The Florida Senate

440.02  Definitions.--When used in this chapter, unless the context clearly requires otherwise, the following terms shall have the following meanings:

(1)  "Accident" means only an unexpected or unusual event or result that happens suddenly. A mental or nervous injury due to stress, fright, or excitement only, or disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual's race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment. If a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable, with respect to death or permanent impairment.

(2)  "Adoption" or "adopted" means legal adoption prior to the time of the injury.

(3)  "Agency" means the Agency for Health Care Administration.

(4)  "Carrier" means any person or fund authorized under s. 440.38 to insure under this chapter and includes a self-insurer, and a commercial self-insurance fund authorized under s. 624.462

(5)  "Casual" as used in this section refers only to employments for work that is anticipated to be completed in 10 working days or less, without regard to the number of persons employed, and at a total labor cost of less than $500.

(6)  "Child" includes a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged child born out of wedlock dependent upon the deceased, but does not include married children unless wholly dependent on the employee. "Grandchild" means a child as above defined of a child as above defined. "Brother" and "sister" include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers or married sisters unless wholly dependent on the employee. "Child," "grandchild," "brother," and "sister" include only persons who at the time of the death of the deceased employees are under 18 years of age, or under 22 years of age if a full-time student in an accredited educational institution.

(7)  "Compensation" means the money allowance payable to an employee or to his or her dependents as provided for in this chapter.

(8)  "Construction industry" means for-profit activities involving the carrying out of any building, clearing, filling, excavation, or substantial improvement in the size or use of any structure or the appearance of any land. When appropriate to the context, "construction" refers to the act of construction or the result of construction. However, "construction" shall not mean a landowner's act of construction or the result of a construction upon his or her own premises, provided such premises are not intended to be sold or resold.

(9)  "Corporate officer" or "officer of a corporation" means any person who fills an office provided for in the corporate charter or articles of incorporation filed with the Division of Corporations of the Department of State or as permitted or required by chapter 607.

(10)  "Date of maximum medical improvement" means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.

(11)  "Death" as a basis for a right to compensation means only death resulting from an injury.

(12)  "Department" means the Department of Insurance.

(13)  "Disability" means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.

(14)  "Division" means the Division of Workers' Compensation of the Department of Insurance.

(15)(a)  "Employee" means any person engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.

(b)  "Employee" includes any person who is an officer of a corporation and who performs services for remuneration for such corporation within this state, whether or not such services are continuous.

1.  Any officer of a corporation may elect to be exempt from this chapter by filing written notice of the election with the department as provided in s. 440.05

2.  As to officers of a corporation who are actively engaged in the construction industry, no more than three officers may elect to be exempt from this chapter by filing written notice of the election with the department as provided in s. 440.05 However, any exemption obtained by a corporate officer of a corporation actively engaged in the construction industry is not applicable with respect to any commercial building project estimated to be valued at $250,000 or greater.

3.  An officer of a corporation who elects to be exempt from this chapter by filing a written notice of the election with the department as provided in s. 440.05 is not an employee.

Services are presumed to have been rendered to the corporation if the officer is compensated by other than dividends upon shares of stock of the corporation which the officer owns.

(c)1.  "Employee" includes a sole proprietor or a partner who devotes full time to the proprietorship or partnership and, except as provided in this paragraph, elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05 Partners or sole proprietors actively engaged in the construction industry are considered employees unless they elect to be excluded from the definition of employee by filing written notice of the election with the department as provided in s. 440.05 However, no more than three partners in a partnership that is actively engaged in the construction industry may elect to be excluded. A sole proprietor or partner who is actively engaged in the construction industry and who elects to be exempt from this chapter by filing a written notice of the election with the department as provided in s. 440.05 is not an employee. For purposes of this chapter, an independent contractor is an employee unless he or she meets all of the conditions set forth in subparagraph (d)1.

2.  Notwithstanding the provisions of subparagraph 1., the term "employee" includes a sole proprietor or partner actively engaged in the construction industry with respect to any commercial building project estimated to be valued at $250,000 or greater. Any exemption obtained is not applicable, with respect to work performed at such a commercial building project.

(d)  "Employee" does not include:

1.  An independent contractor, if:

a.  The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations;

b.  The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements;

c.  The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work;

d.  The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform;

e.  The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services;

f.  The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis;

g.  The independent contractor may realize a profit or suffer a loss in connection with performing work or services;

h.  The independent contractor has continuing or recurring business liabilities or obligations; and

i.  The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures.

However, the determination as to whether an individual included in the Standard Industrial Classification Manual of 1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762, 0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436, 2448, or 2449, or a newspaper delivery person, is an independent contractor is governed not by the criteria in this paragraph but by common-law principles, giving due consideration to the business activity of the individual. Notwithstanding the provisions of this paragraph or any other provision of this chapter, with respect to any commercial building project estimated to be valued at $250,000 or greater, a person who is actively engaged in the construction industry is not an independent contractor and is either an employer or an employee who may not be exempt from the coverage requirements of this chapter.

2.  A real estate salesperson or agent, if that person agrees, in writing, to perform for remuneration solely by way of commission.

3.  Bands, orchestras, and musical and theatrical performers, including disk jockeys, performing in licensed premises as defined in chapter 562, if a written contract evidencing an independent contractor relationship is entered into before the commencement of such entertainment.

4.  An owner-operator of a motor vehicle who transports property under a written contract with a motor carrier which evidences a relationship by which the owner-operator assumes the responsibility of an employer for the performance of the contract, if the owner-operator is required to furnish the necessary motor vehicle equipment and all costs incidental to the performance of the contract, including, but not limited to, fuel, taxes, licenses, repairs, and hired help; and the owner-operator is paid a commission for transportation service and is not paid by the hour or on some other time-measured basis.

5.  A person whose employment is both casual and not in the course of the trade, business, profession, or occupation of the employer.

6.  A volunteer, except a volunteer worker for the state or a county, municipality, or other governmental entity. A person who does not receive monetary remuneration for services is presumed to be a volunteer unless there is substantial evidence that a valuable consideration was intended by both employer and employee. For purposes of this chapter, the term "volunteer" includes, but is not limited to:

a.  Persons who serve in private nonprofit agencies and who receive no compensation other than expenses in an amount less than or equivalent to the standard mileage and per diem expenses provided to salaried employees in the same agency or, if such agency does not have salaried employees who receive mileage and per diem, then such volunteers who receive no compensation other than expenses in an amount less than or equivalent to the customary mileage and per diem paid to salaried workers in the community as determined by the department; and

b.  Volunteers participating in federal programs established under Pub. L. No. 93-113.

7.  Any officer of a corporation who elects to be exempt from this chapter.

8.  A sole proprietor or officer of a corporation who actively engages in the construction industry, and a partner in a partnership that is actively engaged in the construction industry, who elects to be exempt from the provisions of this chapter. Such sole proprietor, officer, or partner is not an employee for any reason until the notice of revocation of election filed pursuant to s. 440.05 is effective.

9.  An exercise rider who does not work for a single horse farm or breeder, and who is compensated for riding on a case-by-case basis, provided a written contract is entered into prior to the commencement of such activity which evidences that an employee/employer relationship does not exist.

10.  A taxicab, limousine, or other passenger vehicle-for-hire driver who operates said vehicles pursuant to a written agreement with a company which provides any dispatch, marketing, insurance, communications, or other services under which the driver and any fees or charges paid by the driver to the company for such services are not conditioned upon, or expressed as a proportion of, fare revenues.

11.  A person who performs services as a sports official for an entity sponsoring an interscholastic sports event or for a public entity or private, nonprofit organization that sponsors an amateur sports event. For purposes of this subparagraph, such a person is an independent contractor. For purposes of this subparagraph, the term "sports official" means any person who is a neutral participant in a sports event, including, but not limited to, umpires, referees, judges, linespersons, scorekeepers, or timekeepers. This subparagraph does not apply to any person employed by a district school board who serves as a sports official as required by the employing school board or who serves as a sports official as part of his or her responsibilities during normal school hours.

(16)  "Employer" means the state and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustees of any person. If the employer is a corporation, parties in actual control of the corporation, including, but not limited to, the president, officers who exercise broad corporate powers, directors, and all shareholders who directly or indirectly own a controlling interest in the corporation, are considered the employer for the purposes of ss. 440.105 and 440.106

(17)(a)  "Employment," subject to the other provisions of this chapter, means any service performed by an employee for the person employing him or her.

(b)  "Employment" includes:

1.  Employment by the state and all political subdivisions thereof and all public and quasi-public corporations therein, including officers elected at the polls.

2.  All private employments in which four or more employees are employed by the same employer or, with respect to the construction industry, all private employment in which one or more employees are employed by the same employer.

3.  Volunteer firefighters responding to or assisting with fire or medical emergencies whether or not the firefighters are on duty.

(c)  "Employment" does not include service performed by or as:

1.  Domestic servants in private homes.

2.  Agricultural labor performed on a farm in the employ of a bona fide farmer, or association of farmers, that employs 5 or fewer regular employees and that employs fewer than 12 other employees at one time for seasonal agricultural labor that is completed in less than 30 days, provided such seasonal employment does not exceed 45 days in the same calendar year. The term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals, fish, and truck farms, ranches, nurseries, and orchards. The term "agricultural labor" includes field foremen, timekeepers, checkers, and other farm labor supervisory personnel.

3.  Professional athletes, such as professional boxers, wrestlers, baseball, football, basketball, hockey, polo, tennis, jai alai, and similar players, and motorsports teams competing in a motor racing event as defined in s. 549.08

4.  Labor under a sentence of a court to perform community services as provided in s. 316.193

5.  State prisoners or county inmates, except those performing services for private employers or those enumerated in s. 948.03(8)(a).

(18)  "Misconduct" includes, but is not limited to, the following, which shall not be construed in pari materia with each other:

(a)  Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or

(b)  Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer's interests or of the employee's duties and obligations to the employer.

(19)  "Injury" means personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury. Damage to dentures, eyeglasses, prosthetic devices, and artificial limbs may be included in this definition only when the damage is shown to be part of, or in conjunction with, an accident. This damage must specifically occur as the result of an accident in the normal course of employment.

(20)  "Parent" includes stepparents and parents by adoption, parents-in-law, and any persons who for more than 3 years prior to the death of the deceased employee stood in the place of a parent to him or her and were dependent on the injured employee.

(21)  "Partner" means any person who is a member of a partnership that is formed by two or more persons to carry on as coowners of a business with the understanding that there will be a proportional sharing of the profits and losses between them. For the purposes of this chapter, a partner is a person who participates fully in the management of the partnership and who is personally liable for its debts.

(22)  "Permanent impairment" means any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury.

(23)  "Person" means individual, partnership, association, or corporation, including any public service corporation.

(24)  "Self-insurer" means:

(a)  Any employer who has secured payment of compensation pursuant to s. 440.38(1)(b) or (6) as an individual self-insurer;

(b)  Any employer who has secured payment of compensation through a group self-insurance fund under s. 624.4621;

(c)  Any group self-insurance fund established under s. 624.4621;

(d)  A public utility as defined in s. 364.02 or s. 366.02 that has assumed by contract the liabilities of contractors or subcontractors pursuant to s. 624.46225; or

(e)  Any local government self-insurance fund established under s. 624.4622

(25)  "Sole proprietor" means a natural person who owns a form of business in which that person owns all the assets of the business and is solely liable for all the debts of the business.

(26)  "Spouse" includes only a spouse substantially dependent for financial support upon the decedent and living with the decedent at the time of the decedent's injury and death, or substantially dependent upon the decedent for financial support and living apart at that time for justifiable cause.

(27)  "Time of injury" means the time of the occurrence of the accident resulting in the injury.

(28)  "Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury and includes only the wages earned and reported for federal income tax purposes on the job where the employee is injured and any other concurrent employment where he or she is also subject to workers' compensation coverage and benefits, together with the reasonable value of housing furnished to the employee by the employer which is the permanent year-round residence of the employee, and gratuities to the extent reported to the employer in writing as taxable income received in the course of employment from others than the employer and employer contributions for health insurance for the employee or the employee's dependents. However, housing furnished to migrant workers shall be included in wages unless provided after the time of injury. In employment in which an employee receives consideration for housing, the reasonable value of such housing compensation shall be the actual cost to the employer or based upon the Fair Market Rent Survey promulgated pursuant to s. 8 of the Housing and Urban Development Act of 1974, whichever is less. However, if employer contributions for housing or health insurance are continued after the time of the injury, the contributions are not "wages" for the purpose of calculating an employee's average weekly wage.

(29)  "Weekly compensation rate" means and refers to the amount of compensation payable for a period of 7 consecutive days, including any Saturdays, Sundays, holidays, and other nonworking days which fall within such period of 7 consecutive days. When Saturdays, Sundays, holidays, or other nonworking days immediately follow the first 7 days of disability or occur at the end of a period of disability as the last day or days of such period, such nonworking days constitute a part of the period of disability with respect to which compensation is payable.

(30)  "Construction design professional" means an architect, professional engineer, landscape architect, or surveyor and mapper, or any corporation, professional or general, that has a certificate to practice in the construction design field from the Department of Business and Professional Regulation.

(31)  "Individual self-insurer" means any employer who has secured payment of compensation pursuant to s. 440.38(1)(b) as an individual self-insurer.

(32)  "Domestic individual self-insurer" means an individual self-insurer:

(a)  Which is a corporation formed under the laws of this state;

(b)  Who is an individual who is a resident of this state or whose primary place of business is located in this state; or

(c)  Which is a partnership whose principals are residents of this state or whose primary place of business is located in this state.

(33)  "Foreign individual self-insurer" means an individual self-insurer:

(a)  Which is a corporation formed under the laws of any state, district, territory, or commonwealth of the United States other than this state;

(b)  Who is an individual who is not a resident of this state and whose primary place of business is not located in this state; or

(c)  Which is a partnership whose principals are not residents of this state and whose primary place of business is not located in this state.

(34)  "Insolvent member" means an individual self-insurer which is a member of the Florida Self-Insurers Guaranty Association, Incorporated, or which was a member and has withdrawn pursuant to s. 440.385(1)(b), and which has been found insolvent, as defined in subparagraph (35)(a)1., subparagraph (35)(a)2., or subparagraph (35)(a)3., by a court of competent jurisdiction in this or any other state, or meets the definition of subparagraph (35)(a)4.

(35)  "Insolvency" or "insolvent" means:

(a)  With respect to an individual self-insurer:

1.  That all assets of the individual self-insurer, if made immediately available, would not be sufficient to meet all the individual self-insurer's liabilities;

2.  That the individual self-insurer is unable to pay its debts as they become due in the usual course of business;

3.  That the individual self-insurer has substantially ceased or suspended the payment of compensation to its employees as required in this chapter; or

4.  That the individual self-insurer has sought protection under the United States Bankruptcy Code or has been brought under the jurisdiction of a court of bankruptcy as a debtor pursuant to the United States Bankruptcy Code.

(b)  With respect to an employee claiming insolvency pursuant to s. 440.25(5), a person is insolvent who:

1.  Has ceased to pay his or her debts in the ordinary course of business and cannot pay his or her debts as they become due; or

2.  Has been adjudicated insolvent pursuant to the federal bankruptcy law.

(36)  "Arising out of" pertains to occupational causation. An accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death.

(37)  "Soft-tissue injury" means an injury that produces damage to the soft tissues, rather than to the skeletal tissues or soft organs.

(38)  "Catastrophic injury" means a permanent impairment constituted by:

(a)  Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

(b)  Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

(c)  Severe brain or closed-head injury as evidenced by:

1.  Severe sensory or motor disturbances;

2.  Severe communication disturbances;

3.  Severe complex integrated disturbances of cerebral function;

4.  Severe episodic neurological disorders; or

5.  Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in subparagraphs 1.-4.;

(d)  Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;

(e)  Total or industrial blindness; or

(f)  Any other injury that would otherwise qualify under this chapter of a nature and severity that would qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act as the Social Security Act existed on July 1, 1992, without regard to any time limitations provided under that act.

(39)  "Insurer" means a group self-insurers' fund authorized by s. 624.4621, an individual self-insurer authorized by s. 440.38, a commercial self-insurance fund authorized by s. 624.462, an assessable mutual insurer authorized by s. 628.6011, and an insurer licensed to write workers' compensation and employer's liability insurance in this state. The term "carrier," as used in this chapter, means an insurer as defined in this subsection.

(40)  "Statement," for the purposes of ss. 440.105 and 440.106, includes, but is not limited to, any notice, representation, statement, proof of injury, bill for services, diagnosis, prescription, hospital or doctor record, X ray, test result, or other evidence of loss, injury, or expense.

(41)  "Commercial building" means any building or structure intended for commercial or industrial use, or any building or structure intended for multifamily use of more than four dwelling units, as well as any accessory use structures constructed in conjunction with the principal structure. The term, "commercial building," does not include the conversion of any existing residential building to a commercial building.

(42)  "Residential building" means any building or structure intended for residential use containing four or fewer dwelling units and any structures intended as an accessory use to the residential structure.

History.--s. 2, ch. 17481, 1935; s. 1, ch. 17482, 1935; s. 1, ch. 17483, 1935; CGL 1936 Supp. 5966(2); s. 1, ch. 18413, 1937; s. 1, ch. 20672, 1941; s. 1, ch. 28238, 1953; s. 1, ch. 29778, 1955; s. 1, ch. 57-155; s. 1, ch. 57-225; s. 1, ch. 59-100; s. 1, ch. 65-184; s. 1, ch. 67-554; ss. 17, 35, ch. 69-106; s. 1, ch. 71-80; s. 162, ch. 71-377; s. 1, ch. 72-243; s. 1, ch. 73-127; s. 1, ch. 73-283; s. 116, ch. 73-333; s. 1, ch. 74-46; s. 1, ch. 74-124; s. 1, ch. 74-197; s. 1, ch. 75-209; s. 1, ch. 77-174; s. 1, ch. 77-290; ss. 1, 23, ch. 78-300; s. 15, ch. 79-7; ss. 2, 124, ch. 79-40; s. 21, ch. 79-312; s. 1, ch. 80-236; s. 3, ch. 81-119; ss. 1, 20, ch. 83-305; s. 1, ch. 84-267; s. 6, ch. 86-171; s. 1, ch. 87-330; s. 1, ch. 88-203; s. 2, ch. 89-61; ss. 3, 43, ch. 89-289; ss. 9, 56, ch. 90-201; ss. 7, 52, ch. 91-1; s. 1, ch. 91-2; s. 2, ch. 93-415; s. 117, ch. 94-119; s. 59, ch. 94-218; s. 97, ch. 97-103; s. 1, ch. 98-174; s. 89, ch. 2000-153; s. 7, ch. 2001-91; s. 11, ch. 2002-194; s. 5, ch. 2002-236.