or other person, in
36	his or her individual capacity or in his or her capacity as a
37	public or private employee, or for any firm, corporation,
38	partnership, or association to receive any fee or other
39	consideration or any gratuity from a person on account of
40	services rendered for a person in connection with any
41	proceedings arising under this chapter, unless such fee,
42	consideration, or gratuity is approved by a judge of
43	compensation claims or by the Deputy Chief Judge of Compensation
44	Claims.
45	Section 2.  Paragraph (c) of subsection (11) of section
46	440.20, Florida Statutes, is amended to read:
47	440.20  Time for payment of compensation and medical bills;
48	penalties for late payment.--
49	(11)
50	(c)  Notwithstanding s. 440.21(2), when a claimant is
51	represented by counsel, the claimant may waive all rights to any
52	and all benefits under this chapter by entering into a
53	settlement agreement releasing the employer and the carrier from
54	liability for workers' compensation benefits in exchange for a
55	lump-sum payment to the claimant. The settlement agreement
56	requires approval by the judge of compensation claims only as to
57	any child support arrearage the attorney's fees paid to the
58	claimant's attorney by the claimant. The parties need not submit
59	any information or documentation in support of the settlement,
60	except as needed to justify the amount of the attorney's fees.
61	Neither the employer nor the carrier is responsible for any
62	attorney's fees relating to the settlement and release of claims
63	under this section, and such attorney's fees shall not be
64	subject to the provisions of s. 440.34. Payment of the lump-sum
65	settlement amount must be made within 14 days after the date the
66	judge of compensation claims mails the order approving payment
67	from the settlement of a sum, if any, to satisfy a child support
68	arrearage the attorney's fees. Any order entered by a judge of
69	compensation claims approving the attorney's fees as set out in
70	the settlement under this subsection is not considered to be an
71	award and is not subject to modification or review. The judge of
72	compensation claims shall report these settlements to the Deputy
73	Chief Judge in accordance with the requirements set forth in
74	paragraphs (a) and (b). Settlements entered into under this
75	subsection are valid and apply to all dates of accident.
76	Section 3.  Subsection (1), paragraph (b) of subsection
77	(3), and paragraphs (a), (b), and (h) of subsection (4) of
78	section 440.25, Florida Statutes, are amended to read:
79	440.25  Procedures for mediation and hearings.--
80	(1)  Not later than 40 Forty days after a petition for
81	benefits is filed under s. 440.192, the judge of compensation
82	claims shall schedule a mediation conference and issue an order
83	notifying notify the interested parties by order that a
84	mediation conference concerning such petition has been scheduled
85	unless the parties have notified the judge of compensation
86	claims that a private mediation has been held or is scheduled to
87	be held. A mediation, whether private or public, shall be held
88	within 130 days after the filing of the petition. The parties
89	may substitute a private mediation for the mediation noticed by
90	the court with 10 days' advance notice to the court, provided
91	the private mediation occurs within the 130-day period Such
92	order must give the date the mediation conference is to be held.
93	Such order may be served personally upon the interested parties
94	or may be sent to the interested parties by mail. If multiple
95	petitions are pending, or if additional petitions are filed
96	prior to the after the scheduling of a mediation, such petitions
97	shall be consolidated the judge of compensation claims shall
98	consolidate all petitions into the one mediation. A The claimant
99	or the adjuster of the employer or carrier who resides outside
100	the district in which the mediation is to be held may, at the
101	mediator's discretion, attend the mediation conference by
102	telephone or, if agreed to by the parties, other electronic
103	means. A continuance may be granted upon the agreement of the
104	parties or if the requesting party demonstrates to the judge of
105	compensation claims that the reason for requesting the
106	continuance arises from circumstances beyond the party's
107	control. Any order granting a continuance must set forth the
108	date of the rescheduled mediation conference. A mediation
109	conference may not be used solely for the purpose of mediating
110	attorney's fees.
111	(3)  Such mediation conference shall be conducted
112	informally and does not require the use of formal rules of
113	evidence or procedure. Any information from the files, reports,
114	case summaries, mediator's notes, or other communications or
115	materials, oral or written, relating to a mediation conference
116	under this section obtained by any person performing mediation
117	duties is privileged and confidential and may not be disclosed
118	without the written consent of all parties to the conference.
119	Any research or evaluation effort directed at assessing the
120	mediation program activities or performance must protect the
121	confidentiality of such information. Each party to a mediation
122	conference has a privilege during and after the conference to
123	refuse to disclose and to prevent another from disclosing
124	communications made during the conference whether or not the
125	contested issues are successfully resolved. This subsection and
126	paragraphs (4)(a) and (b) shall not be construed to prevent or
127	inhibit the discovery or admissibility of any information that
128	is otherwise subject to discovery or that is admissible under
129	applicable law or rule of procedure, except that any conduct or
130	statements made during a mediation conference or in negotiations
131	concerning the conference are inadmissible in any proceeding
132	under this chapter.
133	(b)  With respect to any private mediation, if the parties
134	agree or If mediators are not available under paragraph (a),
135	pursuant to notice from the judge of compensation claims, to
136	conduct the required mediation within the period specified in
137	this section, the parties shall hold a mediation conference at
138	the carrier's expense within the 130-day period set for
139	mediation. The mediation conference shall be conducted by a
140	mediator certified under s. 44.106. If the parties do not agree
141	upon a mediator within 10 days after the date of the order, the
142	claimant shall notify the judge in writing and the judge shall
143	appoint a mediator under this paragraph within 7 days. In the
144	event both parties agree, the results of the mediation
145	conference shall be binding and neither party shall have a right
146	to appeal the results. In the event either party refuses to
147	agree to the results of the mediation conference, the results of
148	the mediation conference as well as the testimony, witnesses,
149	and evidence presented at the conference shall not be admissible
150	at any subsequent proceeding on the claim. The mediator shall
151	not be called in to testify or give deposition to resolve any
152	claim for any hearing before the judge of compensation claims.
153	The employer may be represented by an attorney at the mediation
154	conference if the employee is also represented by an attorney at
155	the mediation conference.
156	(4)(a)  If the parties fail to agree to written submission
157	of pretrial stipulations, the judge of compensation claims shall
158	conduct a live pretrial hearing. The judge of compensation
159	claims shall give the interested parties at least 14 days'
160	advance notice of the pretrial hearing by mail.
161	(b)  The final hearing must be held and concluded within 90
162	days after the mediation conference is held, allowing the
163	parties sufficient time to complete discovery. With the consent
164	of all parties, a party shall be entitled to one continuance of
165	a final hearing provided a proper motion for continuance is
166	filed with the judge of compensation claims at least 7 days
167	prior to the scheduled hearing. All other or additional Except
168	as set forth in this section, continuances may be granted only
169	if the requesting party demonstrates to the judge of
170	compensation claims that the reason for requesting the
171	continuance arises from circumstances beyond the party's
172	control. The written consent of the claimant or employer must be
173	obtained before any request from a claimant's attorney is
174	granted for an additional continuance after the initial
175	continuance has been granted. Any order granting a continuance
176	must set forth the date and time of the rescheduled hearing. A
177	continuance may be granted only if the requesting party
178	demonstrates to the judge of compensation claims that the reason
179	for requesting the continuance arises from circumstances beyond
180	the control of the parties. The judge of compensation claims
181	shall report any grant of two or more continuances to the Deputy
182	Chief Judge.
183	(h)  To further expedite dispute resolution and to enhance
184	the self-executing features of the system, those petitions filed
185	in accordance with s. 440.192 that involve a claim for benefits
186	of $5,000 or less shall, in the absence of compelling evidence
187	to the contrary, be presumed to be appropriate for expedited
188	resolution under this paragraph; and any other petition claim
189	filed in accordance with s. 440.192, upon the written agreement
190	of both parties and application by either party, may similarly
191	be resolved under this paragraph. A claim in a petition of
192	$5,000 or less for medical benefits only or a petition for
193	reimbursement for mileage for medical purposes shall, in the
194	absence of compelling evidence to the contrary, be resolved
195	through the expedited dispute resolution process provided in
196	this paragraph. For purposes of expedited resolution pursuant to
197	this paragraph, the Deputy Chief Judge shall make provision by
198	rule or order for expedited and limited discovery and expedited
199	docketing in such cases. At least 15 days prior to hearing, the
200	parties shall exchange and file with the judge of compensation
201	claims a pretrial outline of all issues, defenses, and witnesses
202	on a form adopted by the Deputy Chief Judge; provided, in no
203	event shall such hearing be held without 15 days' written notice
204	to all parties. No pretrial hearing shall be held and no
205	mediation scheduled unless requested by a party. The judge of
206	compensation claims shall limit the all argument and
207	presentation of evidence at the hearing to a maximum of 30
208	minutes per party, and such hearings shall not exceed 30 minutes
209	in length. Neither party shall be required to be represented by
210	counsel. The employer or carrier may be represented by an
211	adjuster or other qualified representative. The employer or
212	carrier and any witness may appear at such hearing by telephone.
213	The rules of evidence shall be liberally construed in favor of
214	allowing introduction of evidence.
215	Section 4.  Subsection (2) of section 440.32, Florida
216	Statutes, is amended to read:
217	440.32  Cost in proceedings brought without reasonable
218	ground.--
219	(2)  If the judge of compensation claims or any court
220	having jurisdiction of proceedings in respect to any claims or
221	defense under this section determines that the proceedings were
222	maintained or continued frivolously, the cost of the
223	proceedings, including reasonable attorney's fees, shall be
224	assessed against the offending party or attorney. If a penalty
225	is assessed under this subsection, a copy of the order assessing
226	the penalty must be forwarded to the appropriate grievance
227	committee acting under the jurisdiction of the Supreme Court.
228	Penalties, fees, and costs awarded against an attorney under
229	this provision may not be recouped from the party.
230	Section 5.  Section 440.34, Florida Statutes, is amended to
231	read:
232	440.34  Attorney's fees; costs.--
233	(1)  A claimant shall be responsible for the payment of her
234	or his own attorney's fees, except that she or he shall be
235	entitled to recover an attorney's fee payable by a carrier or
236	employer in any proceeding in which:
237	(a)  The claimant employed an attorney in the successful
238	prosecution of a petition for benefits seeking temporary,
239	impairment, or permanent disability benefits or medical
240	benefits;
241	(b)  The carrier or employer denied that an accident for
242	which compensation benefits are payable under this chapter
243	occurred, and the claimant prevailed on the issue of
244	compensability; or
245	(c)  The claimant successfully prevailed in a proceeding
246	filed under s. 440.24 or s. 440.28.
247
248	Regardless of the date benefits are initially requested, an
249	employer's or carrier's liability for attorney's fees under this
250	subsection shall not attach until 30 days after the date the
251	carrier or employer, if self-insured, receives the petition for
252	benefits. If a carrier or employer furnishes the benefits
253	claimed in a petition for benefits more than 30 days, but within
254	90 days, after the filing of the petition for benefits, the
255	attorney's fees a carrier or employer is obligated to pay under
256	this subsection shall be equal to 25 percent of the value of the
257	benefits secured. If a carrier or employer furnishes or is
258	ordered to furnish the benefits claimed in a petition for
259	benefits more than 90 days after the filing of the petition, the
260	attorney's fees a carrier or employer is obligated to pay under
261	this subsection shall be a reasonable attorney's fee as
262	determined by the judge of compensation claims.
263	(2)  A fee, gratuity, or other consideration may not be
264	paid by a carrier or employer for a claimant pursuant to
265	subsection (1) in connection with any proceedings arising under
266	this chapter, unless approved as reasonable by the judge of
267	compensation claims or court having jurisdiction over such
268	proceedings. Any attorney's fee approved by a judge of
269	compensation claims for benefits secured on behalf of a claimant
270	must equal to 20 percent of the first $5,000 of the amount of
271	the benefits secured, 15 percent of the next $5,000 of the
272	amount of the benefits secured, 10 percent of the remaining
273	amount of the benefits secured to be provided during the first
274	10 years after the date the claim is filed, and 5 percent of the
275	benefits secured after 10 years. The judge of compensation
276	claims shall not approve a compensation order, a joint
277	stipulation for lump-sum settlement, a stipulation or agreement
278	between a claimant and his or her attorney, or any other
279	agreement related to benefits under this chapter that provides
280	for an attorney's fee in excess of the amount permitted by this
281	section. The judge of compensation claims is not required to
282	approve any retainer agreement between the claimant and his or
283	her attorney. The retainer agreement as to fees and costs may
284	not be for compensation in excess of the amount allowed under
285	this section.
286	(3)(2)  In awarding a claimant's attorney's fee, the judge
287	of compensation claims shall consider only those benefits
288	secured by the attorney. An attorney is not entitled to
289	attorney's fees for representation in any issue that was ripe,
290	due, and owing and that reasonably could have been addressed,
291	but was not addressed, during the pendency of other issues for
292	the same injury. The amount, statutory basis, and type of
293	benefits obtained through legal representation shall be listed
294	on all attorney's fees awarded by the judge of compensation
295	claims. For purposes of this section, the term "benefits
296	secured" does not include future medical benefits to be provided
297	on any date more than 5 years after the date the claim is filed.
298	In the event an offer to settle an issue pending before a judge
299	of compensation claims, including attorney's fees as provided
300	for in this section, is communicated in writing to the claimant
301	or the claimant's attorney at least 30 days prior to the trial
302	date on such issue, for purposes of calculating the amount of
303	attorney's fees to be taxed against the employer or carrier, the
304	term "benefits secured" shall be deemed to include only that
305	amount awarded to the claimant above the amount specified in the
306	offer to settle. If multiple issues are pending before the judge
307	of compensation claims, said offer of settlement shall address
308	each issue pending and shall state explicitly whether or not the
309	offer on each issue is severable. The written offer shall also
310	unequivocally state whether or not it includes medical witness
311	fees and expenses and all other costs associated with the claim.
312	(4)(3)  If any party should prevail in any proceedings
313	before a judge of compensation claims or court, there shall be
314	taxed against the nonprevailing party the reasonable costs of
315	such proceedings, not to include attorney's fees. A claimant
316	shall be responsible for the payment of her or his own
317	attorney's fees, except that a claimant shall be entitled to
318	recover a reasonable attorney's fee from a carrier or employer:
319	(a)  Against whom she or he successfully asserts a petition
320	for medical benefits only, if the claimant has not filed or is
321	not entitled to file at such time a claim for disability,
322	permanent impairment, wage-loss, or death benefits, arising out
323	of the same accident;
324	(b)  In any case in which the employer or carrier files a
325	response to petition denying benefits with the Office of the
326	Judges of Compensation Claims and the injured person has
327	employed an attorney in the successful prosecution of the
328	petition;
329	(c)  In a proceeding in which a carrier or employer denies
330	that an accident occurred for which compensation benefits are
331	payable, and the claimant prevails on the issue of
332	compensability; or
333	(d)  In cases where the claimant successfully prevails in
334	proceedings filed under s. 440.24 or s. 440.28.
335
336	Regardless of the date benefits were initially requested,
337	attorney's fees shall not attach under this subsection until 30
338	days after the date the carrier or employer, if self-insured,
339	receives the petition.
340	(5)(4)  In such cases in which the claimant is responsible
341	for the payment of her or his own attorney's fees, such fees are
342	a lien upon compensation payable to the claimant,
343	notwithstanding s. 440.22.
344	(6)(5)  If any proceedings are had for review of any claim,
345	award, or compensation order before any court, the court may
346	award the injured employee or dependent an attorney's fee to be
347	paid by the employer or carrier, in its discretion, which shall
348	be paid as the court may direct.
349	(7)(6)  A judge of compensation claims may not enter an
350	order approving the contents of a retainer agreement that
351	permits the escrowing of any portion of the employee's
352	compensation until benefits have been secured.
353	(8)  Nothing in this chapter shall impair the right of a
354	claimant to contract with an attorney for representation in
355	connection with a claim under this chapter.
356	(7)  If an attorney's fee is owed under paragraph (3)(a),
357	the judge of compensation claims may approve an alternative
358	attorney's fee not to exceed $1,500 only once per accident,
359	based on a maximum hourly rate of $150 per hour, if the judge of
360	compensation claims expressly finds that the attorney's fee
361	amount provided for in subsection (1), based on benefits
362	secured, fails to fairly compensate the attorney for disputed
363	medical-only claims as provided in paragraph (3)(a) and the
364	circumstances of the particular case warrant such action.
365	Section 6.  Paragraph (c) of subsection (2) of section
366	440.45, Florida Statutes, is amended to read:
367	440.45  Office of the Judges of Compensation Claims.--
368	(2)
369	(c)  Each judge of compensation claims shall be appointed
370	for a term of 4 years, but during the term of office may be
371	removed by the Governor for cause. Prior to the expiration of a
372	judge's term of office, the statewide nominating commission
373	shall review the judge's conduct and determine whether the
374	judge's performance is satisfactory. Effective July 1, 2002, in
375	determining whether a judge's performance is satisfactory, the
376	commission shall consider the extent to which the judge has met
377	the requirements of this chapter, including, but not limited to,
378	the requirements of ss. 440.25(1) and (4)(a)-(e), 440.34(3)(2),
379	and 440.442. If the judge's performance is deemed satisfactory,
380	the commission shall report its finding to the Governor no later
381	than 6 months prior to the expiration of the judge's term of
382	office. The Governor shall review the commission's report and
383	may reappoint the judge for an additional 4-year term. If the
384	Governor does not reappoint the judge, the Governor shall inform
385	the commission. The judge shall remain in office until the
386	Governor has appointed a successor judge in accordance with
387	paragraphs (a) and (b). If a vacancy occurs during a judge's
388	unexpired term, the statewide nominating commission does not
389	find the judge's performance is satisfactory, or the Governor
390	does not reappoint the judge, the Governor shall appoint a
391	successor judge for a term of 4 years in accordance with
392	paragraph (b).
393	Section 7.  Paragraph (b) of subsection (6) of section
394	440.491, Florida Statutes, is amended to read:
395	440.491  Reemployment of injured workers; rehabilitation.--
396	(6)  TRAINING AND EDUCATION.--
397	(b)  When an employee who has attained maximum medical
398	improvement is unable to earn at least 80 percent of the
399	compensation rate and requires training and education to obtain
400	suitable gainful employment, the employer or carrier shall pay
401	the employee additional training and education temporary total
402	compensation benefits while the employee receives such training
403	and education for a period not to exceed 26 weeks, which period
404	may be extended for an additional 26 weeks or less, if such
405	extended period is determined to be necessary and proper by a
406	judge of compensation claims. The benefits provided under this
407	paragraph shall be calculated in the same manner as temporary
408	total disability benefits under s. 440.15(2) and shall not be in
409	addition to the 104 weeks as specified in s. 440.15(2). However,
410	a carrier or employer is not precluded from voluntarily paying
411	additional temporary total disability compensation beyond that
412	period. If an employee requires temporary residence at or near a
413	facility or an institution providing training and education
414	which is located more than 50 miles away from the employee's
415	customary residence, the reasonable cost of board, lodging, or
416	travel must be borne by the department from the Workers'
417	Compensation Administration Trust Fund established by s. 440.50.
418	An employee who refuses to accept training and education that is
419	recommended by the vocational evaluator and considered necessary
420	by the department will forfeit any additional training and
421	education benefits and any additional payment for lost wages
422	under this chapter. The department shall adopt rules to
423	implement this section, which shall include requirements placed
424	upon the carrier to notify the injured employee of the
425	availability of training and education benefits as specified in
426	this chapter. The department shall also include information
427	regarding the eligibility for training and education benefits in
428	informational materials specified in ss. 440.207 and 440.40.
429	Section 8.  This act shall take effect July 1, 2009.

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