Senate Bill sb1926

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    Florida Senate - 2001                                  SB 1926

    By Senator King





    8-661A-01

  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.02, F.S.; revising a monetary

  4         limit in the definition of the term "casual";

  5         excluding work done by state prisoners and

  6         county inmates from the definition of

  7         employment; amending s. 440.09, F.S.; excluding

  8         employees covered under the Defense Base Act

  9         from payment of benefits; amending s. 440.12,

10         F.S.; providing for electronic payment of

11         compensation payments; amending s. 440.13,

12         F.S.; revising requirements for submission of

13         certain medical reports and bills; granting

14         rehabilitation providers access to medical

15         records; revising provider eligibility

16         requirements; amending s. 440.14, F.S.;

17         requiring the employee to provide information

18         concerning concurrent employment; amending s.

19         440.185, F.S.; authorizing the division to

20         contract with a private entity for collection

21         of certain policy information; providing

22         application; amending s. 440.192, F.S.;

23         revising requirements and procedures for filing

24         petitions for benefits; permitting judges to

25         dismiss portions of a petition; specifying that

26         dismissal of petitions is without prejudice;

27         amending grounds for dismissal; redesignating

28         the notice of denial as the "response to

29         petition"; amending s. 440.20, F.S.; providing

30         for payment of compensation by direct deposit

31         under certain circumstances; authorizing not

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  1         holding a hearing under certain circumstances;

  2         revising the period for payment; revising

  3         lump-sum settlement requirements; amending s.

  4         440.22, F.S.; excluding child support and

  5         alimony claims from general exemption of

  6         workers' compensation benefits from claims of

  7         creditors; amending s. 440.25, F.S.; revising

  8         mediation procedures; removing the division's

  9         participation in indigency proceedings;

10         amending s. 440.271, F.S.; requiring the First

11         District Court of Appeal to establish a

12         specialized division to hear workers'

13         compensation cases; amending s. 440.34, F.S.;

14         providing for a response to petition; amending

15         s. 440.38, F.S.; providing for the type of

16         qualifying security deposit necessary to become

17         a self-insured employer; providing

18         requirements, procedures, and criteria;

19         conforming cross-references; amending s.

20         440.345, F.S.; revising reporting requirements;

21         amending s. 440.44, F.S.; revising record

22         requirements; amending s. 440.45, F.S.;

23         revising reporting requirements; requiring the

24         judicial nominating commission to consider

25         whether judges of compensation claims have met

26         certain requirements; providing procedures;

27         authorizing the Governor to appoint certain

28         judges of compensation claims; amending s.

29         440.59, F.S., eliminating injury report;

30         revising reporting requirements; amending s.

31         440.593, F.S., providing enforcement authority

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  1         relating to electronic reporting; amending s.

  2         61.14, F.S.; requiring judges of compensation

  3         claims to consider the interests of the worker

  4         and the worker's family when approving

  5         settlements of workers' compensation claims;

  6         requiring appropriate recovery of any

  7         child-support arrearage from those settlements;

  8         amending s. 61.30, F.S.; providing that gross

  9         income includes all workers' compensation

10         benefits and settlements; amending ss. 489.114,

11         489.510, F.S.; providing an exception to

12         certain workers' compensation coverage evidence

13         requirements; amending ss. 489.115, 489.515,

14         F.S.; revising certification and registration

15         requirements for initial licensure; amending s.

16         627.311, F.S.; providing for use of

17         policyholder surplus for purposes of funding

18         certain deficits; amending s. 627.914, F.S.;

19         revising the requirements for reports of

20         information by workers' compensation insurers;

21         deleting a reporting requirement for the

22         Division of Workers' Compensation; repealing s.

23         440.45(3), F.S., relating to judges of

24         compensation claims serving as docketing

25         judges; repealing s. 440.49(13), F.S., relating

26         to the Special Disability Trust Fund

27         Privatization Commission; providing effective

28         dates.

29

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

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  1         Section 1.  Subsection (4) and paragraph (c) of

  2  subsection (16) of section 440.02, Florida Statutes, are

  3  amended to read:

  4         440.02  Definitions.--When used in this chapter, unless

  5  the context clearly requires otherwise, the following terms

  6  shall have the following meanings:

  7         (4)  "Casual" as used in this section refers shall be

  8  taken to refer only to employments for when the work that is

  9  anticipated contemplated is to be completed in not exceeding

10  10 working days or less, without regard to the number of

11  persons employed, and at a when the total labor cost of such

12  work is less than $500 $100.

13         (16)

14         (c)  "Employment" does not include service performed by

15  or as:

16         1.  Domestic servants in private homes.

17         2.  Agricultural labor performed on a farm in the

18  employ of a bona fide farmer, or association of farmers, that

19  who employs 5 or fewer regular employees and that who employs

20  fewer than 12 other employees at one time for seasonal

21  agricultural labor that is completed in less than 30 days,

22  provided such seasonal employment does not exceed 45 days in

23  the same calendar year. The term "farm" includes stock, dairy,

24  poultry, fruit, fur-bearing animals, fish, and truck farms,

25  ranches, nurseries, and orchards. The term "agricultural

26  labor" includes field foremen, timekeepers, checkers, and

27  other farm labor supervisory personnel.

28         3.  Professional athletes, such as professional boxers,

29  wrestlers, baseball, football, basketball, hockey, polo,

30  tennis, jai alai, and similar players, and motorsports teams

31  competing in a motor racing event as defined in s. 549.08.

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  1         4.  Labor under a sentence of a court to perform

  2  community services as provided in s. 316.193.

  3         5.  State prisoners or county inmates except those

  4  performing services for private employers or those enumerated

  5  in s. 948.03(8)(a).

  6         Section 2.  Subsection (2) of section 440.09, Florida

  7  Statutes, is amended to read:

  8         440.09  Coverage.--

  9         (2)  Benefits are not payable in respect of the

10  disability or death of any employee covered by the Federal

11  Employer's Liability Act, the Longshoremen's and Harbor

12  Worker's Compensation Act, the Defense Base Act, or the Jones

13  Act.

14         Section 3.  Subsection (1) of section 440.12, Florida

15  Statutes, is amended to read:

16         440.12  Time for commencement and limits on weekly rate

17  of compensation.--

18         (1)  No compensation shall be allowed for the first 7

19  days of the disability, except benefits provided for in s.

20  440.13. However, if the injury results in disability of more

21  than 21 days, compensation shall be allowed from the

22  commencement of the disability.  All weekly compensation

23  payments, except for the first payment, shall be paid by check

24  or, if authorized by the employee, deposited directly into the

25  employee's account at a financial institution. As used in this

26  subsection, the term "financial institution," means a

27  financial institution as defined in s. 655.005(1)(h).

28         Section 4.  Paragraph (a) of subsection (3) and

29  paragraphs (b) and (c) of subsection (4) of section 440.13,

30  Florida Statutes, are amended to read:

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  1         440.13  Medical services and supplies; penalty for

  2  violations; limitations.--

  3         (3)  PROVIDER ELIGIBILITY; AUTHORIZATION.--

  4         (a)  As a condition to eligibility for payment under

  5  this chapter, a health care provider who renders services must

  6  be a certified health care provider and must receive

  7  authorization from the carrier before providing treatment.

  8  This paragraph does not apply to emergency care. The division

  9  shall adopt rules to implement the certification of health

10  care providers. As a one-time prerequisite to obtaining

11  certification, the division shall require each physician to

12  demonstrate proof of completion of a minimum 5-hour course

13  that covers the subject areas of cost containment, utilization

14  control, ergonomics, and the practice parameters adopted by

15  the division governing the physician's field of practice. The

16  division shall coordinate with the Agency for Health Care

17  Administration, the Florida Medical Association, the Florida

18  Osteopathic Medical Association, the Florida Chiropractic

19  Association, the Florida Podiatric Medical Association, the

20  Florida Optometric Association, the Florida Dental

21  Association, and other health professional organizations and

22  their respective boards as deemed necessary by the Agency for

23  Health Care Administration in complying with this subsection.

24  No later than October 1, 1994, the division shall adopt rules

25  regarding the criteria and procedures for approval of courses

26  and the filing of proof of completion by the physicians.

27         (4)  NOTICE OF TREATMENT TO CARRIER; FILING WITH

28  DIVISION.--

29         (b)  Upon the request of the Division of Workers'

30  Compensation, each medical report or bill obtained or received

31  by the employer, the carrier, or the injured employee, or the

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  1  attorney for the employer, carrier, or injured employee, with

  2  respect to the remedial treatment, or care, and attendance of

  3  the injured employee, including any report of an examination,

  4  diagnosis, or disability evaluation, must be filed with the

  5  Division of Workers' Compensation pursuant to rules adopted by

  6  the division. The health care provider shall also furnish to

  7  the injured employee or to his or her attorney, on demand, a

  8  copy of his or her office chart, records, and reports, and may

  9  charge the injured employee an amount authorized by the

10  division for the copies. Each such health care provider shall

11  provide to the division any additional information about the

12  remedial treatment, care, and attendance which that the

13  division reasonably requests.

14         (c)  It is the policy for the administration of the

15  workers' compensation system that there be reasonable access

16  to medical information by all parties to facilitate the

17  self-executing features of the law. Notwithstanding the

18  limitations in s. 456.057 and subject to the limitations in s.

19  381.004, upon the request of the employer, the carrier, an

20  authorized qualified rehabilitation provider, or the attorney

21  for the employer or carrier either of them, the medical

22  records of an injured employee must be furnished to those

23  persons and the medical condition of the injured employee must

24  be discussed with those persons, if the records and the

25  discussions are restricted to conditions relating to the

26  workplace injury. Any such discussions may be held before or

27  after the filing of a claim without the knowledge, consent, or

28  presence of any other party or his or her agent or

29  representative. A health care provider who willfully refuses

30  to provide medical records or to discuss the medical condition

31  of the injured employee, after a reasonable request is made

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  1  for such information pursuant to this subsection, shall be

  2  subject by the division to one or more of the penalties set

  3  forth in paragraph (8)(b).

  4         Section 5.  Subsection (5) is added to section 440.14,

  5  Florida Statutes, to read:

  6         440.14  Determination of pay.--

  7         (5)(a)  If the lost wages from concurrent employment

  8  are used in calculating the average weekly wage, the employee

  9  is responsible for providing information concerning the loss

10  of earnings from the concurrent employment.

11         (b)  The employee waives any entitlement to interest,

12  penalties, and attorney's fees during the period in which the

13  employee has not provided information concerning the loss of

14  earnings from concurrent employment. Carriers are not subject

15  to penalties by the division under s. 440.20(8)(b) and (c) for

16  unpaid compensation related to concurrent employment during

17  the period in which the employee has not provided information

18  concerning the loss of earnings from concurrent employment.

19         Section 6.  Subsection (7) of section 440.185, Florida

20  Statutes, is amended to read:

21         440.185  Notice of injury or death; reports; penalties

22  for violations.--

23         (7)  Every carrier shall file with the division within

24  21 days after the issuance of a policy or contract of

25  insurance such policy information as the division requires may

26  require, including notice of whether the policy is a minimum

27  premium policy. Notice of cancellation or expiration of a

28  policy as set out in s. 440.42(3) shall be mailed to the

29  division in accordance with rules adopted promulgated by the

30  division under chapter 120. The division may contract with a

31  private entity for the collection of policy information

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  1  required to be filed by carriers under this subsection and the

  2  receipt of notices of cancellation or expiration of a policy

  3  required to be filed by carriers under s. 440.42(3).  The

  4  submission of policy information or notices of cancellation or

  5  expiration to the contracted private entity satisfies the

  6  filing requirements of this subsection and s. 440.42(3).

  7         Section 7.  Subsections (1), (2), (5), and (8) of

  8  section 440.192, Florida Statutes, are amended to read:

  9         440.192  Procedure for resolving benefit disputes.--

10         (1)  Subject to s. 440.191, any employee who has not

11  received a benefit to which the employee believes she or he is

12  entitled under this chapter shall file by certified mail, or

13  by electronic means approved by the Chief Judge, with the

14  Office of the Judges of Compensation Claims a petition for

15  benefits which meets the requirements of this section.  The

16  division shall inform employees of the location of the Office

17  of the Judges of Compensation Claims for purposes of filing a

18  petition for benefits.  The employee shall also serve copies

19  of the petition for benefits by certified mail, or by

20  electronic means approved by the Chief Judge, upon the

21  employer and, the employer's carrier, and the division in

22  Tallahassee a petition for benefits that meets the

23  requirements of this section. The division shall refer the

24  petition to the Office of the Judges of Compensation Claims.

25         (2)  Upon receipt, the Office of the Judges of

26  Compensation Claims shall review each petition and shall

27  dismiss each petition or any portion of such a petition, upon

28  the judge's its own motion or upon the motion of any party,

29  that does not on its face specifically identify or itemize the

30  following:

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  1         (a)  Name, address, telephone number, and social

  2  security number of the employee.

  3         (b)  Name, address, and telephone number of the

  4  employer.

  5         (c)  A detailed description of the injury and cause of

  6  the injury, including the location of the occurrence and the

  7  date or dates of accident.

  8         (d)  A detailed description of the employee's job, work

  9  responsibilities, and work the employee was performing when

10  the injury occurred.

11         (e)  The time period for which compensation and the

12  specific classification of compensation were was not timely

13  provided.

14         (f)  Date of maximum medical improvement, character of

15  disability, and specific statement of all benefits or

16  compensation that the employee is seeking.

17         (g)  All specific travel costs to which the employee

18  believes she or he is entitled, including dates of travel and

19  purpose of travel, means of transportation, and mileage and

20  including the date the request for mileage was filed with the

21  carrier and a copy of the request filed with the carrier.

22         (h)  Specific listing of all medical charges alleged

23  unpaid, including the name and address of the medical

24  provider, the amounts due, and the specific dates of

25  treatment.

26         (i)  The type or nature of treatment care or attendance

27  sought and the justification for such treatment.

28         (j)  Specific explanation of any other disputed issue

29  that a judge of compensation claims will be called to rule

30  upon.

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  1  The dismissal of any petition or any portion of such a

  2  petition under this section must be without prejudice and does

  3  not require a hearing.

  4         (5)  All motions to dismiss must state with

  5  particularity the basis for the motion. The judge of

  6  compensation claims shall enter an order upon such motions

  7  without hearing, unless good cause for hearing is shown. When

  8  any petition or portion of a petition is dismissed for lack of

  9  specificity under this subsection, the claimant must be

10  allowed 20 days after the date of the order of dismissal in

11  which to file an amended petition. Any grounds for dismissal

12  for lack of specificity under this section which are not

13  asserted within 30 days after receipt of the petition for

14  benefits are thereby waived.

15         (8)  Within 14 days after receipt of a petition for

16  benefits by certified mail, the carrier must either pay the

17  requested benefits without prejudice to its right to deny

18  within 120 days from receipt of the petition or file a

19  response to petition notice of denial with the Office of the

20  Judges of Compensation Claims division. The carrier must list

21  all benefits requested but not paid and explain its

22  justification for nonpayment in the response to petition

23  notice of denial. A carrier that does not deny compensability

24  in accordance with s. 440.20(4) is deemed to have accepted the

25  employee's injuries as compensable, unless it can establish

26  material facts relevant to the issue of compensability that

27  could not have been discovered through reasonable

28  investigation within the 120-day period. The carrier shall

29  provide copies of the response notice to the filing party,

30  employer, and claimant by certified mail.

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  1         Section 8.  Paragraph (a) of subsection (1), subsection

  2  (6), and paragraph (a) of subsection (11) of section 440.20,

  3  Florida Statutes, are amended and paragraph (d) is added to

  4  subsection (11) of that section, to read:

  5         440.20  Time for payment of compensation; penalties for

  6  late payment.--

  7         (1)(a)  Unless it denies compensability or entitlement

  8  to benefits, the carrier shall pay compensation directly to

  9  the employee as required by ss. 440.14, 440.15, and 440.16, in

10  accordance with the obligations set forth in those such

11  sections. If authorized by the employee, the carrier's

12  obligation to pay compensation directly to the employee is

13  satisfied when the carrier directly deposits, by electronic

14  transfer or other means, compensation into the employee's

15  account at a financial institution. As used in this paragraph,

16  the term "financial institution" means a financial institution

17  as defined in s. 655.005(1)(h). Compensation by direct deposit

18  is considered paid on the date the funds become available for

19  withdrawal by the employee.

20         (6)  If any installment of compensation for death or

21  dependency benefits, disability, permanent impairment, or wage

22  loss payable without an award is not paid within 7 days after

23  it becomes due, as provided in subsection (2), subsection (3),

24  or subsection (4), there shall be added to such unpaid

25  installment a punitive penalty of an amount equal to 20

26  percent of the unpaid installment or $5, which shall be paid

27  at the same time as, but in addition to, such installment of

28  compensation, unless notice is filed under subsection (4) or

29  unless such nonpayment results from conditions over which the

30  employer or carrier had no control. When any installment of

31  compensation payable without an award has not been paid within

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  1  7 days after it became due and the claimant concludes the

  2  prosecution of the claim before a judge of compensation claims

  3  without having specifically claimed additional compensation in

  4  the nature of a penalty under this section, the claimant will

  5  be deemed to have acknowledged that, owing to conditions over

  6  which the employer or carrier had no control, such installment

  7  could not be paid within the period prescribed for payment and

  8  to have waived the right to claim such penalty. However,

  9  during the course of a hearing, the judge of compensation

10  claims shall on her or his own motion raise the question of

11  whether such penalty should be awarded or excused. The

12  division may assess without a hearing the punitive penalty

13  against either the employer or the insurance carrier,

14  depending upon who was at fault in causing the delay. The

15  insurance policy cannot provide that this sum will be paid by

16  the carrier if the division or the judge of compensation

17  claims determines that the punitive penalty should be made by

18  the employer rather than the carrier. Any additional

19  installment of compensation paid by the carrier pursuant to

20  this section shall be paid directly to the employee by check

21  or, if authorized by the employee, by direct deposit into the

22  employee's account at a financial institution. As used in this

23  subsection, the term "financial institution" means a financial

24  institution as defined in s. 655.005(1)(h).

25         (11)(a)  Upon joint petition of all interested parties,

26  a lump-sum payment in exchange for the employer's or carrier's

27  release from liability for future medical expenses, as well as

28  future payments of compensation expenses and any other

29  benefits provided under this chapter, shall be allowed at any

30  time in any case in which the employer or carrier has filed a

31  written notice of denial within 120 days after the employer

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  1  receives notice date of the injury, and the judge of

  2  compensation claims at a hearing to consider the settlement

  3  proposal finds a justiciable controversy as to legal or

  4  medical compensability of the claimed injury or the alleged

  5  accident. A judge of compensation claims is not required to

  6  hold a hearing if the claimant is represented by an attorney

  7  and all parties stipulate that a hearing is unnecessary.  The

  8  employer or carrier may not pay any attorney's fees on behalf

  9  of the claimant for any settlement under this section unless

10  expressly authorized elsewhere in this chapter. Upon the joint

11  petition of all interested parties and after giving due

12  consideration to the interests of all interested parties, the

13  judge of compensation claims may enter a compensation order

14  approving and authorizing the discharge of the liability of

15  the employer for compensation and remedial treatment, care,

16  and attendance, as well as rehabilitation expenses, by the

17  payment of a lump sum. Such a compensation order so entered

18  upon joint petition of all interested parties is not subject

19  to modification or review under s. 440.28. If the settlement

20  proposal together with supporting evidence is not approved by

21  the judge of compensation claims, it shall be considered void.

22  Upon approval of a lump-sum settlement under this subsection,

23  the judge of compensation claims shall send a report to the

24  Chief Judge of the amount of the settlement and a statement of

25  the nature of the controversy. The Chief Judge shall keep a

26  record of all such reports filed by each judge of compensation

27  claims and shall submit to the Legislature a summary of all

28  such reports filed under this subsection annually by September

29  15.

30         (d)  When reviewing and approving any lump-sum

31  settlement under this subsection, a judge of compensation

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  1  claims must consider whether the settlement serves the

  2  interests of the worker and the worker's family, including,

  3  but not limited to, whether the settlement provides for

  4  appropriate recovery of any child-support arrearage.

  5         Section 9.  Section 440.22, Florida Statutes, is

  6  amended to read:

  7         440.22  Assignment and exemption from claims of

  8  creditors.--No assignment, release, or commutation of

  9  compensation or benefits due or payable under this chapter

10  except as provided by this chapter shall be valid, and such

11  compensation and benefits shall be exempt from all claims of

12  creditors, and from levy, execution and attachments or other

13  remedy for recovery or collection of a debt, which exemption

14  may not be waived. However, the exemption of workers'

15  compensation claims from creditors does not extend to claims

16  based on an award of child support or alimony.

17         Section 10.  Subsection (1), paragraph (e) of

18  subsection (4), and paragraph (b) of subsection (5) of section

19  440.25, Florida Statutes, are amended to read:

20         440.25  Procedures for mediation and hearings.--

21         (1)  Within 21 days after a petition for benefits is

22  filed under s. 440.192, a mediation conference concerning such

23  petition shall be held. Within 7 days after such petition is

24  filed, the judge of compensation claims shall notify the

25  interested parties that a mediation conference concerning such

26  petition will be held. Such notice shall give the date, time,

27  and location of the mediation conference. Such notice may be

28  served personally upon the interested parties or may be sent

29  to the interested parties by mail. The claimant, or the

30  adjuster of the employer or carrier, may, at the mediator's

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  1  discretion, attend the mediation conference by telephone or,

  2  if agreed to by the parties, other electronic means.

  3         (4)

  4         (e)  The order making an award or rejecting the claim,

  5  referred to in this chapter as a "compensation order," shall

  6  set forth the findings of ultimate facts and the mandate; and

  7  the order need not include any other reason or justification

  8  for such mandate. The compensation order shall be filed in the

  9  Office of the Judges of Compensation Claims office of the

10  division at Tallahassee. A copy of such compensation order

11  shall be sent by mail to the parties and attorneys of record

12  at the last known address of each, with the date of mailing

13  noted thereon.

14         (5)

15         (b)  An appellant may be relieved of any necessary

16  filing fee by filing a verified petition of indigency for

17  approval as provided in s. 57.081(1) and may be relieved in

18  whole or in part from the costs for preparation of the record

19  on appeal if, within 15 days after the date notice of the

20  estimated costs for the preparation is served, the appellant

21  files with the judge of compensation claims a copy of the

22  designation of the record on appeal, and a verified petition

23  to be relieved of costs. A verified petition filed prior to

24  the date of service of the notice of the estimated costs shall

25  be deemed not timely filed. The verified petition relating to

26  record costs shall contain a sworn statement that the

27  appellant is insolvent and a complete, detailed, and sworn

28  financial affidavit showing all the appellant's assets,

29  liabilities, and income. Failure to state in the affidavit all

30  assets and income, including marital assets and income, shall

31  be grounds for denying the petition with prejudice. The

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  1  division shall promulgate rules as may be required pursuant to

  2  this subsection, including forms for use in all petitions

  3  brought under this subsection. The appellant's attorney, or

  4  the appellant if she or he is not represented by an attorney,

  5  shall include as a part of the verified petition relating to

  6  record costs an affidavit or affirmation that, in her or his

  7  opinion, the notice of appeal was filed in good faith and that

  8  there is a probable basis for the District Court of Appeal,

  9  First District, to find reversible error, and shall state with

10  particularity the specific legal and factual grounds for the

11  opinion. Failure to so affirm shall be grounds for denying the

12  petition. A copy of the verified petition relating to record

13  costs shall be served upon all interested parties, including

14  the division and the Office of the General Counsel, Department

15  of Labor and Employment Security, in Tallahassee. The judge of

16  compensation claims shall promptly conduct a hearing on the

17  verified petition relating to record costs, giving at least 15

18  days' notice to the appellant, the division, and all other

19  interested parties, all of whom shall be parties to the

20  proceedings. The judge of compensation claims may enter an

21  order without such hearing if no objection is filed by an

22  interested party within 20 days from the service date of the

23  verified petition relating to record costs. Such proceedings

24  shall be conducted in accordance with the provisions of this

25  section and with the workers' compensation rules of procedure,

26  to the extent applicable. In the event an insolvency petition

27  is granted, the judge of compensation claims shall direct the

28  division to pay record costs and filing fees from the Workers'

29  Compensation Trust Fund pending final disposition of the costs

30  of appeal. The division may transcribe or arrange for the

31  transcription of the record in any proceeding for which it is

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  1  ordered to pay the cost of the record. In the event the

  2  insolvency petition is denied, the judge of compensation

  3  claims may enter an order requiring the petitioner to

  4  reimburse the division for costs incurred in opposing the

  5  petition, including investigation and travel expenses.

  6         Section 11.  Section 440.271, Florida Statutes, is

  7  amended to read:

  8         440.271  Appeal of order of judge of compensation

  9  claims.--Review of any order of a judge of compensation claims

10  entered pursuant to this chapter shall be by appeal to the

11  District Court of Appeal, First District. To promote

12  consistency and uniformity in the application of this chapter,

13  the District Court of Appeal, First District, shall establish

14  a specialized division to hear all appeals of orders of judges

15  of compensation claims.  The court may structure the division

16  to hear workers' compensation cases exclusively or in addition

17  to other appeals.  Appeals shall be filed in accordance with

18  rules of procedure prescribed by the Supreme Court for review

19  of such orders.  The division shall be given notice of any

20  proceedings pertaining to s. 440.25, regarding indigency, or

21  s. 440.49, regarding the Special Disability Trust Fund, and

22  shall have the right to intervene in any proceedings.

23         Section 12.  Subsection (3) of section 440.34, Florida

24  Statutes, is amended to read:

25         440.34  Attorney's fees; costs.--

26         (3)  If the claimant should prevail in any proceedings

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

28  taxed against the employer the reasonable costs of such

29  proceedings, not to include the attorney's fees of the

30  claimant. A claimant shall be responsible for the payment of

31  her or his own attorney's fees, except that a claimant shall

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  1  be entitled to recover a reasonable attorney's fee from a

  2  carrier or employer:

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

  4  claim for medical benefits only, if the claimant has not filed

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

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

  7  benefits, arising out of the same accident; or

  8         (b)  In any case in which the employer or carrier files

  9  a notice of denial or a response to petition with the division

10  and the injured person has employed an attorney in the

11  successful prosecution of the claim; or

12         (c)  In a proceeding in which a carrier or employer

13  denies that an injury occurred for which compensation benefits

14  are payable, and the claimant prevails on the issue of

15  compensability; or

16         (d)  In cases where the claimant successfully prevails

17  in proceedings filed under s. 440.24 or s. 440.28.

18

19  In applying the factors set forth in subsection (1) to cases

20  arising under paragraphs (a), (b), (c), and (d), the judge of

21  compensation claims must only consider only such benefits and

22  the time reasonably spent in obtaining them as were secured

23  for the claimant within the scope of paragraphs (a), (b), (c),

24  and (d).

25         Section 13.  Section 440.345, Florida Statutes, is

26  amended to read:

27         440.345  Reporting of attorney's fees.--All fees paid

28  to attorneys for services rendered under this chapter shall be

29  reported to the Office of the Judges of Compensation Claims

30  division as the Office of the Judges of Compensation Claims

31  division requires by rule. The Office of the Judges of

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  1  Compensation Claims division shall annually summarize such

  2  data in a report to the Workers' Compensation Oversight Board.

  3         Section 14.  Subsection (1) of section 440.38, Florida

  4  Statutes, is amended to read:

  5         440.38  Security for compensation; insurance carriers

  6  and self-insurers.--

  7         (1)  Every employer shall secure the payment of

  8  compensation under this chapter:

  9         (a)  By insuring and keeping insured the payment of

10  such compensation with any stock company or mutual company or

11  association or exchange, authorized to do business in the

12  state;

13         (b)  By furnishing satisfactory proof to the division

14  of its financial ability to pay such compensation individually

15  and on behalf of its subsidiary and affiliated companies with

16  employees in this state and receiving an authorization from

17  the division to pay such compensation directly in accordance

18  with the following provisions:

19         1.  The division may, as a condition to such

20  authorization, require an such employer to deposit with in a

21  depository designated by the division a qualifying security

22  deposit. The division shall determine the type and amount of

23  the qualifying security deposit and shall either an indemnity

24  bond or securities, at the option of the employer, of a kind

25  and in an amount determined by the division and subject to

26  such conditions as the division may prescribe conditions for

27  the qualifying security deposit, which shall include

28  authorization for to the division to call the qualifying

29  security deposit in the case of default to sell any such

30  securities sufficient to pay compensation awards or to bring

31  suit upon such bonds, to procure prompt payment of

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  1  compensation under this chapter.  In addition, the division

  2  shall require, as a condition to authorization to self-insure,

  3  proof that the employer has provided for competent personnel

  4  with whom to deliver benefits and to provide a safe working

  5  environment.  Further, the division shall require such

  6  employer to carry reinsurance at levels that will ensure the

  7  actuarial soundness of such employer in accordance with rules

  8  promulgated by the division.  The division may by rule require

  9  that, in the event of an individual self-insurer's insolvency,

10  such qualifying security deposits indemnity bonds, securities,

11  and reinsurance policies are shall be payable to the Florida

12  Self-Insurers Guaranty Association, Incorporated, created

13  pursuant to s. 440.385.  Any employer securing compensation in

14  accordance with the provisions of this paragraph shall be

15  known as a self-insurer and shall be classed as a carrier of

16  her or his own insurance.

17         2.  If the employer fails to maintain the foregoing

18  requirements, the division shall revoke the employer's

19  authority to self-insure, unless the employer provides to the

20  division the certified opinion of an independent actuary who

21  is a member of the American Society of Actuaries as to the

22  actuarial present value of the employer's determined and

23  estimated future compensation payments based on cash reserves,

24  using a 4-percent discount rate, and a qualifying security

25  deposit equal to 1.5 times the value so certified. The

26  employer shall thereafter annually provide such a certified

27  opinion until such time as the employer meets the requirements

28  of subparagraph 1.  The qualifying security deposit shall be

29  adjusted at the time of each such annual report.  Upon the

30  failure of the employer to timely provide such opinion or to

31  timely provide a security deposit in an amount equal to 1.5

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  1  times the value certified in the latest opinion, the division

  2  shall then revoke such employer's authorization to

  3  self-insure, and such failure shall be deemed to constitute an

  4  immediate serious danger to the public health, safety, or

  5  welfare sufficient to justify the summary suspension of the

  6  employer's authorization to self-insure pursuant to s. 120.68.

  7         3.  Upon the suspension or revocation of the employer's

  8  authorization to self-insure, the employer shall provide to

  9  the division and to the Florida Self-Insurers Guaranty

10  Association, Incorporated, created pursuant to s. 440.385 the

11  certified opinion of an independent actuary who is a member of

12  the American Society of Actuaries of the actuarial present

13  value of the determined and estimated future compensation

14  payments of the employer for claims incurred while the member

15  exercised the privilege of self-insurance, using a discount

16  rate of 4 percent. The employer shall provide such an opinion

17  at 6-month intervals thereafter until such time as the latest

18  opinion shows no remaining value of claims.  With each such

19  opinion, the employer shall deposit with the division a

20  qualifying security deposit in an amount equal to the value

21  certified by the actuary.  The association has a cause of

22  action against an employer, and against any successor of the

23  employer, who fails to timely provide such opinion or who

24  fails to timely maintain the required security deposit with

25  the division. The association shall recover a judgment in the

26  amount of the actuarial present value of the determined and

27  estimated future compensation payments of the employer for

28  claims incurred while the employer exercised the privilege of

29  self-insurance, together with attorney's fees.  For purposes

30  of this section, the successor of an employer means any

31  person, business entity, or group of persons or business

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  1  entities, which holds or acquires legal or beneficial title to

  2  the majority of the assets or the majority of the shares of

  3  the employer.

  4         4.  A qualifying security deposit shall consist, at the

  5  option of the employer, of:

  6         a.  Surety bonds, in a form and containing such terms

  7  as prescribed by the division, issued by a corporation surety

  8  authorized to transact surety business by the Department of

  9  Insurance, and whose policyholders' and financial ratings, as

10  reported in A.M. Best's Insurance Reports, Property-Liability,

11  are not less than "A" and "V", respectively.

12         b.  Certificates of deposit with financial

13  institutions, the deposits of which are insured through the

14  Federal Deposit Insurance Corporation or the Federal Savings

15  and Loan Insurance Corporation.

16         b.c.  Irrevocable letters of credit in favor of the

17  division issued by financial institutions located within this

18  state, the deposits of which are insured through the Federal

19  Deposit Insurance Corporation described in sub-subparagraph b.

20         d.  Direct obligations of the United States Treasury

21  backed by the full faith and credit of the United States.

22         e.  Securities issued by this state and backed by the

23  full faith and credit of this state.

24         5.  The qualifying security deposit shall be held by

25  the division, or by a depository authorized by the division,

26  exclusively for the benefit of workers' compensation

27  claimants. The security shall not be subject to assignment,

28  execution, attachment, or any legal process whatsoever, except

29  as necessary to guarantee the payment of compensation under

30  this chapter.  No surety bond may be terminated, and no letter

31  of credit other qualifying security may be allowed to expire

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  1  lapse, without 90 days' prior notice to the division and

  2  deposit by the self-insuring employer of some other qualifying

  3  security deposit of equal value within 10 business days after

  4  such notice. Failure to provide such notice or failure to

  5  timely provide qualifying replacement security after such

  6  notice shall constitute grounds for the division to call or

  7  sue upon the surety bond, or to act with respect to other

  8  pledged security in any manner necessary to preserve its value

  9  for the purposes intended by this section, including the

10  exercise its of rights under a letter of credit. Current

11  self-insured employers must comply with this section on or

12  before December 31, 2001, or upon the maturity of existing

13  security deposits, whichever occurs later, the sale of any

14  security at then prevailing market rates, or the withdrawal of

15  any funds represented by any certificate of deposit forming

16  part of the qualifying security deposit. The division may

17  specify by rule the amount of the qualifying security deposit

18  required prior to authorizing an employer to self-insure and

19  the amount of net worth required for an employer to qualify

20  for authorization to self-insure;

21         (c)  By entering into a contract with a public utility

22  under an approved utility-provided self-insurance program as

23  set forth in s. 624.46225 s. 440.571 in effect as of July 1,

24  1983.  The division shall adopt rules to implement this

25  paragraph;

26         (d)  By entering into an interlocal agreement with

27  other local governmental entities to create a local government

28  pool pursuant to s. 624.4622;

29         (e)  In accordance with s. 440.135, an employer, other

30  than a local government unit, may elect coverage under the

31  Workers' Compensation Law and retain the benefit of the

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  1  exclusiveness of liability provided in s. 440.11 by obtaining

  2  a 24-hour health insurance policy from an authorized property

  3  and casualty insurance carrier or an authorized life and

  4  health insurance carrier, or by participating in a fully or

  5  partially self-insured 24-hour health plan that is established

  6  or maintained by or for two or more employers, so long as the

  7  law of this state is not preempted by the Employee Retirement

  8  Income Security Act of 1974, Pub. L. No. 93-406, or any

  9  amendment to that law, which policy or plan must provide, for

10  at least occupational injuries and illnesses, medical benefits

11  that are comparable to those required by this chapter. A local

12  government unit, as a single employer, in accordance with s.

13  440.135, may participate in the 24-hour health insurance

14  coverage plan referenced in this paragraph. Disputes and

15  remedies arising under policies issued under this section are

16  governed by the terms and conditions of the policies and under

17  the applicable provisions of the Florida Insurance Code and

18  rules adopted under the insurance code and other applicable

19  laws of this state. The 24-hour health insurance policy may

20  provide for health care by a health maintenance organization

21  or a preferred provider organization. The premium for such

22  24-hour health insurance policy shall be paid entirely by the

23  employer. The 24-hour health insurance policy may use

24  deductibles and coinsurance provisions that require the

25  employee to pay a portion of the actual medical care received

26  by the employee. If an employer obtains a 24-hour health

27  insurance policy or self-insured plan to secure payment of

28  compensation as to medical benefits, the employer must also

29  obtain an insurance policy or policies that provide indemnity

30  benefits as follows:

31

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  1         1.  If indemnity benefits are provided only for

  2  occupational-related disability, such benefits must be

  3  comparable to those required by this chapter.

  4         2.  If indemnity benefits are provided for both

  5  occupational-related and nonoccupational-related disability,

  6  such benefits must be comparable to those required by this

  7  chapter, except that they must be based on 60 percent of the

  8  average weekly wages.

  9         3.  The employer shall provide for each of its

10  employees life insurance with a death benefit of $100,000.

11         4.  Policies providing coverage under this subsection

12  must use prescribed and acceptable underwriting standards,

13  forms, and policies approved by the Department of Insurance.

14  If any insurance policy that provides coverage under this

15  section is canceled, terminated, or nonrenewed for any reason,

16  the cancellation, termination, or nonrenewal is ineffective

17  until the self-insured employer or insurance carrier or

18  carriers notify the division and the Department of Insurance

19  of the cancellation, termination, or nonrenewal, and until the

20  division has actually received the notification. The division

21  must be notified of replacement coverage under a workers'

22  compensation and employer's liability insurance policy or plan

23  by the employer prior to the effective date of the

24  cancellation, termination, or nonrenewal; or

25         (f)  By entering into a contract with an individual

26  self-insurer under an approved individual

27  self-insurer-provided self-insurance program as set forth in

28  s. 624.46225.  The division may adopt rules to administer

29  implement this subsection.

30         Section 15.  Subsections (6) and (7) of section 440.44,

31  Florida Statutes, are amended to read:

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  1         440.44  Workers' compensation; staff organization.--

  2         (6)  SEAL.--The division, the judges of compensation

  3  claims, and the Chief Judge shall have a seal upon which shall

  4  be inscribed the words "State of Florida Department of

  5  Insurance--Seal" and "Division of Administrative

  6  Hearings--Seal." "State of Florida Department of Labor and

  7  Employment Security--Seal."

  8         (7)  DESTRUCTION OF OBSOLETE RECORDS.--The division is

  9  expressly authorized to provide by regulation for and to

10  destroy obsolete records of the division and commission. The

11  Division of Administrative Hearings is expressly authorized to

12  provide by regulation for and to destroy records of the Office

13  of the Judges of Compensation Claims.

14         Section 16.  Subsections (2), (4), (5), and (6) of

15  section 440.45, Florida Statutes, are amended to read:

16         440.45  Office of the Judges of Compensation Claims.--

17         (2)(a)  The Governor shall appoint full-time judges of

18  compensation claims to conduct proceedings as required by this

19  chapter or other law. No person may be nominated to serve as a

20  judge of compensation claims unless he or she has been a

21  member of The Florida Bar in good standing and is

22  knowledgeable in the practice of law of workers' compensation.

23  No judge of compensation claims shall engage in the private

24  practice of law during a term of office.

25         (b)  Except as provided in paragraph (c), the Governor

26  shall appoint a judge of compensation claims from a list of

27  three persons nominated by a statewide nominating commission.

28  The statewide nominating commission shall be composed of the

29  following:

30         1.  Five members, at least one of whom must be a member

31  of a minority group as defined in s. 288.703(3), one of each

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  1  who resides in each of the territorial jurisdictions of the

  2  district courts of appeal, appointed by the Board of Governors

  3  of The Florida Bar from among The Florida Bar members who are

  4  engaged in the practice of law. On July 1, 1999, the term of

  5  office of each person appointed by the Board of Governors of

  6  The Florida Bar to the commission expires. The Board of

  7  Governors shall appoint members who reside in the odd-numbered

  8  district court of appeal jurisdictions to 4-year terms each,

  9  beginning July 1, 1999, and members who reside in the

10  even-numbered district court of appeal jurisdictions to 2-year

11  terms each, beginning July 1, 1999. Thereafter, each member

12  shall be appointed for a 4-year term;

13         2.  Five electors, at least one of whom must be a

14  member of a minority group as defined in s. 288.703(3), one of

15  each who resides in each of the territorial jurisdictions of

16  the district courts of appeal, appointed by the Governor. On

17  July 1, 1999, the term of office of each person appointed by

18  the Governor to the commission expires. The Governor shall

19  appoint members who reside in the odd-numbered district court

20  of appeal jurisdictions to 2-year terms each, beginning July

21  1, 1999, and members who reside in the even-numbered district

22  court of appeal jurisdictions to 4-year terms each, beginning

23  July 1, 1999. Thereafter, each member shall be appointed for a

24  4-year term; and

25         3.  Five electors, at least one of whom must be a

26  member of a minority group as defined in s. 288.703(3), one of

27  each who resides in the territorial jurisdictions of the

28  district courts of appeal, selected and appointed by a

29  majority vote of the other 10 members of the commission. On

30  October 1, 1999, the term of office of each person appointed

31  to the commission by its other members expires. A majority of

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  1  the other members of the commission shall appoint members who

  2  reside in the odd-numbered district court of appeal

  3  jurisdictions to 2-year terms each, beginning October 1, 1999,

  4  and members who reside in the even-numbered district court of

  5  appeal jurisdictions to 4-year terms each, beginning October

  6  1, 1999. Thereafter, each member shall be appointed for a

  7  4-year term.

  8

  9  A vacancy occurring on the commission shall be filled by the

10  original appointing authority for the unexpired balance of the

11  term. No attorney who appears before any judge of compensation

12  claims more than four times a year is eligible to serve on the

13  statewide nominating commission. The meetings and

14  determinations of the nominating commission as to the judges

15  of compensation claims shall be open to the public.

16         (c)  Each judge of compensation claims shall be

17  appointed for a term of 4 years, but during the term of office

18  may be removed by the Governor for cause. Prior to the

19  expiration of a judge's term of office, the statewide

20  nominating commission shall review the judge's conduct and

21  determine whether the judge's performance is satisfactory.

22  Effective July 1, 2002, in determining whether a judge's

23  performance is satisfactory, the commission shall consider the

24  extent to which the judge has met the requirements of this

25  chapter, including, but not limited to, the requirements of

26  ss. 440.192(2), 440.25(1), 440.25(4)(a)-(f), 440.34(2), and

27  440.442.  If the commission finds that judges generally are

28  unable to meet a particular statutory requirement for reasons

29  beyond their control, the commission shall request the

30  Legislature to review that particular requirement. If the

31  judge's performance is deemed satisfactory, the commission

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  1  shall report its finding to the Governor no later than 6

  2  months prior to the expiration of the judge's term of office.

  3  The Governor shall review the commission's report and may

  4  reappoint the judge for an additional 4-year term. If the

  5  Governor does not reappoint the judge, the Governor shall

  6  inform the commission. The judge shall remain in office until

  7  the Governor has appointed a successor judge in accordance

  8  with paragraphs (a) and (b). If a vacancy occurs during a

  9  judge's unexpired term, the statewide nominating commission

10  does not find the judge's performance is satisfactory, or the

11  Governor does not reappoint the judge, the Governor shall

12  appoint a successor judge for a term of 4 years in accordance

13  with paragraph (b).

14         (d)  The Governor may appoint any attorney who has at

15  least 5 years of experience in the practice of law in this

16  state to serve as a judge of compensation claims pro hac vice

17  in the absence or disqualification of any full-time judge of

18  compensation claims or to serve temporarily as an additional

19  judge of compensation claims in any area of the state in which

20  the Governor determines that a need exists for such an

21  additional judge. However, an attorney who is so appointed by

22  the Governor may not serve for a period of more than 120

23  successive days.

24         (4)  The Chief Judge shall have the discretion to

25  require mediation and to designate qualified persons to act as

26  mediators in any dispute pending before the judges of

27  compensation claims and the division. The Chief Judge shall

28  coordinate with the Director of the Division of Workers'

29  Compensation to establish a mandatory mediation program to

30  facilitate early and efficient resolution of disputes arising

31

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  1  under this chapter and to establish training and continuing

  2  education for new and sitting judges.

  3         (5)  The Office of the Judges of Compensation Claims

  4  shall adopt promulgate rules to effect the purposes of this

  5  section. Such rules shall include procedural rules applicable

  6  to workers' compensation claim resolution and uniform criteria

  7  for measuring the performance of the office, including, but

  8  not limited to, the number of cases assigned and disposed, the

  9  age of pending and disposed cases, timeliness of

10  decisionmaking, extraordinary fee awards, and the data

11  necessary for the judicial nominating commission to review the

12  performance of judges as required in paragraph (2)(c) and

13  other performance indicators. The workers' compensation rules

14  of procedure approved by the Supreme Court shall apply until

15  the rules adopted promulgated by the Office of the Judges of

16  Compensation Claims pursuant to this section become effective.

17         (6)  Not later than December 1 of each year, the Office

18  of the Judges of Compensation Claims and the Division of

19  Workers' Compensation shall jointly issue a written report to

20  the Governor, the House of Representatives, and the Senate,

21  The Florida Bar, and the statewide nominating commission

22  summarizing the amount, cost, and outcome of all litigation

23  resolved in the previous fiscal prior year, summarizing the

24  disposition of mediation conferences, the number of mediation

25  conferences held, the number of continuances granted for

26  mediations and final hearings, the number and outcome of

27  litigated cases, the amount of attorney's fees paid in each

28  case, and the number of final orders not issued within 30 days

29  after the final hearing or closure of the hearing record

30  applications and motions for mediation conferences and

31

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  1  recommending changes or improvements to the dispute resolution

  2  elements of the Workers' Compensation Law and regulations.

  3         Section 17.  Section 440.59, Florida Statutes, is

  4  amended to read:

  5         440.59  Reporting requirements.--

  6         (1)  The Department of Labor and Employment Security

  7  shall annually prepare a report of the administration of this

  8  chapter for the preceding calendar year, including a detailed

  9  statement of the receipts of and expenditures from the fund

10  established in s. 440.50 and a statement of the causes of the

11  accidents leading to the injuries for which the awards were

12  made, together with such recommendations as the department

13  considers advisable. On or before September 15 of each year,

14  the department shall submit a copy of the report to the

15  Governor, the President of the Senate, the Speaker of the

16  House of Representatives, the Democratic and Republican

17  Leaders of the Senate and the House of Representatives, and

18  the chairs of the legislative committees having jurisdiction

19  over workers' compensation.

20         (2)  The Division of Workers' Compensation of the

21  Department of Labor and Employment Security shall complete on

22  a quarterly basis an analysis of the previous quarter's

23  injuries which resulted in workers' compensation claims. The

24  analysis shall be broken down by risk classification, shall

25  show for each such risk classification the frequency and

26  severity for the various types of injury, and shall include an

27  analysis of the causes of such injuries. The division shall

28  distribute to each employer and self-insurer in the state

29  covered by the Workers' Compensation Law the data relevant to

30  its workforce. The report shall also be distributed to the

31

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  1  insurers authorized to write workers' compensation insurance

  2  in the state.

  3         (2)(3)  The division shall annually prepare a closed

  4  claim report for all claims for which the employee lost more

  5  than 7 days from work and shall submit a copy of the report to

  6  the Governor, the President of the Senate, the Speaker of the

  7  House of Representatives, the Democratic and Republican

  8  Leaders of the Senate and the House of Representatives, and

  9  the chairs of the legislative committees having jurisdiction

10  over workers' compensation on or before September 15 of each

11  year. The closed claim report shall include, but not be

12  limited to, an analysis of all claims closed during the

13  preceding year as to the date of accident, age of the injured

14  employee, occupation of the injured employee, type of injury,

15  body part affected, type and duration of indemnity benefits

16  paid, permanent impairment rating, medical benefits identified

17  by type of health care provider, and type and cost of any

18  rehabilitation benefits provided.

19         (3)(4)  The division shall prepare an annual report for

20  all claims for which the employee lost more than 7 days from

21  work and shall submit a copy of the report to the Governor,

22  the President of the Senate, the Speaker of the House of

23  Representatives, the Democratic and Republican Leaders of the

24  Senate and the House of Representatives, and the chairs of the

25  legislative committees having jurisdiction over workers'

26  compensation, on or before September 15 of each year. The

27  annual report shall include a status report on all cases

28  involving work-related injuries in the previous 10 years. The

29  annual report shall include, but not be limited to, the number

30  of open and closed cases, the number of cases receiving

31  various types of benefits, the cash and medical benefits paid

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  1  between the date of injury and the evaluation date, the number

  2  of litigated cases, and the amount of attorney's fees paid in

  3  each case.

  4         (5)  The Chief Judge must prepare an annual report

  5  summarizing the disposition of mediation conferences and must

  6  submit the report to the Governor, the President of the

  7  Senate, the Speaker of the House of Representatives, the

  8  Democratic and Republican Leaders of the Senate and the House

  9  of Representatives, and the chairs of the legislative

10  committees having jurisdiction over workers' compensation, on

11  or before September 15 of each year.

12         Section 18.  Section 440.593, Florida Statutes, is

13  amended to read:

14         440.593  Electronic reporting.--

15         (1)  The division may establish by rule an electronic

16  reporting system requiring or authorizing whereby an employer

17  or carrier is required to submit required forms, reports, or

18  other information electronically rather than by other means

19  filing otherwise required forms or reports. The division may

20  by rule establish different deadlines for submitting forms,

21  reports, or reporting information to the division, or to its

22  authorized agent, via the electronic reporting system than are

23  otherwise required when reporting information by other means.

24         (2)  The division may require any carrier to submit

25  data electronically, either directly or through a third-party

26  vendor, and may require any carrier or vendor submitting data

27  to the division electronically to be certified by the

28  division. The division may specify performance requirements

29  for any carrier or vendor submitting data electronically.

30         (3)  The division may revoke the certification of any

31  carrier or vendor determined by the division to be in

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  1  noncompliance with performance standards prescribed by rule

  2  for electronic submissions.

  3         (4)  The division may assess a civil penalty, not to

  4  exceed $500 for each violation, as prescribed by rule.

  5         (5)  The division is authorized to adopt rules

  6  necessary to administer this section.

  7         Section 19.  Subsection (8) of section 61.14, Florida

  8  Statutes, is amended to read:

  9         61.14  Enforcement and modification of support,

10  maintenance, or alimony agreements or orders.--

11         (8)(a)  When reviewing and approving any lump-sum

12  settlement under s. 440.20(11)(a) and (b), a judge of

13  compensation claims must consider whether the settlement

14  serves the interests of the worker and the worker's family,

15  including, but not limited to, whether the settlement provides

16  for appropriate recovery of any child-support arrearage.

17         (b)  In accordance with Notwithstanding the provisions

18  of s. 440.22, any compensation due or that may become due an

19  employee under chapter 440 is exempt from garnishment,

20  attachment, execution, and assignment of income, except for

21  the purposes of enforcing child or spousal support

22  obligations.

23         Section 20.  Paragraph (a) of subsection (2) of section

24  61.30, Florida Statutes, is amended to read:

25         61.30  Child support guidelines; retroactive child

26  support.--

27         (2)  Income shall be determined on a monthly basis for

28  the obligor and for the obligee as follows:

29         (a)  Gross income shall include, but is not limited to,

30  the following items:

31         1.  Salary or wages.

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  1         2.  Bonuses, commissions, allowances, overtime, tips,

  2  and other similar payments.

  3         3.  Business income from sources such as

  4  self-employment, partnership, close corporations, and

  5  independent contracts. "Business income" means gross receipts

  6  minus ordinary and necessary expenses required to produce

  7  income.

  8         4.  Disability benefits.

  9         5.  All worker's compensation benefits and settlements.

10         6.  Unemployment compensation.

11         7.  Pension, retirement, or annuity payments.

12         8.  Social security benefits.

13         9.  Spousal support received from a previous marriage

14  or court ordered in the marriage before the court.

15         10.  Interest and dividends.

16         11.  Rental income, which is gross receipts minus

17  ordinary and necessary expenses required to produce the

18  income.

19         12.  Income from royalties, trusts, or estates.

20         13.  Reimbursed expenses or in kind payments to the

21  extent that they reduce living expenses.

22         14.  Gains derived from dealings in property, unless

23  the gain is nonrecurring.

24         Section 21.  Section 489.114, Florida Statutes, is

25  amended to read:

26         489.114  Evidence of workers' compensation

27  coverage.--Except as provided in s. 489.115(5)(d), any person,

28  business organization, or qualifying agent engaged in the

29  business of contracting in this state and certified or

30  registered under this part shall, as a condition precedent to

31  the issuance or renewal of a certificate, registration, or

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  1  certificate of authority of the contractor, provide to the

  2  Construction Industry Licensing Board, as provided by board

  3  rule, evidence of workers' compensation coverage pursuant to

  4  chapter 440.  In the event that the Division of Workers'

  5  Compensation of the Department of Labor and Employment

  6  Security receives notice of the cancellation of a policy of

  7  workers' compensation insurance insuring a person or entity

  8  governed by this section, the Division of Workers'

  9  Compensation shall certify and identify all persons or

10  entities by certification or registration license number to

11  the department after verification is made by the Division of

12  Workers' Compensation that such cancellation has occurred or

13  that persons or entities governed by this section are no

14  longer covered by workers' compensation insurance.  Such

15  certification and verification by the Division of Workers'

16  Compensation shall result solely from records furnished to the

17  Division of Workers' Compensation by the persons or entities

18  governed by this section.  The department shall notify the

19  persons or entities governed by this section who have been

20  determined to be in noncompliance with chapter 440, and the

21  persons or entities notified shall provide certification of

22  compliance with chapter 440 to the department and pay an

23  administrative fine as provided by rule.  The failure to

24  maintain workers' compensation coverage as required by law

25  shall be grounds for the board to revoke, suspend, or deny the

26  issuance or renewal of a certificate, registration, or

27  certificate of authority of the contractor under the

28  provisions of s. 489.129.

29         Section 22.  Paragraph (d) is added to subsection (5)

30  of section 489.115, Florida Statutes, to read:

31

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  1         489.115  Certification and registration; endorsement;

  2  reciprocity; renewals; continuing education.--

  3         (5)

  4         (d)  An applicant for initial issuance of a certificate

  5  or registration shall submit, as a prerequisite to qualifying

  6  for an exemption from workers' compensation coverage

  7  requirements under s. 440.05, an affidavit attesting to the

  8  fact that the applicant will obtain an exemption within 30

  9  days after the date the initial certificate or registration is

10  issued by the board.

11         Section 23.  Section 489.510, Florida Statutes, is

12  amended to read:

13         489.510  Evidence of workers' compensation

14  coverage.--Except as provided in s. 489.515(3)(b), any person,

15  business organization, or qualifying agent engaged in the

16  business of contracting in this state and certified or

17  registered under this part shall, as a condition precedent to

18  the issuance or renewal of a certificate or registration of

19  the contractor, provide to the Electrical Contractors'

20  Licensing Board, as provided by board rule, evidence of

21  workers' compensation coverage pursuant to chapter 440.  In

22  the event that the Division of Workers' Compensation of the

23  Department of Labor and Employment Security receives notice of

24  the cancellation of a policy of workers' compensation

25  insurance insuring a person or entity governed by this

26  section, the Division of Workers' Compensation shall certify

27  and identify all persons or entities by certification or

28  registration license number to the department after

29  verification is made by the Division of Workers' Compensation

30  that such cancellation has occurred or that persons or

31  entities governed by this section are no longer covered by

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  1  workers' compensation insurance.  Such certification and

  2  verification by the Division of Workers' Compensation shall

  3  result solely from records furnished to the Division of

  4  Workers' Compensation by the persons or entities governed by

  5  this section. The department shall notify the persons or

  6  entities governed by this section who have been determined to

  7  be in noncompliance with chapter 440, and the persons or

  8  entities notified shall provide certification of compliance

  9  with chapter 440 to the department and pay an administrative

10  fine as provided by rule.  The failure to maintain workers'

11  compensation coverage as required by law shall be grounds for

12  the board to revoke, suspend, or deny the issuance or renewal

13  of a certificate or registration of the contractor under the

14  provisions of s. 489.533.

15         Section 24.  Subsection (3) of section 489.515, Florida

16  Statutes, is amended to read:

17         489.515  Issuance of certificates; registrations.--

18         (3)(a)  As a prerequisite to the initial issuance or

19  the renewal of a certificate or registration, the applicant

20  shall submit an affidavit on a form provided by the board

21  attesting to the fact that the applicant has obtained both

22  workers' compensation insurance or an acceptable exemption

23  certificate issued by the department and public liability and

24  property damage insurance for the health, safety, and welfare

25  of the public in amounts determined by rule of the board. The

26  board shall by rule establish a procedure to verify the

27  accuracy of such affidavits based upon a random audit method.

28         (b)  An applicant for initial issuance of a certificate

29  or registration shall submit, as a prerequisite to qualifying

30  for an exemption from workers' compensation coverage

31  requirements under s. 440.05, an affidavit attesting to the

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  1  fact that the applicant will obtain an exemption within 30

  2  days after the date the initial certificate or registration is

  3  issued by the board.

  4         Section 25.  Paragraph (p) of subsection (4) of section

  5  627.311, Florida Statutes, is amended to read:

  6         627.311  Joint underwriters and joint reinsurers.--

  7         (4)

  8         (p)  Neither the plan nor any member of the board of

  9  governors is liable for monetary damages to any person for any

10  statement, vote, decision, or failure to act, regarding the

11  management or policies of the plan, unless:

12         1.  The member breached or failed to perform her or his

13  duties as a member; and

14         2.  The member's breach of, or failure to perform,

15  duties constitutes:

16         a.  A violation of the criminal law, unless the member

17  had reasonable cause to believe her or his conduct was not

18  unlawful. A judgment or other final adjudication against a

19  member in any criminal proceeding for violation of the

20  criminal law estops that member from contesting the fact that

21  her or his breach, or failure to perform, constitutes a

22  violation of the criminal law; but does not estop the member

23  from establishing that she or he had reasonable cause to

24  believe that her or his conduct was lawful or had no

25  reasonable cause to believe that her or his conduct was

26  unlawful;

27         b.  A transaction from which the member derived an

28  improper personal benefit, either directly or indirectly; or

29         c.  Recklessness or any act or omission that was

30  committed in bad faith or with malicious purpose or in a

31  manner exhibiting wanton and willful disregard of human

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  1  rights, safety, or property. For purposes of this

  2  sub-subparagraph, the term "recklessness" means the acting, or

  3  omission to act, in conscious disregard of a risk:

  4         (I)  Known, or so obvious that it should have been

  5  known, to the member; and

  6         (II)  Known to the member, or so obvious that it should

  7  have been known, to be so great as to make it highly probable

  8  that harm would follow from such act or omission.

  9         Section 26.  Effective July 1, 2001, section 627.914,

10  Florida Statutes, is amended to read:

11         627.914  Reports of information by workers'

12  compensation insurers required.--

13         (1)  The department shall adopt promulgate rules and

14  statistical plans that must which shall thereafter be used by

15  each insurer and self-insurance fund as defined in s. 624.461

16  in the recording and reporting of loss, expense, and claims

17  experience, in order that the experience of all insurers and

18  self-insurance funds self-insurers may be made available at

19  least annually in such form and detail as may be necessary to

20  aid the department in determining whether Florida experience

21  for workers' compensation insurance is sufficient for

22  establishing rates.

23         (2)  Any insurer authorized to write a policy of

24  workers' compensation insurance shall transmit the following

25  information to the department each year with its annual

26  report, and such information shall be reported on a net basis

27  with respect to reinsurance for nationwide experience and on a

28  direct basis for Florida experience:

29         (a)  Premiums written;

30         (b)  Premiums earned;

31         (c)  Dividends paid or credited to policyholders;

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  1         (d)  Losses paid;

  2         (e)  Allocated loss adjustment expenses;

  3         (f)  The ratio of allocated loss adjustment expenses to

  4  losses paid;

  5         (g)  Unallocated loss adjustment expenses;

  6         (h)  The ratio of unallocated loss adjustment expenses

  7  to losses paid;

  8         (i)  The total of losses paid and unallocated and

  9  allocated loss adjustment expenses;

10         (j)  The ratio of losses paid and unallocated and

11  allocated loss adjustment expenses to premiums earned;

12         (k)  The number of claims outstanding as of December 31

13  of each year;

14         (l)  The total amount of losses unpaid as of December

15  31 of each year;

16         (m)  The total amount of allocated and unallocated loss

17  adjustment expenses unpaid as of December 31 of each year; and

18         (n)  The total of losses paid and allocated loss

19  adjustment expenses and unallocated loss adjustment expenses,

20  plus the total of losses unpaid as of December 31 of each year

21  and loss adjustment expenses unpaid as of December 31 of each

22  year.

23         (3)  A report of the information required in subsection

24  (2) shall be filed no later than April 1 of each year and

25  shall include the information for the preceding year ending

26  December 31. All reports shall be on a calendar-accident year

27  basis, and each calendar-accident year shall be reported at

28  eight stages of development.

29         (2)(4)  Each insurer and self-insurance fund authorized

30  to write a policy of workers' compensation insurance shall

31  transmit the information for paragraphs (a), (b), (c), (d),

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  1  and (e) annually on both Florida experience and nationwide

  2  experience separately:

  3         (a)  Payrolls by classification.

  4         (b)  Manual premiums by classification.

  5         (c)  Standard premiums by classification.

  6         (d)  Losses by classification and injury type.

  7         (e)  Expenses.

  8

  9  A report of this information shall be filed no later than July

10  April 1 of each year.  All reports shall be filed in

11  accordance with standard reporting procedures for insurers,

12  which procedures have received approval by the department, and

13  shall contain data for the most recent policy period

14  available.  A statistical or rating organization may be used

15  by insurers and self-insurance funds to report the data

16  required by this section.  The statistical or rating

17  organization shall report each data element in the aggregate

18  only for insurers and self-insurance funds required to report

19  under this section who elect to have the rating organization

20  report on their behalf. Such insurers and self-insurance funds

21  shall be named in the report.

22         (3)(5)  Individual self-insurers as defined authorized

23  to transact workers' compensation insurance as provided in s.

24  440.02 shall report only Florida data as prescribed in

25  paragraphs (a) through (e) of subsection (2) (4) to the

26  Division of Workers' Compensation of the Department of Labor

27  and Employment Security.

28         (a)  The Division of Workers' Compensation shall

29  publish the dates and forms necessary to enable individual

30  self-insurers to comply with this section.

31

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  1         (b)  The Division of Workers' Compensation shall report

  2  the information collected under this section to the Department

  3  of Insurance in a manner prescribed by the department.

  4         (b)(c)  A statistical or rating organization may be

  5  used by individual self-insurers for the purposes of reporting

  6  the data required by this section and calculating experience

  7  ratings.

  8         (4)(6)  The department shall provide a summary of

  9  information provided pursuant to subsection subsections (2)

10  and (4) in its annual report.

11         Section 27.  Subsection (3) of section 440.45, Florida

12  Statutes, is repealed.

13         Section 28.  Effective January 1, 2002, subsection (13)

14  of section 440.49, Florida Statutes, is repealed.

15         Section 29.  Except as otherwise expressly provided in

16  this act, this act shall take effect October 1, 2001.

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Revises provisions relating to workers' compensation.
      Raises the monetary limit for the total maximum cost of
  4    labor provided in the definition of "casual" employment.
      Excludes work done by state prisoners and county inmates
  5    from the definition of employment. Excludes employees who
      are covered under the Defense Base Act from receiving
  6    workers' compensation benefits. Provides for the
      electronic payment of compensation payments. Revises
  7    requirements for submission of certain medical reports
      and bills. Grants rehabilitation providers access to
  8    medical records. Revises provider eligibility
      requirements. Revises the definition of the term
  9    "grievance." Requires certain insurers to provide
      medically necessary remedial treatment, care, and
10    attendance in certain circumstances. Requires the
      employee to provide information concerning concurrent
11    employment. Authorizes the Division of Workers'
      Compensation to contract with a private entity for
12    collection of certain policy information. Revises
      requirements and procedures for filing petitions for
13    benefits. Allows judges to dismiss portions of a
      petition. Specifies that dismissal of petitions is
14    without prejudice. Amends grounds for dismissal.
      Redesignates the notice of denial as the "response to
15    petition." Provides for the payment of compensation by
      direct deposit in certain circumstances. Authorizes not
16    holding a hearing in certain circumstances. Revises the
      period for payment. Revises requirements relating to
17    lump-sum settlements. Excludes child support and alimony
      claims from the general exemption of workers'
18    compensation benefits from claims of creditors. Revises
      mediation procedures. Removes the division from
19    participation in indigency proceedings. Requires the
      First District Court of Appeal to establish a specialized
20    division to hear workers' compensation cases. Provides
      for a response to petition. Prescribes the type of
21    qualifying security deposit necessary to become a
      self-insured employer. Provides requirements, procedures,
22    and criteria. Revises requirements pertaining to
      reporting and records. Requires the judicial nominating
23    commission to consider whether judges of compensation
      claims have met certain requirements. Provides
24    procedures. Authorizes the Governor to appoint certain
      judges of compensation claims. Eliminates injury reports.
25    Requires judges of compensation claims to consider the
      interests of the worker and the worker's family when
26    approving settlements of workers' compensation claims.
      Requires appropriate recovery of any child-support
27    arrearage from those settlements. Provides that gross
      income includes all workers' compensation benefits and
28    settlements. Provides an exception to certain workers'
      compensation coverage evidence requirements. Revises
29    certification and registration requirements for initial
      licensure. Provides for the use of policyholder surplus
30    for purposes of funding certain deficits. Revises the
      requirements for reports of information by workers'
31    compensation insurers. Deletes a reporting requirement
      for the division. Repeals s. 440.45(3), F.S., relating to
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  1    judges of compensation claims serving as docketing
      judges. Repeals s. 440.49(13), F.S., relating to the
  2    Special Disability Trust Fund Privatization Commission.

  3

  4

  5

  6

  7

  8

  9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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