Florida Senate - 2014 SB 1214
By Senator Hays
11-00227E-14 20141214__
1 A bill to be entitled
2 An act relating to workers’ compensation; amending s.
3 440.09, F.S.; clarifying factors to be considered in
4 determining major contributing cause; authorizing the
5 collection and testing of blood and urine samples upon
6 employer or carrier request; providing for payment of
7 resulting medical bills regardless of test results;
8 amending s. 440.102, F.S.; providing for post-accident
9 drug testing; authorizing use of drug test results by
10 an employer who complies with material provisions of
11 drug-free workplace requirements; amending s. 440.13,
12 F.S.; revising the period within which a carrier must
13 authorize an alternative physician; revising
14 requirements related to treatment reassessment when
15 certain controlled substances are prescribed; amending
16 s. 440.15, F.S.; providing that permanent total
17 disability benefits shall not be awarded if an
18 employee is capable of performing light-duty work;
19 providing that all preexisting conditions and injuries
20 are subject to apportionment; amending s. 440.20,
21 F.S.; authorizing the advance payment of compensation
22 only for compensable injuries; providing a methodology
23 for the repayment of advances made by self-insured
24 employers; providing an effective date.
25
26 Be It Enacted by the Legislature of the State of Florida:
27
28 Section 1. Paragraph (b) of subsection (1) and paragraph
29 (a) of subsection (7) of section 440.09, Florida Statutes, are
30 amended to read:
31 440.09 Coverage.—
32 (1) The employer must pay compensation or furnish benefits
33 required by this chapter if the employee suffers an accidental
34 compensable injury or death arising out of work performed in the
35 course and the scope of employment. The injury, its occupational
36 cause, and any resulting manifestations or disability must be
37 established to a reasonable degree of medical certainty, based
38 on objective relevant medical findings, and the accidental
39 compensable injury must be the major contributing cause of any
40 resulting injuries. For purposes of this section, “major
41 contributing cause” means the cause which is more than 50
42 percent responsible for the injury as compared to all other
43 causes combined for which treatment or benefits are sought. In
44 cases involving occupational disease or repetitive exposure,
45 both causation and sufficient exposure to support causation must
46 be proven by clear and convincing evidence. Pain or other
47 subjective complaints alone, in the absence of objective
48 relevant medical findings, are not compensable. For purposes of
49 this section, “objective relevant medical findings” are those
50 objective findings that correlate to the subjective complaints
51 of the injured employee and are confirmed by physical
52 examination findings or diagnostic testing. Establishment of the
53 causal relationship between a compensable accident and injuries
54 for conditions that are not readily observable must be by
55 medical evidence only, as demonstrated by physical examination
56 findings or diagnostic testing. Major contributing cause must be
57 demonstrated by medical evidence only.
58 (b) If an injury arising out of and in the course of
59 employment combines with a preexisting disease or condition to
60 cause or prolong disability or need for treatment, the employer
61 must pay compensation or benefits required by this chapter only
62 to the extent that the injury arising out of and in the course
63 of employment is and remains more than 50 percent responsible
64 for the injury as compared to all other causes combined and
65 thereafter remains the major contributing cause of the
66 disability or need for treatment. Major contributing cause must
67 be demonstrated by medical evidence only. A preexisting disease
68 or condition is not limited to work-related injuries and
69 conditions, and all preexisting diseases and conditions may be
70 considered in the determination of major contributing cause.
71 (7)(a) To ensure that the workplace is a drug-free
72 environment and to deter the use of drugs and alcohol at the
73 workplace, if the employer has reason to suspect that the injury
74 was occasioned primarily by the intoxication of the employee or
75 by the use of any drug, as defined in this chapter, which
76 affected the employee to the extent that the employee’s normal
77 faculties were impaired, and the employer has not implemented a
78 drug-free workplace pursuant to ss. 440.101 and 440.102, the
79 employer may require the employee to submit to a test for the
80 presence of any or all drugs or alcohol in his or her system.
81 Upon request of the employer or carrier, a hospital, medical
82 clinic, physician, or other medical provider licensed and
83 authorized to collect bodily samples, including blood or urine,
84 shall collect blood or urine samples, retain all samples, follow
85 chain-of-custody requirements, retain laboratory reports, and
86 release the samples to a licensed laboratory for subsequent
87 testing following all work-related injuries. The cost of
88 collecting and testing the samples and related medical costs
89 must be paid by the employer or carrier, regardless of the test
90 results, in accordance with the provisions of this chapter
91 governing the payment of medical bills.
92 Section 2. Paragraph (a) of subsection (4) of section
93 440.102, Florida Statutes, is amended, subsections (13) through
94 (15) of that section are renumbered as subsections (14) through
95 (16), respectively, and a new subsection (13) is added to that
96 section, to read:
97 440.102 Drug-free workplace program requirements.—The
98 following provisions apply to a drug-free workplace program
99 implemented pursuant to law or to rules adopted by the Agency
100 for Health Care Administration:
101 (4) TYPES OF TESTING.—
102 (a) An employer is required to conduct the following types
103 of drug tests:
104 1. Job applicant drug testing.—An employer must require job
105 applicants to submit to a drug test and may use a refusal to
106 submit to a drug test or a positive confirmed drug test as a
107 basis for refusing to hire a job applicant.
108 2. Reasonable-suspicion drug testing.—An employer must
109 require an employee to submit to reasonable-suspicion drug
110 testing.
111 3. Routine fitness-for-duty drug testing.—An employer must
112 require an employee to submit to a drug test if the test is
113 conducted as part of a routinely scheduled employee fitness-for
114 duty medical examination that is part of the employer’s
115 established policy or that is scheduled routinely for all
116 members of an employment classification or group.
117 4. Followup drug testing.—If the employee in the course of
118 employment enters an employee assistance program for drug
119 related problems, or a drug rehabilitation program, the employer
120 must require the employee to submit to a drug test as a followup
121 to such program, unless the employee voluntarily entered the
122 program. In those cases, the employer has the option to not
123 require followup testing. If followup testing is required, it
124 must be conducted at least once a year for a 2-year period after
125 completion of the program. Advance notice of a followup testing
126 date must not be given to the employee to be tested.
127 5. Post-accident drug testing.—An employee who sustains or
128 reports a work-related injury shall submit to drug testing
129 immediately after receiving initial treatment for the injury. If
130 the injured employee refuses to submit to testing, it shall be
131 presumed, in the absence of clear and convincing evidence to the
132 contrary, that the injury was occasioned primarily by the
133 influence of drugs. This presumption may be rebutted only by
134 evidence that there is no reasonable hypothesis that the drug
135 influence contributed to the injury.
136 (13) COMPLIANCE WITH MATERIAL PROVISIONS.—An employer who
137 is in compliance with the material provisions of this section
138 but is not in compliance with every nonmaterial provision may
139 not be precluded from using positive test results to deny
140 benefits unless the noncompliance affects the validity of the
141 test results obtained.
142 Section 3. Paragraph (f) of subsection (2) and paragraph
143 (c) of subsection (15) of section 440.13, Florida Statutes, are
144 amended to read:
145 440.13 Medical services and supplies; penalty for
146 violations; limitations.—
147 (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.—
148 (f) Upon the written request of the employee, the carrier
149 shall give the employee the opportunity for one change of
150 physician during the course of treatment for any one accident.
151 Upon the granting of a change of physician, the originally
152 authorized physician in the same specialty as the changed
153 physician shall become deauthorized upon written notification by
154 the employer or carrier. The carrier shall authorize an
155 alternative physician who shall not be professionally affiliated
156 with the previous physician within 5 business days after receipt
157 of the request. If the carrier fails to provide a change of
158 physician as requested by the employee, the employee may select
159 the physician and such physician shall be considered authorized
160 if the treatment being provided is compensable and medically
161 necessary.
162
163 Failure of the carrier to timely comply with this subsection
164 shall be a violation of this chapter and the carrier shall be
165 subject to penalties as provided for in s. 440.525.
166 (15) STANDARDS OF CARE.—The following standards of care
167 shall be followed in providing medical care under this chapter:
168 (c) Reasonable necessary medical care of injured employees
169 shall in all situations:
170 1. Utilize a high intensity, short duration treatment
171 approach that focuses on early activation and restoration of
172 function whenever possible.
173 2. Include reassessment of the treatment plans, regimes,
174 therapies, prescriptions, and functional limitations or
175 restrictions prescribed by the provider every 30 days. If a
176 controlled substance listed in Schedule II, Schedule III, or
177 Schedule IV of s. 893.03 is prescribed, the employer or carrier
178 may require the prescribing physician to meet with and evaluate
179 the injured worker at medically reasonable intervals to
180 determine the level of each controlled substance in the injured
181 worker’s system. Such evaluation may include testing of blood or
182 urine.
183 3. Be focused on treatment of the individual employee’s
184 specific clinical dysfunction or status and shall not be based
185 upon nondescript diagnostic labels.
186
187 All treatment shall be inherently scientifically logical, and
188 the evaluation or treatment procedure must match the documented
189 physiologic and clinical problem. Treatment shall match the
190 type, intensity, and duration of service required by the problem
191 identified.
192 Section 4. Paragraphs (a) and (b) of subsection (1) and
193 paragraph (b) of subsection (5) of section 440.15, Florida
194 Statutes, are amended to read:
195 440.15 Compensation for disability.—Compensation for
196 disability shall be paid to the employee, subject to the limits
197 provided in s. 440.12(2), as follows:
198 (1) PERMANENT TOTAL DISABILITY.—
199 (a) In case of total disability adjudged to be permanent,
200 66 2/3 or 66.67 percent of the average weekly wages shall be
201 paid to the employee during the continuance of such total
202 disability. No Compensation is not shall be payable under this
203 section if the employee is engaged in, or is physically capable
204 of engaging in, at least sedentary employment. Permanent total
205 disability benefits shall not be awarded if, in the opinion of
206 the authorized physicians, the employee is able to perform
207 light-duty work. However, an employee is not precluded from
208 contesting her or his release to light-duty work.
209 (b) In the following cases, an injured employee is presumed
210 to be permanently and totally disabled unless the employer or
211 carrier establishes that the employee is physically capable of
212 engaging in at least sedentary employment within a 50-mile
213 radius of the employee’s residence:
214 1. Spinal cord injury involving severe paralysis of an arm,
215 a leg, or the trunk;
216 2. Amputation of an arm, a hand, a foot, or a leg involving
217 the effective loss of use of that appendage;
218 3. Severe brain or closed-head injury as evidenced by:
219 a. Severe sensory or motor disturbances;
220 b. Severe communication disturbances;
221 c. Severe complex integrated disturbances of cerebral
222 function;
223 d. Severe episodic neurological disorders; or
224 e. Other severe brain and closed-head injury conditions at
225 least as severe in nature as any condition provided in sub
226 subparagraphs a.-d.;
227 4. Second-degree or third-degree burns of 25 percent or
228 more of the total body surface or third-degree burns of 5
229 percent or more to the face and hands; or
230 5. Total or industrial blindness.
231
232 In all other cases, in order to obtain permanent total
233 disability benefits, the employee must establish that he or she
234 is not able to engage in at least sedentary employment, within a
235 50-mile radius of the employee’s residence, due to his or her
236 physical limitation. Permanent total disability benefits shall
237 not be awarded if, in the opinion of the authorized physicians,
238 the employee is able to perform light-duty work. However, an
239 employee is not precluded from contesting her or his release to
240 light-duty work. Entitlement to such benefits shall cease when
241 the employee reaches age 75, unless the employee is not eligible
242 for social security benefits under 42 U.S.C. s. 402 or s. 423
243 because the employee’s compensable injury has prevented the
244 employee from working sufficient quarters to be eligible for
245 such benefits, notwithstanding any age limits. If the accident
246 occurred on or after the employee reaches age 70, benefits shall
247 be payable during the continuance of permanent total disability,
248 not to exceed 5 years following the determination of permanent
249 total disability. Only claimants with catastrophic injuries or
250 claimants who are incapable of engaging in employment, as
251 described in this paragraph, are eligible for permanent total
252 benefits. In no other case may permanent total disability be
253 awarded.
254 (5) SUBSEQUENT INJURY.—
255 (b) If a compensable injury, disability, or need for
256 medical care, or any portion thereof, is a result of aggravation
257 or acceleration of a preexisting condition, or is the result of
258 merger with a preexisting condition, only the disabilities and
259 medical treatment associated with such compensable injury shall
260 be payable under this chapter, excluding the degree of
261 disability or medical conditions existing at the time of the
262 impairment rating or at the time of the accident, regardless of
263 whether the preexisting condition was disabling at the time of
264 the accident or at the time of the impairment rating and without
265 considering whether the preexisting condition would be disabling
266 without the compensable accident. All preexisting conditions and
267 injuries, whether work related or not work related, are subject
268 to apportionment. The degree of permanent impairment or
269 disability attributable to the accident or injury shall be
270 compensated in accordance with this section, apportioning out
271 the preexisting condition based on the anatomical impairment
272 rating attributable to the preexisting condition. Medical
273 benefits shall be paid apportioning out the percentage of the
274 need for such care attributable to the preexisting condition. As
275 used in this paragraph, “merger” means the combining of a
276 preexisting permanent impairment or disability with a subsequent
277 compensable permanent impairment or disability which, when the
278 effects of both are considered together, result in a permanent
279 impairment or disability rating which is greater than the sum of
280 the two permanent impairment or disability ratings when each
281 impairment or disability is considered individually.
282 Section 5. Paragraph (c) of subsection (12) and subsection
283 (13) of section 440.20, Florida Statutes, are amended to read:
284 440.20 Time for payment of compensation and medical bills;
285 penalties for late payment.—
286 (12)
287 (c) If In the event the claimant has sustained a
288 compensable injury and has not returned to the same or
289 equivalent employment with no substantial reduction in wages or
290 has suffered a substantial loss of earning capacity or a
291 physical impairment, actual or apparent:
292 1. An advance payment of compensation not in excess of
293 $2,000 may be approved informally by letter, without hearing, by
294 any judge of compensation claims or the Chief Judge.
295 2. An advance payment of compensation not in excess of
296 $2,000 may be ordered by any judge of compensation claims after
297 giving the interested parties an opportunity for a hearing
298 thereon pursuant to not less than 10 days’ notice by mail,
299 unless such notice is waived, and after giving due consideration
300 to the interests of the person entitled thereto. When the
301 parties have stipulated to an advance payment of compensation
302 not in excess of $2,000, such advance may be approved by an
303 order of a judge of compensation claims, with or without
304 hearing, or informally by letter by any such judge of
305 compensation claims, if such advance is found to be for the best
306 interests of the person entitled thereto.
307 3. When the parties have stipulated to an advance payment
308 in excess of $2,000, such payment may be approved by a judge of
309 compensation claims by order if the judge finds that such
310 advance payment is for the best interests of the person entitled
311 thereto and is reasonable under the circumstances of the
312 particular case. The judge of compensation claims shall make or
313 cause to be made such investigations as she or he considers
314 necessary concerning the stipulation and, in her or his
315 discretion, may have an investigation of the matter made. The
316 stipulation and the report of any investigation shall be deemed
317 a part of the record of the proceedings.
318 4. An advance payment of compensation shall not be issued
319 or ordered if compensability has been denied by the employer or
320 carrier.
321 (13) If the employer has made advance payments of
322 compensation, she or he shall be entitled to be reimbursed out
323 of any unpaid installment or installments of compensation due.
324 If an advance payment of compensation is made by a self-insured
325 employer, the employer may deduct 20 percent of the claimant’s
326 wages until the entire amount of the advance is repaid.
327 Section 6. This act shall take effect July 1, 2014.