House Bill hb1927e1

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




                                       CS/HB 1927, First Engrossed



  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.02, F.S.; revising definitions;

  4         amending s. 440.06, F.S.; requiring employers

  5         to secure compensation; amending s. 440.09,

  6         F.S.; limiting compensation for certain

  7         impairments; requiring certain entities

  8         actively engaged in the construction industry

  9         to secure payment of compensation under chapter

10         440, F.S., after a certain date; amending s.

11         440.10, F.S.; specifying liability for

12         compensation; creating s. 440.1025, F.S.;

13         providing for consideration of a public

14         employer workplace safety program in

15         rate-setting; amending s. 440.11, F.S;

16         providing for exclusiveness of liability;

17         amending s. 440.13, F.S.; providing an

18         additional criterion for determining certain

19         value of nonprofessional attendant care

20         provided by a family member; requiring carriers

21         to allow employees to change physicians under

22         certain circumstances; specifying payments for

23         independent medical examinations; deleting

24         selection of independent medical examiner

25         criteria; specifying the number of medical

26         opinions admissible into evidence; providing an

27         exception to certain recourse for payment for

28         services rendered; amending s. 440.134, F.S.;

29         revising a definition; revising certain

30         grievance procedures for workers' compensation

31         managed care arrangements; amending s. 440.14,


                                  1

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






                                       CS/HB 1927, First Engrossed



  1         F.S.; providing for determination of pay;

  2         amending s. 440.15, F.S.; revising criteria for

  3         payment of compensation for permanent total

  4         disability; revising criteria for payment of

  5         permanent impairment and wage-loss benefits;

  6         amending s. 440.151, F.S.; providing for

  7         compensation for occupational diseases;

  8         amending s. 440.185, F.S.; requiring additional

  9         information in a report of injury; amending s.

10         440.191, F.S.; including managed care

11         arrangements under provisions relating to the

12         Employee Assistance and Ombudsman Office;

13         revising procedures for petitions for benefits

14         under the office; amending s. 440.192, F.S.;

15         revising procedures for resolving benefit

16         disputes; transferring duties and

17         responsibilities of the Division of Workers'

18         Compensation to the Office of the Judges of

19         Compensation Claims; amending s. 440.20, F.S.;

20         specifying time for payment of compensation;

21         prohibiting approval of settlement proposals

22         providing for attorney's fees in excess of

23         certain amounts; amending s. 440.25, F.S.;

24         limiting continuances under procedures for

25         mediation and hearings; providing for

26         selections of mediators by the Chief Judge;

27         providing for holding mediation conferences

28         instead of mediation hearings under certain

29         circumstances; providing for completion of

30         pretrial stipulations; authorizing a judge of

31         compensation claims to sanction certain parties


                                  2

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






                                       CS/HB 1927, First Engrossed



  1         under certain circumstances; requiring a judge

  2         of compensation claims to order a pretrial

  3         hearing for certain purposes under certain

  4         circumstances; revising final hearing time

  5         limitations and procedures; deleting a

  6         requirement that judges of compensation claims

  7         adopt and enforce certain uniform local rules;

  8         specifying resolution of determination of pay

  9         claims; requiring resolution of certain claims

10         through an expedited dispute resolution

11         process; providing for dismissal of certain

12         petitions for lack of prosecution under certain

13         circumstances; amending s. 440.29, F.S.;

14         providing for receipt into evidence of medical

15         reports from independent medical examiners;

16         amending s. 440.34, F.S.; providing for limited

17         additional attorney's fees in medical-only

18         cases; prohibiting approval of attorney's fees

19         in excess of certain amounts; deleting criteria

20         for determining certain attorney's fees;

21         amending s. 440.345, F.S.; requiring a summary

22         report of attorney's fees to the Governor and

23         the Legislature; amending s. 440.39, F.S.;

24         specifying duties of carriers with respect to

25         certain evidence; amending s. 440.4416, F.S.;

26         revising membership, member criteria, terms,

27         and meetings requirements of the Workers'

28         Compensation Oversight Board; deleting an

29         obsolete provision; providing additional

30         reporting requirements for the board; amending

31         s. 627.0915, F.S.; deleting obsolete


                                  3

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






                                       CS/HB 1927, First Engrossed



  1         provisions; providing that determinations under

  2         ss. 112.18, 112.181, 112.19, F.S., are not

  3         affected; repealing s. 440.45(3), F.S.,

  4         relating to rotating docketing judges of

  5         compensation claims; providing severability;

  6         providing an effective date.

  7

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

  9

10         Section 1.  Subsection (1), paragraph (b) of subsection

11  (14), and subsection (37) of section 440.02, Florida Statutes,

12  are amended to read:

13         440.02  Definitions.--When used in this chapter, unless

14  the context clearly requires otherwise, the following terms

15  shall have the following meanings:

16         (1)  "Accident" means only an unexpected or unusual

17  event or result that happens suddenly. A mental or nervous

18  injury due to stress, fright, or excitement only, or

19  disability or death due to the accidental acceleration or

20  aggravation of a venereal disease or of a disease due to the

21  habitual use of alcohol or controlled substances or narcotic

22  drugs, or a disease that manifests itself in the fear of or

23  dislike for an individual because of the individual's race,

24  color, religion, sex, national origin, age, or handicap is not

25  an injury by accident arising out of the employment. If a

26  preexisting disease or anomaly is accelerated or aggravated by

27  an accident arising out of and in the course of employment,

28  only acceleration of death or acceleration or aggravation of

29  the preexisting condition reasonably attributable to the

30  accident is compensable, with respect to death or permanent

31  impairment. An injury or exposure caused by exposure to a


                                  4

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






                                       CS/HB 1927, First Engrossed



  1  toxic substance is not an injury by accident arising out of

  2  the employment unless there is clear and convincing evidence

  3  establishing that exposure to the specific substance involved,

  4  at the levels to which the employee was exposed, can cause the

  5  injury or disease sustained by the employee.

  6         (14)

  7         (b)  "Employee" includes any person who is an officer

  8  of a corporation and who performs services for remuneration

  9  for such corporation within this state, whether or not such

10  services are continuous.

11         1.  Any officer of a corporation may elect to be exempt

12  from this chapter by filing written notice of the election

13  with the division as provided in s. 440.05.

14         2.  As to officers of a corporation who are actively

15  engaged in the construction industry, no more than three

16  officers may elect to be exempt from this chapter by filing

17  written notice of the election with the division as provided

18  in s. 440.05, however;

19         a.  Such election is valid only with respect to an

20  officer who is the president, vice president, secretary, or

21  treasurer of the corporation.

22         b.  Such election is valid only with respect to an

23  officer who owns not less than 10 percent of the stock of the

24  corporation.

25         3.  An officer of a corporation who elects to be exempt

26  from this chapter by filing a written notice of the election

27  with the division as provided in s. 440.05 is not an employee.

28

29  Services are presumed to have been rendered to the corporation

30  if the officer is compensated by other than dividends upon

31  shares of stock of the corporation which the officer owns.


                                  5

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






                                       CS/HB 1927, First Engrossed



  1         (37)  "Catastrophic injury" means a permanent

  2  impairment constituted by:

  3         (a)  Spinal cord injury involving severe paralysis of

  4  an arm, a leg, or the trunk;

  5         (b)  Amputation of an arm, a hand, a foot, or a leg

  6  involving the effective loss of use of that appendage;

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

  8  by:

  9         1.  Severe sensory or motor disturbances;

10         2.  Severe communication disturbances;

11         3.  Severe complex integrated disturbances of cerebral

12  function;

13         4.  Severe episodic neurological disorders; or

14         5.  Other severe brain and closed-head injury

15  conditions at least as severe in nature as any condition

16  provided in subparagraphs 1.-4.;

17         (d)  Second-degree or third-degree burns of 25 percent

18  or more of the total body surface or third-degree burns of 5

19  percent or more to the face and hands; or

20         (e)  Total or industrial blindness; or

21         (f)  Any other injury that would otherwise qualify

22  under this chapter of a nature and severity that would qualify

23  an employee to receive disability income benefits under Title

24  II or supplemental security income benefits under Title XVI of

25  the federal Social Security Act as the Social Security Act

26  existed on July 1, 1992, without regard to any time

27  limitations provided under that act.

28         Section 2.  Section 440.06, Florida Statutes, is

29  amended to read:

30         440.06  Failure to secure compensation; effect.--Every

31  employer who fails to secure the payment of compensation, as


                                  6

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






                                       CS/HB 1927, First Engrossed



  1  provided in s. 440.10, by failing to meet the requirements of

  2  under this chapter as provided in s. 440.38 may not, in any

  3  suit brought against him or her by an employee subject to this

  4  chapter to recover damages for injury or death, defend such a

  5  suit on the grounds that the injury was caused by the

  6  negligence of a fellow servant, that the employee assumed the

  7  risk of his or her employment, or that the injury was due to

  8  the comparative negligence of the employee.

  9         Section 3.  Subsection (1) of section 440.09, Florida

10  Statutes, is amended, and subsection (9) is added to said

11  section, to read:

12         440.09  Coverage.--

13         (1)  The employer shall pay compensation or furnish

14  benefits required by this chapter if the employee suffers an

15  accidental compensable injury or death arising out of work

16  performed in the course and the scope of employment. The

17  injury, its occupational cause, and any resulting

18  manifestations or disability shall be established to a

19  reasonable degree of medical certainty and by objective

20  medical findings. Mental or nervous injuries occurring as a

21  manifestation of an injury compensable under this section

22  shall be demonstrated by clear and convincing evidence. In

23  cases involving occupational disease or repetitive exposure,

24  both causation and sufficient exposure to support causation

25  shall be proven by clear and convincing evidence.

26         (a)  This chapter does not require any compensation or

27  benefits for any subsequent injury the employee suffers as a

28  result of an original injury arising out of and in the course

29  of employment unless the original injury is the major

30  contributing cause of the subsequent injury.

31


                                  7

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






                                       CS/HB 1927, First Engrossed



  1         (b)  If an injury arising out of and in the course of

  2  employment combines with a preexisting disease or condition to

  3  cause or prolong disability or need for treatment, the

  4  employer must pay compensation or benefits required by this

  5  chapter only to the extent that the injury arising out of and

  6  in the course of employment is and remains the major

  7  contributing cause of the disability or need for treatment.

  8         (c)  Death resulting from an operation by a surgeon

  9  furnished by the employer for the cure of hernia as required

10  in s. 440.15(6) shall for the purpose of this chapter be

11  considered to be a death resulting from the accident causing

12  the hernia.

13         (d)  If an accident happens while the employee is

14  employed elsewhere than in this state, which would entitle the

15  employee or his or her dependents to compensation if it had

16  happened in this state, the employee or his or her dependents

17  are entitled to compensation if the contract of employment was

18  made in this state, or the employment was principally

19  localized in this state. However, if an employee receives

20  compensation or damages under the laws of any other state, the

21  total compensation for the injury may not be greater than is

22  provided in this chapter.

23         (9)  Notwithstanding any other provision of this

24  chapter, effective January 1, 2004, all partners or sole

25  proprietors actively engaged in the construction industry

26  shall secure the payment of compensation under this chapter.

27         Section 4.  Paragraph (a) of subsection (1) of section

28  440.10, Florida Statutes, is amended to read:

29         440.10  Liability for compensation.--

30         (1)(a)  Every employer coming within the provisions of

31  this chapter, including any brought within the chapter by


                                  8

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






                                       CS/HB 1927, First Engrossed



  1  waiver of exclusion or of exemption, shall be liable for, and

  2  shall secure, in accordance with s. 440.38, the payment to his

  3  or her employees, or any physician, surgeon, or pharmacist

  4  providing services under the provisions of s. 440.13, of the

  5  compensation payable under ss. 440.13, 440.15, and 440.16. Any

  6  contractor or subcontractor who engages in any public or

  7  private construction in the state shall secure and maintain

  8  compensation for his or her employees under this chapter as

  9  provided in s. 440.38.

10         Section 5.  Section 440.1025, Florida Statutes, is

11  created to read:

12         440.1025  Consideration of public employer workplace

13  safety program in rate-setting; program requirements;

14  rulemaking.--For a public employer to be eligible for receipt

15  of specific identifiable consideration under s. 627.0915 for a

16  workplace safety program in the setting of rates, the public

17  employer must have a workplace safety program.  At a minimum,

18  the program must include a written safety policy and safety

19  rules, and make provision for safety inspections, preventative

20  maintenance, safety training, first-aid, accident

21  investigation, and necessary record keeping.  For purposes of

22  this section, "public employer" means "any agency within

23  state, county, or municipal government employing individuals

24  for salary, wages, or other remuneration."  The Division may

25  promulgate rules for insurers to utilize in determining public

26  employer compliance with the requirements of this section.

27         Section 6.  Subsection (1) of section 440.11, Florida

28  Statutes, is amended to read:

29         440.11  Exclusiveness of liability.--

30         (1)  Except if an employer acts with the intent to

31  cause injury or death, the liability of an employer prescribed


                                  9

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






                                       CS/HB 1927, First Engrossed



  1  in s. 440.10 shall be exclusive and in place of all other

  2  liability, including any vicarious liability, of such employer

  3  to any third-party tortfeasor and to the employee, the legal

  4  representative thereof, husband or wife, parents, dependents,

  5  next of kin, and anyone otherwise entitled to recover damages

  6  from such employer at law or in admiralty on account of such

  7  injury or death, except that if an employer fails to secure

  8  payment of compensation in accordance with s. 440.38 as

  9  required by this chapter, an injured employee, or the legal

10  representative thereof in case death results from the injury,

11  may elect to claim compensation under this chapter or to

12  maintain an action at law or in admiralty for damages on

13  account of such injury or death. In such action the defendant

14  may not plead as a defense that the injury was caused by

15  negligence of a fellow employee, that the employee assumed the

16  risk of the employment, or that the injury was due to the

17  comparative negligence of the employee. The same immunities

18  from liability enjoyed by an employer shall extend as well to

19  each employee of the employer when such employee is acting in

20  furtherance of the employer's business and the injured

21  employee is entitled to receive benefits under this chapter.

22  Such fellow-employee immunities shall not be applicable to an

23  employee who acts, with respect to a fellow employee, with

24  willful and wanton disregard or unprovoked physical aggression

25  or with gross negligence when such acts result in injury or

26  death or such acts proximately cause such injury or death, nor

27  shall such immunities be applicable to employees of the same

28  employer when each is operating in the furtherance of the

29  employer's business but they are assigned primarily to

30  unrelated works within private or public employment. The same

31  immunity provisions enjoyed by an employer shall also apply to


                                  10

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






                                       CS/HB 1927, First Engrossed



  1  any sole proprietor, partner, corporate officer or director,

  2  supervisor, or other person who in the course and scope of his

  3  or her duties acts in a managerial or policymaking capacity

  4  and the conduct which caused the alleged injury arose within

  5  the course and scope of said managerial or policymaking duties

  6  and was not a violation of a law, whether or not a violation

  7  was charged, for which the maximum penalty which may be

  8  imposed does not exceed 60 days' imprisonment as set forth in

  9  s. 775.082. The immunity from liability provided in this

10  subsection extends to county governments with respect to

11  employees of county constitutional officers whose offices are

12  funded by the board of county commissioners. Intent, as used

13  in this subsection, does not include actions of an employer

14  that are substantially certain to result in injury or death.

15  If an employee recovers damages from an employer either by

16  judgment or settlement under this subsection, the workers'

17  compensation carrier for the employer or the employer, if

18  self-insured, shall have an offset against any workers'

19  compensation benefits to which the employee would be entitled

20  under this chapter.  Nothing in this subsection shall create

21  or result in vicarious liability on the part of the employer.

22         Section 7.  Paragraph (b) of subsection (2), paragraphs

23  (a), (b), (e), and (f) of subsection (5), paragraph (c) of

24  subsection (9), and paragraph (b) of subsection (14) of

25  section 440.13, Florida Statutes, are amended, and paragraph

26  (f) is added to subsection (2) of said section, to read:

27         440.13  Medical services and supplies; penalty for

28  violations; limitations.--

29         (2)  MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.--

30         (b)  The employer shall provide appropriate

31  professional or nonprofessional attendant care performed only


                                  11

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






                                       CS/HB 1927, First Engrossed



  1  at the direction and control of a physician when such care is

  2  medically necessary. The value of nonprofessional attendant

  3  care provided by a family member must be determined as

  4  follows:

  5         1.  If the family member is not employed, the per-hour

  6  value equals the federal minimum hourly wage.

  7         2.  If the family member is employed and elects to

  8  leave that employment to provide attendant or custodial care,

  9  the per-hour value of that care equals the per-hour value of

10  the family member's former employment, not to exceed the

11  per-hour value of such care available in the community at

12  large.

13         3.  If the family member remains employed while

14  providing attendant or custodial care, the per-hour value of

15  that care equals the per-hour value of the family member's

16  employment, not to exceed the per-hour value of such care

17  available in the community at large.

18         4.  A family member or a combination of family members

19  providing nonprofessional attendant care under this paragraph

20  may not be compensated for more than a total of 12 hours per

21  day.

22         (f)  Upon the written request of the employee, the

23  carrier shall give the employee the opportunity for one change

24  of physician during the course of treatment for any one

25  accident.  The employee shall be entitled to select another

26  physician from among not fewer than three carrier-authorized

27  physicians who are not professionally affiliated.

28         (5)  INDEPENDENT MEDICAL EXAMINATIONS.--

29         (a)  In any dispute concerning overutilization, medical

30  benefits, compensability, or disability under this chapter,

31  the carrier or the employee may select an independent medical


                                  12

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






                                       CS/HB 1927, First Engrossed



  1  examiner. The examiner may be a health care provider treating

  2  or providing other care to the employee. An independent

  3  medical examiner may not render an opinion outside his or her

  4  area of expertise, as demonstrated by licensure and applicable

  5  practice parameters. Upon the written request of the employee,

  6  the carrier shall pay the cost of one independent medical

  7  examination per accident. The cost of any additional

  8  independent medical examination shall be borne by the party

  9  requesting the additional independent medical examination.

10  Only the costs of independent medical examinations expressly

11  relied upon by the judge of compensation claims to award

12  benefits in the final compensation order shall be taxable

13  costs under s. 440.34(3).

14         (b)  Each party is bound by his or her selection of an

15  independent medical examiner and is entitled to an alternate

16  examiner only if:

17         1.  The examiner is not qualified to render an opinion

18  upon an aspect of the employee's illness or injury which is

19  material to the claim or petition for benefits;

20         2.  The examiner ceases to practice in the specialty

21  relevant to the employee's condition;

22         3.  The examiner is unavailable due to injury, death,

23  or relocation outside a reasonably accessible geographic area;

24  or

25         4.  The parties agree to an alternate examiner.

26

27  Any party may request, or a judge of compensation claims may

28  require, designation of a division medical advisor as an

29  independent medical examiner. The opinion of the advisors

30  acting as examiners shall not be afforded the presumption set

31  forth in paragraph (9)(c).


                                  13

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






                                       CS/HB 1927, First Engrossed



  1         (e)  No medical opinion other than the opinion of a

  2  medical advisor appointed by the judge of compensation claims

  3  or division, an independent medical examiner, or an authorized

  4  treating provider is admissible in proceedings before the

  5  judges of compensation claims. The employee and the carrier

  6  may each submit into evidence, and the judge of compensation

  7  claims shall admit, the medical opinion of no more than one

  8  independent medical examiner per specialty. In cases involving

  9  occupational disease or repetitive trauma, no medical opinions

10  are admissible unless based on reliable scientific principles

11  sufficiently established to have gained general acceptance in

12  the pertinent area of specialty.

13         (f)  Attorney's fees incurred by an injured employee in

14  connection with delay of or opposition to an independent

15  medical examination, including, but not limited to, motions

16  for protective orders, are not recoverable under this chapter.

17         (9)  EXPERT MEDICAL ADVISORS.--

18         (c)  If there is disagreement in the opinions of the

19  health care providers, if two health care providers disagree

20  on medical evidence supporting the employee's complaints or

21  the need for additional medical treatment, or if two health

22  care providers disagree that the employee is able to return to

23  work, the division may, and the judge of compensation claims

24  may shall, upon his or her own motion or within 15 days after

25  receipt of a written request by either the injured employee,

26  the employer, or the carrier, order the injured employee to be

27  evaluated by an expert medical advisor. The opinion of the

28  expert medical advisor is presumed to be correct unless there

29  is clear and convincing evidence to the contrary as determined

30  by the judge of compensation claims. The expert medical

31  advisor appointed to conduct the evaluation shall have free


                                  14

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






                                       CS/HB 1927, First Engrossed



  1  and complete access to the medical records of the employee. An

  2  employee who fails to report to and cooperate with such

  3  evaluation forfeits entitlement to compensation during the

  4  period of failure to report or cooperate.

  5         (14)  PAYMENT OF MEDICAL FEES.--

  6         (b)  Fees charged for remedial treatment, care, and

  7  attendance may not exceed the applicable fee schedules adopted

  8  under this chapter, except as provided pursuant to a contract

  9  entered into between an employer or carrier and a certified

10  health care provider or health care facility for the payment

11  of medical services for covered expenses.

12         Section 8.  Paragraph (d) of subsection (1), subsection

13  (2), and paragraphs (c) and (d) of subsection (15) of section

14  440.134, Florida Statutes, are amended to read:

15         440.134  Workers' compensation managed care

16  arrangement.--

17         (1)  As used in this section, the term:

18         (d)  "Grievance" means a written complaint filed by an

19  injured worker expressing dissatisfaction with the insurer's

20  workers' compensation managed care arrangement's refusal to

21  provide medical care provided by an insurer's workers'

22  compensation managed care arrangement health care providers,

23  expressed in writing by an injured worker.

24         (2)(a)(b)  Effective January 1, 1997, The employer may

25  shall, subject to the terms and limitations specified

26  elsewhere in this section and chapter, furnish to the employee

27  solely through managed care arrangements such medically

28  necessary remedial treatment, care, and attendance for such

29  period as the nature of the injury or the process of recovery

30  requires.

31


                                  15

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






                                       CS/HB 1927, First Engrossed



  1         (b)(a)  The agency shall authorize an insurer to offer

  2  or utilize a workers' compensation managed care arrangement

  3  after the insurer files a completed application along with the

  4  payment of a $1,000 application fee, and upon the agency's

  5  being satisfied that the applicant has the ability to provide

  6  quality of care consistent with the prevailing professional

  7  standards of care and the insurer and its workers'

  8  compensation managed care arrangement otherwise meets the

  9  requirements of this section. No insurer may offer or utilize

10  a managed care arrangement without such authorization. The

11  authorization, unless sooner suspended or revoked, shall

12  automatically expire 2 years after the date of issuance unless

13  renewed by the insurer. The authorization shall be renewed

14  upon application for renewal and payment of a renewal fee of

15  $1,000, provided that the insurer is in compliance with the

16  requirements of this section and any rules adopted hereunder.

17  An application for renewal of the authorization shall be made

18  90 days prior to expiration of the authorization, on forms

19  provided by the agency. The renewal application shall not

20  require the resubmission of any documents previously filed

21  with the agency if such documents have remained valid and

22  unchanged since their original filing.

23         (15)(c)  At the time the workers' compensation managed

24  care arrangement is implemented, the insurer must provide

25  detailed information to workers and health care providers

26  describing how a grievance may be registered with the insurer.

27  Within 15 days after the date the request for medical care is

28  received by the insurer or by the insurer's workers'

29  compensation managed care arrangement, whichever date is

30  earlier, the insurer shall grant or deny the request. If the

31  insurer denies the request, the insurer shall notify the


                                  16

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






                                       CS/HB 1927, First Engrossed



  1  injured worker in writing of his or her right to file a

  2  grievance.

  3         (d)  Grievances must be considered in a timely manner

  4  and must be transmitted to appropriate decisionmakers who have

  5  the authority to fully investigate the issue and take

  6  corrective action. If the insurer or the insurer's workers'

  7  compensation managed care arrangement fails to notify the

  8  injured worker of the outcome of the grievance in writing

  9  within 15 days after the date of receiving the grievance, the

10  grievance shall be presumed to be resolved against the injured

11  worker and the grievance procedures shall be presumed to be

12  exhausted for purposes of s. 440.192(3).

13         Section 9.  Paragraph (a) of subsection (1) of section

14  440.14, Florida Statutes, is amended to read:

15         440.14  Determination of pay.--

16         (1)  Except as otherwise provided in this chapter, the

17  average weekly wages of the injured employee at the time of

18  the injury shall be taken as the basis upon which to compute

19  compensation and shall be determined, subject to the

20  limitations of s. 440.12(2), as follows:

21         (a)  If the injured employee has worked in the

22  employment in which she or he was working at the time of the

23  injury, whether for the same or another employer, during

24  substantially the whole of 13 weeks immediately preceding the

25  injury, her or his average weekly wage shall be one-thirteenth

26  of the total amount of wages earned in such employment during

27  the 13 weeks.  As used in this paragraph, the term

28  "substantially the whole of 13 weeks" means an actual shall be

29  deemed to mean and refer to a constructive period of 13 weeks

30  as a whole, which shall be defined as the 13 complete weeks

31  before the date of the accident, excluding the week the injury


                                  17

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






                                       CS/HB 1927, First Engrossed



  1  occurs. a consecutive period of 91 days, and The term "during

  2  substantially the whole of 13 weeks" shall be deemed to mean

  3  during not less than 90 percent of the total customary

  4  full-time hours of employment within such period considered as

  5  a whole.

  6         Section 10.  Paragraphs (b) and (f) of subsection (1)

  7  and paragraph (a) of subsection (3) of section 440.15, Florida

  8  Statutes, are amended to read:

  9         440.15  Compensation for disability.--Compensation for

10  disability shall be paid to the employee, subject to the

11  limits provided in s. 440.12(2), as follows:

12         (1)  PERMANENT TOTAL DISABILITY.--

13         (b)  Any compensable injury eligible for permanent

14  total benefits must be of a nature and severity that prevents

15  the employee from being able to perform his or her previous

16  work or any work available in substantial numbers within the

17  national economy. If the employee is engaged in or is capable

18  of being engaged in any gainful employment, he or she is not

19  entitled to permanent total disability. The burden is on the

20  employee to establish that he or she is unable to perform even

21  part-time sedentary work if such work is available within a

22  50-mile radius of the employee's residence or such greater

23  distance as the judge determines to be reasonable under the

24  circumstances. In addition, Only a catastrophic injury as

25  defined in s. 440.02 shall, in the absence of conclusive proof

26  of a substantial earning capacity, constitute permanent total

27  disability. Only claimants with catastrophic injuries are

28  eligible for permanent total benefits.  In no other case may

29  permanent total disability benefits be awarded.

30         (f)1.  If permanent total disability results from

31  injuries that occurred subsequent to June 30, 1955, and for


                                  18

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






                                       CS/HB 1927, First Engrossed



  1  which the liability of the employer for compensation has not

  2  been discharged under s. 440.20(11), the injured employee

  3  shall receive additional weekly compensation benefits equal to

  4  5 percent of her or his weekly compensation rate, as

  5  established pursuant to the law in effect on the date of her

  6  or his injury, multiplied by the number of calendar years

  7  since the date of injury. The weekly compensation payable and

  8  the additional benefits payable under this paragraph, when

  9  combined, may not exceed the maximum weekly compensation rate

10  in effect at the time of payment as determined pursuant to s.

11  440.12(2). Entitlement to these supplemental payments shall

12  cease at age 62 if the employee is eligible for social

13  security benefits under 42 U.S.C. s. ss. 402 or s. and 423,

14  whether or not the employee has applied for such benefits.

15  These supplemental benefits shall be paid by the division out

16  of the Workers' Compensation Administration Trust Fund when

17  the injury occurred subsequent to June 30, 1955, and before

18  July 1, 1984. These supplemental benefits shall be paid by the

19  employer when the injury occurred on or after July 1, 1984.

20  Supplemental benefits are not payable for any period prior to

21  October 1, 1974.

22         2.a.  The division shall provide by rule for the

23  periodic reporting to the division of all earnings of any

24  nature and social security income by the injured employee

25  entitled to or claiming additional compensation under

26  subparagraph 1. Neither the division nor the employer or

27  carrier shall make any payment of those additional benefits

28  provided by subparagraph 1. for any period during which the

29  employee willfully fails or refuses to report upon request by

30  the division in the manner prescribed by such rules.

31


                                  19

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






                                       CS/HB 1927, First Engrossed



  1         b.  The division shall provide by rule for the periodic

  2  reporting to the employer or carrier of all earnings of any

  3  nature and social security income by the injured employee

  4  entitled to or claiming benefits for permanent total

  5  disability. The employer or carrier is not required to make

  6  any payment of benefits for permanent total disability for any

  7  period during which the employee willfully fails or refuses to

  8  report upon request by the employer or carrier in the manner

  9  prescribed by such rules or if any employee who is receiving

10  permanent total disability benefits refuses to apply for or

11  cooperate with the employer or carrier in applying for social

12  security benefits.

13         3.  When an injured employee receives a full or partial

14  lump-sum advance of the employee's permanent total disability

15  compensation benefits, the employee's benefits under this

16  paragraph shall be computed on the employee's weekly

17  compensation rate as reduced by the lump-sum advance.

18         (3)  PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.--

19         (a)  Impairment benefits.--

20         1.  Once the employee has reached the date of maximum

21  medical improvement, impairment benefits are due and payable

22  within 20 days after the carrier has knowledge of the

23  impairment.

24         2.  The three-member panel, in cooperation with the

25  division, shall establish and use a uniform permanent

26  impairment rating schedule. This schedule must be based on

27  medically or scientifically demonstrable findings as well as

28  the systems and criteria set forth in the American Medical

29  Association's Guides to the Evaluation of Permanent

30  Impairment; the Snellen Charts, published by American Medical

31  Association Committee for Eye Injuries; and the Minnesota


                                  20

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






                                       CS/HB 1927, First Engrossed



  1  Department of Labor and Industry Disability Schedules. The

  2  schedule should be based upon objective findings. The schedule

  3  shall be more comprehensive than the AMA Guides to the

  4  Evaluation of Permanent Impairment and shall expand the areas

  5  already addressed and address additional areas not currently

  6  contained in the guides. On August 1, 1979, and pending the

  7  adoption, by rule, of a permanent schedule, Guides to the

  8  Evaluation of Permanent Impairment, copyright 1977, 1971,

  9  1988, by the American Medical Association, shall be the

10  temporary schedule and shall be used for the purposes hereof.

11  For injuries after July 1, 1990, pending the adoption by

12  division rule of a uniform disability rating schedule, the

13  Minnesota Department of Labor and Industry Disability Schedule

14  shall be used unless that schedule does not address an injury.

15  In such case, the Guides to the Evaluation of Permanent

16  Impairment by the American Medical Association shall be used.

17  Determination of permanent impairment under this schedule must

18  be made by a physician licensed under chapter 458, a doctor of

19  osteopathic medicine licensed under chapters 458 and 459, a

20  chiropractic physician licensed under chapter 460, a podiatric

21  physician licensed under chapter 461, an optometrist licensed

22  under chapter 463, or a dentist licensed under chapter 466, as

23  appropriate considering the nature of the injury. No other

24  persons are authorized to render opinions regarding the

25  existence of or the extent of permanent impairment.

26         3.  All impairment income benefits shall be based on an

27  impairment rating using the impairment schedule referred to in

28  subparagraph 2. Impairment income benefits are paid biweekly

29  weekly at a the rate equal to of 50 percent of the employee's

30  compensation rate average weekly temporary total disability

31  benefit not to exceed the maximum weekly benefit under s.


                                  21

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






                                       CS/HB 1927, First Engrossed



  1  440.12. An employee's entitlement to impairment income

  2  benefits begins the day after the employee reaches maximum

  3  medical improvement or the expiration of temporary benefits,

  4  whichever occurs earlier, and continues until the earlier of:

  5         a.  The expiration of a period computed at the rate of

  6  3 weeks for each percentage point of impairment; or

  7         b.  The death of the employee.

  8         4.  After the employee has been certified by a doctor

  9  as having reached maximum medical improvement or 6 weeks

10  before the expiration of temporary benefits, whichever occurs

11  earlier, the certifying doctor shall evaluate the condition of

12  the employee and assign an impairment rating, using the

13  impairment schedule referred to in subparagraph 2.

14  Compensation is not payable for the mental, psychological, or

15  emotional injury arising out of depression from being out of

16  work or from preexisting mental, psychological, or emotional

17  conditions. If the certification and evaluation are performed

18  by a doctor other than the employee's treating doctor, the

19  certification and evaluation must be submitted to the treating

20  doctor, and the treating doctor must indicate agreement or

21  disagreement with the certification and evaluation. The

22  certifying doctor shall issue a written report to the

23  division, the employee, and the carrier certifying that

24  maximum medical improvement has been reached, stating the

25  impairment rating, and providing any other information

26  required by the division. If the employee has not been

27  certified as having reached maximum medical improvement before

28  the expiration of 102 weeks after the date temporary total

29  disability benefits begin to accrue, the carrier shall notify

30  the treating doctor of the requirements of this section.

31


                                  22

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






                                       CS/HB 1927, First Engrossed



  1         5.  The carrier shall pay the employee impairment

  2  income benefits for a period based on the impairment rating.

  3         6.  The division may by rule specify forms and

  4  procedures governing the method of payment of wage loss and

  5  impairment benefits for dates of accidents before January 1,

  6  1994, and for dates of accidents on or after January 1, 1994.

  7         Section 11.  Paragraph (e) of subsection (1) and

  8  subsection (2) of section 440.151, Florida Statutes, are

  9  amended to read:

10         440.151  Occupational diseases.--

11         (1)

12         (e)  No compensation shall be payable for disability or

13  death resulting from tuberculosis arising out of and in the

14  course of employment by the Department of Health at a state

15  tuberculosis hospital, or aggravated by such employment, when

16  the employee had suffered from said disease at any time prior

17  to the commencement of such employment. Both causation and

18  sufficient exposure to support causation shall be proven by

19  clear and convincing evidence.

20         (2)  Whenever used in this section the term

21  "occupational disease" shall be construed to mean only a

22  disease which is due to causes and conditions which are

23  characteristic of and peculiar to a particular trade,

24  occupation, process, or employment, and to exclude all

25  ordinary diseases of life to which the general public is

26  exposed, unless the incidence of the disease is substantially

27  higher in the particular trade, occupation, process, or

28  employment than for the general public.  "Occupational

29  disease" does not mean a disease for which there are no

30  epidemiological studies showing that exposure to the specific

31  substance involved, at the levels to which the employee was


                                  23

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






                                       CS/HB 1927, First Engrossed



  1  exposed, can cause the precise disease sustained by the

  2  employee.

  3         Section 12.  Subsection (2) of section 440.185, Florida

  4  Statutes, is amended to read:

  5         440.185  Notice of injury or death; reports; penalties

  6  for violations.--

  7         (2)  Within 7 days after actual knowledge of injury or

  8  death, the employer shall report such injury or death to its

  9  carrier, in a format prescribed by the division, and shall

10  provide a copy of such report to the employee or the

11  employee's estate. The report of injury shall contain the

12  following information:

13         (a)  The name, address, and business of the employer;

14         (b)  The name, social security number, street, mailing

15  address, telephone number, and occupation of the employee;

16         (c)  The cause and nature of the injury or death;

17         (d)  The year, month, day, and hour when, and the

18  particular locality where, the injury or death occurred; and

19         (e)  A record of the employee's earnings for the 13

20  weeks prior to the date of injury; and

21         (f)(e)  Such other information as the division may

22  require.

23

24  The carrier shall, within 14 days after the employer's receipt

25  of the form reporting the injury, file the information

26  required by this subsection with the division in Tallahassee.

27  However, the division may by rule provide for a different

28  reporting system for those types of injuries which it

29  determines should be reported in a different manner and for

30  those cases which involve minor injuries requiring

31  professional medical attention in which the employee does not


                                  24

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






                                       CS/HB 1927, First Engrossed



  1  lose more than 7 days of work as a result of the injury and is

  2  able to return to the job immediately after treatment and

  3  resume regular work.

  4         Section 13.  Section 440.191, Florida Statutes, is

  5  amended to read:

  6         440.191  Employee Assistance and Ombudsman Office.--

  7         (1)(a)  In order to effect the self-executing features

  8  of the Workers' Compensation Law, this chapter shall be

  9  construed to permit injured employees and employers or the

10  employer's carrier to resolve disagreements without undue

11  expense, costly litigation, or delay in the provisions of

12  benefits. It is the duty of all who participate in the

13  workers' compensation system, including, but not limited to,

14  carriers, service providers, health care providers, managed

15  care arrangements, attorneys, employers, and employees, to

16  attempt to resolve disagreements in good faith and to

17  cooperate with the division's efforts to resolve disagreements

18  between the parties. The division may by rule prescribe

19  definitions that are necessary for the effective

20  administration of this section.

21         (b)  An Employee Assistance and Ombudsman Office is

22  created within the Division of Workers' Compensation to inform

23  and assist injured workers, employers, carriers, and health

24  care providers, and managed care arrangements in fulfilling

25  their responsibilities under this chapter. The division may by

26  rule specify forms and procedures for administering requests

27  for assistance provided by this section.

28         (c)  The Employee Assistance and Ombudsman Office,

29  Division of Workers' Compensation, shall be a resource

30  available to all employees who participate in the workers'

31  compensation system and shall take all steps necessary to


                                  25

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






                                       CS/HB 1927, First Engrossed



  1  educate and disseminate information to employees and

  2  employers. Upon receiving a notice of injury or death, the

  3  Employee Assistance and Ombudsman Office is authorized to

  4  initiate contact with the injured employee or employee's

  5  representative to discuss rights and responsibilities of the

  6  employee under this chapter and the services available through

  7  the Employee Assistance and Ombudsman Office.

  8         (2)(a)  An employee may not file a petition requesting

  9  any benefit under this chapter unless the employee has

10  exhausted the procedures for informal dispute resolution under

11  this section.

12         (a)(b)  If at any time the employer or its carrier

13  fails to provide benefits to which the employee believes she

14  or he is entitled, the employee shall contact the office to

15  request assistance in resolving the dispute. The office may

16  review petitions for benefits filed under s. 440.192 shall

17  investigate the dispute and may shall attempt to facilitate an

18  agreement between the employee and the employer or carrier.

19  The employee, the employer, and the carrier shall cooperate

20  with the office and shall timely provide the office with any

21  documents or other information that it may require in

22  connection with its efforts under this section.

23         (b)(c)  The office may compel parties to attend

24  conferences in person or by telephone in an attempt to resolve

25  disputes quickly and in the most efficient manner possible.

26  Settlement agreements resulting from such conferences must be

27  submitted to the Office of the Judges of Compensation Claims

28  for approval.

29         (c)(d)  The Employee Assistance and Ombudsman Office

30  may assign an ombudsman to assist the employee in resolving

31  the dispute. If the dispute is not resolved within 30 days


                                  26

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






                                       CS/HB 1927, First Engrossed



  1  after the employee contacts the office, The ombudsman may

  2  shall, at the employee's request, assist the employee in

  3  drafting a petition for benefits and explain the procedures

  4  for filing petitions. The division may by rule determine the

  5  method used to calculate the 30-day period. The Employee

  6  Assistance and Ombudsman Office may not represent employees

  7  before the judges of compensation claims. An employer or

  8  carrier may not pay any attorneys' fees on behalf of the

  9  employee for services rendered or costs incurred in connection

10  with this section, unless expressly authorized elsewhere in

11  this chapter.

12         Section 14.  Subsections (1), (2), (5), (7), and (8) of

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

14         440.192  Procedure for resolving benefit disputes.--

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

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

17  entitled under this chapter shall serve by certified mail upon

18  the employer, the employer's carrier, and the Office of the

19  Judges of Compensation Claims division in Tallahassee a

20  petition for benefits meeting that meets the requirements of

21  this section. The Chief Judge division shall refer the

22  petition to the Office of the judges of compensation claims.

23         (2)  Upon receipt of a petition, the Office of the

24  Judges of Compensation Claims shall review each petition and

25  shall dismiss each petition or any portion of the petition,

26  upon its own motion or upon the motion of any party, that does

27  not on its face specifically identify or itemize the

28  following:

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

30  security number of the employee.

31


                                  27

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






                                       CS/HB 1927, First Engrossed



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

  2  employer.

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

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

  5  date or dates of accident.

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

  7  responsibilities, and work the employee was performing when

  8  the injury occurred.

  9         (e)  The time period for which compensation was not

10  timely provided and the specific classification of the

11  compensation.

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

13  disability, and specific statement of all benefits or

14  compensation that the employee is seeking.

15         (g)  The specific All travel costs to which the

16  employee believes she or he is entitled, including dates of

17  travel and purpose of travel, means of transportation, and

18  mileage, including the date the request for mileage was filed

19  with the carrier and a copy of the request for mileage filed

20  with the carrier.

21         (h)  Specific listing of all medical charges alleged

22  unpaid, including the name and address of the medical

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

24  treatment.

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

26  sought and the justification for such treatment. If the

27  employee is under the care of a physician for the injury

28  identified under paragraph (c), a copy of the physician's

29  request, authorization, or recommendation for treatment, care,

30  or attendance must accompany the petition.

31


                                  28

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






                                       CS/HB 1927, First Engrossed



  1         (j)  Specific explanation of any other disputed issue

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

  3  upon.

  4         (k)  Any other information and documentation the Chief

  5  Judge may require by rule.

  6

  7  The dismissal of any petition or portion of the petition under

  8  this section is without prejudice and does not require a

  9  hearing.

10         (5)  All motions to dismiss must state with

11  particularity the basis for the motion. The judge of

12  compensation claims shall enter an order upon such motions

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

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

15  specificity under this subsection, the claimant must be

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

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

18  for lack of specificity under this section not asserted within

19  45 30 days after receipt of the petition for benefits are

20  thereby waived.

21         (7)  Notwithstanding the provisions of s. 440.34, a

22  judge of compensation claims may not award attorney's fees

23  payable by the carrier for services expended or costs incurred

24  prior to the filing of a petition that does not meeting meet

25  the requirements of this section.

26         (8)  Within 30 14 days after receipt of a petition for

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

28  requested benefits without prejudice to its right to deny

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

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

31  Judges of Compensation Claims division. The carrier must list


                                  29

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






                                       CS/HB 1927, First Engrossed



  1  all benefits requested but not paid and explain its

  2  justification for nonpayment in the response to petition

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

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

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

  6  material facts relevant to the issue of compensability that

  7  could not have been discovered through reasonable

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

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

10  employer, and claimant by certified mail.

11         Section 15.  Subsections (4) and (11) of section

12  440.20, Florida Statutes, are amended to read:

13         440.20  Time for payment of compensation; penalties for

14  late payment.--

15         (4)  If the carrier is uncertain of its obligation to

16  provide benefits or compensation, it may initiate payment

17  without prejudice and without admitting liability. The carrier

18  shall immediately and in good faith commence investigation of

19  the employee's entitlement to benefits under this chapter and

20  shall admit or deny compensability within 120 days after the

21  initial provision of compensation or benefits as required by

22  subsection (2) or s. 440.192(8). Upon commencement of payment

23  as required by subsection (2) or s. 440.192(8), the carrier

24  shall provide written notice to the employee that it has

25  elected to pay all or part of the claim pending further

26  investigation, and that it will advise the employee of claim

27  acceptance or denial within 120 days. A carrier that fails to

28  deny compensability within 120 days after the initial

29  provision of benefits or payment of compensation, as required

30  by subsection (2) or s. 440.192(8), waives the right to deny

31  compensability, unless the carrier can establish material


                                  30

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






                                       CS/HB 1927, First Engrossed



  1  facts relevant to the issue of compensability that it could

  2  not have discovered through reasonable investigation within

  3  the 120-day period. The initial provision of compensation or

  4  benefits, for purposes of this subsection, shall mean the

  5  first installment of compensation or benefits to be paid by

  6  the carrier under subsection (2) or pursuant to a petition of

  7  benefits under s. 440.192(8).

  8         (11)(a)  When a claimant is not represented by counsel,

  9  upon joint petition of all interested parties, a lump-sum

10  payment in exchange for the employer's or carrier's release

11  from liability for future medical expenses, as well as future

12  payments of compensation expenses and any other benefits

13  provided under this chapter, shall be allowed at any time in

14  any case in which the employer or carrier has filed a written

15  notice of denial within 120 days after the employer receives

16  notice date of the injury, and the judge of compensation

17  claims at a hearing to consider the settlement proposal finds

18  a justiciable controversy as to legal or medical

19  compensability of the claimed injury or the alleged accident.

20  The employer or carrier may not pay any attorney's fees on

21  behalf of the claimant for any settlement under this section

22  unless expressly authorized elsewhere in this chapter. Upon

23  the joint petition of all interested parties and after giving

24  due consideration to the interests of all interested parties,

25  the judge of compensation claims may enter a compensation

26  order approving and authorizing the discharge of the liability

27  of the employer for compensation and remedial treatment, care,

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

29  payment of a lump sum. The judge of compensation claims shall

30  not approve settlement proposals, including any stipulations

31  or agreements between the parties or between a claimant and


                                  31

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






                                       CS/HB 1927, First Engrossed



  1  his or her attorney related to a settlement, which provide for

  2  an attorney's fee in excess of the amount permitted in s.

  3  440.34. Such a compensation order so entered upon joint

  4  petition of all interested parties is not subject to

  5  modification or review under s. 440.28. If the settlement

  6  proposal together with supporting evidence is not approved by

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

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

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

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

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

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

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

14  such reports filed under this subsection annually by September

15  15.

16         (b)  When a claimant is not represented by counsel,

17  upon joint petition of all interested parties, a lump-sum

18  payment in exchange for the employer's or carrier's release

19  from liability for future medical expenses, as well as future

20  payments of compensation and rehabilitation expenses, and any

21  other benefits provided under this chapter, may be allowed at

22  any time in any case after the injured employee has attained

23  maximum medical improvement. An employer or carrier may not

24  pay any attorney's fees on behalf of the claimant for any

25  settlement, unless expressly authorized elsewhere in this

26  chapter. The judge of compensation claims shall not approve

27  settlement proposals, including any stipulations or agreements

28  between the parties or between a claimant and his or her

29  attorney related to the settlement proposal, which provide for

30  an attorney's fee in excess of the amount permitted in s.

31  440.34. A compensation order so entered upon joint petition of


                                  32

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






                                       CS/HB 1927, First Engrossed



  1  all interested parties shall not be subject to modification or

  2  review under s. 440.28. However, a judge of compensation

  3  claims is not required to approve any award for lump-sum

  4  payment when it is determined by the judge of compensation

  5  claims that the payment being made is in excess of the value

  6  of benefits the claimant would be entitled to under this

  7  chapter. The judge of compensation claims shall make or cause

  8  to be made such investigations as she or he considers

  9  necessary, in each case in which the parties have stipulated

10  that a proposed final settlement of liability of the employer

11  for compensation shall not be subject to modification or

12  review under s. 440.28, to determine whether such final

13  disposition will definitely aid the rehabilitation of the

14  injured worker or otherwise is clearly for the best interests

15  of the person entitled to compensation and, in her or his

16  discretion, may have an investigation made by the

17  Rehabilitation Section of the Division of Workers'

18  Compensation. The joint petition and the report of any

19  investigation so made will be deemed a part of the proceeding.

20  An employer shall have the right to appear at any hearing

21  pursuant to this subsection which relates to the discharge of

22  such employer's liability and to present testimony at such

23  hearing. The carrier shall provide reasonable notice to the

24  employer of the time and date of any such hearing and inform

25  the employer of her or his rights to appear and testify. When

26  the claimant is represented by counsel or when the claimant

27  and carrier or employer are represented by counsel, final

28  approval of the lump-sum settlement agreement, as provided for

29  in a joint petition and stipulation, shall be approved by

30  entry of an order within 7 days after the filing of such joint

31  petition and stipulation without a hearing, unless the judge


                                  33

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






                                       CS/HB 1927, First Engrossed



  1  of compensation claims determines, in her or his discretion,

  2  that additional testimony is needed before such settlement can

  3  be approved or disapproved and so notifies the parties. The

  4  probability of the death of the injured employee or other

  5  person entitled to compensation before the expiration of the

  6  period during which such person is entitled to compensation

  7  shall, in the absence of special circumstances making such

  8  course improper, be determined in accordance with the most

  9  recent United States Life Tables published by the National

10  Office of Vital Statistics of the United States Department of

11  Health and Human Services. The probability of the happening of

12  any other contingency affecting the amount or duration of the

13  compensation, except the possibility of the remarriage of a

14  surviving spouse, shall be disregarded. As a condition of

15  approving a lump-sum payment to a surviving spouse, the judge

16  of compensation claims, in the judge of compensation claims'

17  discretion, may require security which will ensure that, in

18  the event of the remarriage of such surviving spouse, any

19  unaccrued future payments so paid may be recovered or recouped

20  by the employer or carrier. Such applications shall be

21  considered and determined in accordance with s. 440.25.

22         (c)  Notwithstanding s. 440.21(2), when a claimant is

23  represented by counsel, the claimant may waive all rights to

24  all benefits under this chapter by entering into a settlement

25  agreement releasing the employer and the carrier from

26  liability for workers' compensation benefits in exchange for a

27  lump-sum payment to the claimant. The settlement agreement

28  requires approval by the judge of compensation claims only as

29  to the attorney's fees paid to the claimant's attorney by the

30  claimant. The parties need not submit any information or

31  documentation in support of the settlement, except as needed


                                  34

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






                                       CS/HB 1927, First Engrossed



  1  to justify the amount of the attorney's fees. Neither the

  2  employer nor the carrier is responsible for any attorney's

  3  fees relating to the settlement and release of claims under

  4  this section. Payment of the lump-sum settlement amount must

  5  be made within 14 days after the date the judge of

  6  compensation claims mails the order approving the attorney's

  7  fees. Any order entered by a judge of compensation claims

  8  approving the attorney's fees as set out in the settlement

  9  under this subsection is not considered to be an award and is

10  not subject to modification or review. The judge of

11  compensation claims shall report these settlements to the

12  chief judge in accordance with the requirements set forth in

13  paragraphs (a) and (b). Settlements entered into under this

14  subsection are valid and apply to all dates of accident.

15         (d)  With respect to any lump-sum settlement under this

16  subsection, a judge of compensation claims must consider

17  whether the settlement provides for appropriate recovery of

18  any child support arrearage. Neither the employer nor the

19  carrier has a duty to investigate or collect information

20  regarding child support arrearages.

21         (e)(c)  This section applies to all claims that the

22  parties have not previously settled, regardless of the date of

23  accident.

24         Section 16.  Subsections (1), (3), and (4) of section

25  440.25, Florida Statutes, are amended to read:

26         440.25  Procedures for mediation and hearings.--

27         (1)  Within 90 21 days after a petition for benefits is

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

29  petition shall be held. Within 40 7 days after such petition

30  is filed, the judge of compensation claims shall notify the

31  interested parties by order that a mediation conference


                                  35

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






                                       CS/HB 1927, First Engrossed



  1  concerning such petition will be held unless the parties have

  2  notified the Office of the Judges of Compensation Claims that

  3  a mediation has been held. Such order must notice shall give

  4  the date by which, time, and location of the mediation

  5  conference must be held. Such order notice may be served

  6  personally upon the interested parties or may be sent to the

  7  interested parties by mail. Continuances may be granted only

  8  if the requesting party demonstrates to the judge of

  9  compensation claims that the reason for requesting the

10  continuance arises from circumstances beyond the party's

11  control. Any order granting a continuance must set forth the

12  date of the rescheduled mediation conference. A mediation

13  conference may not be used solely for the purpose of mediating

14  attorney's fees.

15         (3)(a)  Such mediation conference shall be conducted

16  informally and shall does not require the use of formal rules

17  of evidence or procedure. Any information from the files,

18  reports, case summaries, mediator's notes, or other

19  communications or materials, oral or written, relating to a

20  mediation conference under this section obtained by any person

21  performing mediation duties is privileged and confidential and

22  may not be disclosed without the written consent of all

23  parties to the conference. Any research or evaluation effort

24  directed at assessing the mediation program activities or

25  performance must protect the confidentiality of such

26  information. Each party to a mediation conference has a

27  privilege during and after the conference to refuse to

28  disclose and to prevent another from disclosing communications

29  made during the conference whether or not the contested issues

30  are successfully resolved. This subsection and paragraphs

31  (4)(a) and (b) shall not be construed to prevent or inhibit


                                  36

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






                                       CS/HB 1927, First Engrossed



  1  the discovery or admissibility of any information that is

  2  otherwise subject to discovery or that is admissible under

  3  applicable law or rule of procedure, except that any conduct

  4  or statements made during a mediation conference or in

  5  negotiations concerning the conference are inadmissible in any

  6  proceeding under this chapter.

  7         (b)1.  Unless the parties conduct a private mediation

  8  under subparagraph 2., mediation shall be conducted by a

  9  mediator selected by the Deputy Chief Judge from among

10  mediators The Chief Judge shall select a mediator. The

11  mediator shall be employed on a full-time basis by the Office

12  of the Judges of Compensation Claims. A mediator must be a

13  member of The Florida Bar for at least 5 years and must

14  complete a mediation training program approved by the Chief

15  Judge. Adjunct mediators may be employed by the Office of the

16  Judges of Compensation Claims on an as-needed basis and shall

17  be selected from a list prepared by the Chief Judge. An

18  adjunct mediator must be independent of all parties

19  participating in the mediation conference. An adjunct mediator

20  must be a member of The Florida Bar for at least 5 years and

21  must complete a mediation training program approved by the

22  Chief Judge. An adjunct mediator shall have access to the

23  office, equipment, and supplies of the judge of compensation

24  claims in each district. This subparagraph is repealed January

25  1, 2003.

26         2.a.  With respect to any mediation occurring on or

27  after January 1, 2003; or

28         b.  If the parties agree or if no mediators under

29  subparagraph 1. are available to conduct the required

30  mediation within the period specified in this section,

31


                                  37

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






                                       CS/HB 1927, First Engrossed



  1  the parties shall hold a mediation conference at the carrier's

  2  expense within the 90-day period set for mediation. The

  3  mediation conference shall be conducted by a mediator

  4  certified under s. 44.106. If the parties do not agree upon a

  5  mediator within 10 days after the date of the order, the

  6  claimant shall notify the judge in writing and the judge shall

  7  appoint a mediator under this subparagraph within 7 days. In

  8  the event both parties agree, the results of the mediation

  9  conference shall be binding and neither party shall have a

10  right to appeal the results. In the event either party refuses

11  to agree to the results of the mediation conference, the

12  results of the mediation conference as well as the testimony,

13  witnesses, and evidence presented at the conference shall not

14  be admissible at any subsequent proceeding on the claim. The

15  mediator shall not be called in to testify or give deposition

16  to resolve any claim for any hearing before the judge of

17  compensation claims. The employer may be represented by an

18  attorney at the mediation conference if the employee is also

19  represented by an attorney at the mediation conference.

20         (c)  The parties shall complete the pretrial

21  stipulations before the conclusion of the mediation conference

22  if the claims, except for attorney's fees and costs, have not

23  been settled and if any claims in any filed petition remain

24  unresolved.  The judge of compensation claims may sanction a

25  party or both parties for failure to complete the pretrial

26  stipulations before the conclusion of the mediation

27  conference.

28         (4)(a)  If the parties fail to agree upon written

29  submission of pretrial stipulations at the mediation

30  conference, on the 10th day following commencement of

31  mediation, the questions in dispute have not been resolved,


                                  38

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






                                       CS/HB 1927, First Engrossed



  1  the judge of compensation claims shall order a pretrial

  2  hearing to occur within 14 days after the date of mediation

  3  ordered by the judge of compensation claims hold a pretrial

  4  hearing. The judge of compensation claims shall give the

  5  interested parties at least 7 days' advance notice of the

  6  pretrial hearing by mail. At the pretrial hearing, the judge

  7  of compensation claims shall, subject to paragraph (b), set a

  8  date for the final hearing that allows the parties at least 30

  9  days to conduct discovery unless the parties consent to an

10  earlier hearing date.

11         (b)  The final hearing must be held and concluded

12  within 90 45 days after the mediation conference is held

13  pretrial hearing. Continuances may be granted only if the

14  requesting party demonstrates to the judge of compensation

15  claims that the reason for requesting the continuance arises

16  from circumstances beyond the party's control. Any order

17  granting a continuance must set forth the date and time of the

18  rescheduled hearing. If a judge of compensation claims grants

19  two or more continuances to a requesting party, the judge of

20  compensation claims shall report such continuances to the

21  Deputy Chief Judge.

22         (c)  The judge of compensation claims shall give the

23  interested parties at least 7 days' advance notice of the

24  final hearing, served upon the interested parties by mail.

25         (d)  The final hearing shall be held within 210 days

26  after receipt of the petition for benefits in the county where

27  the injury occurred, if the injury occurred in this state,

28  unless otherwise agreed to between the parties and authorized

29  by the judge of compensation claims in the county where the

30  injury occurred. If the injury occurred outside without the

31  state and is one for which compensation is payable under this


                                  39

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






                                       CS/HB 1927, First Engrossed



  1  chapter, then the final hearing above referred to may be held

  2  in the county of the employer's residence or place of

  3  business, or in any other county of the state that which will,

  4  in the discretion of the Chief Judge, be the most convenient

  5  for a hearing. The final hearing shall be conducted by a judge

  6  of compensation claims, who shall, within 30 14 days after

  7  final hearing or closure of the hearing record, unless

  8  otherwise agreed by the parties, enter a final order on the

  9  merits of the disputed issues determine the dispute in a

10  summary manner. The judge of compensation claims may enter an

11  abbreviated final order in cases when compensability is not

12  disputed. Either party may request separate findings of fact

13  and conclusions of law. At the final such hearing, the

14  claimant and employer may each present evidence in respect of

15  the claims presented by the petition for benefits such claim

16  and may be represented by any attorney authorized in writing

17  for such purpose. When there is a conflict in the medical

18  evidence submitted at the hearing, the provisions of s. 440.13

19  shall apply. The report or testimony of the expert medical

20  advisor shall be made a part of the record of the proceeding

21  and shall be given the same consideration by the judge of

22  compensation claims as is accorded other medical evidence

23  submitted in the proceeding; and all costs incurred in

24  connection with such examination and testimony may be assessed

25  as costs in the proceeding, subject to the provisions of s.

26  440.13. No judge of compensation claims may make a finding of

27  a degree of permanent impairment that is greater than the

28  greatest permanent impairment rating given the claimant by any

29  examining or treating physician, except upon stipulation of

30  the parties.

31


                                  40

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






                                       CS/HB 1927, First Engrossed



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

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

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

  4  the order need not include any other reason or justification

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

  6  office of the division at Tallahassee. A copy of such

  7  compensation order shall be sent by mail to the parties and

  8  attorneys of record at the last known address of each, with

  9  the date of mailing noted thereon.

10         (f)  Each judge of compensation claims is required to

11  submit a special report to the Chief Judge in each contested

12  workers' compensation case in which the case is not determined

13  within 14 days of final hearing. Said form shall be provided

14  by the Chief Judge and shall contain the names of the judge of

15  compensation claims and of the attorneys involved and a brief

16  explanation by the judge of compensation claims as to the

17  reason for such a delay in issuing a final order. The Chief

18  Judge shall compile these special reports into an annual

19  public report to the Governor, the Secretary of Labor and

20  Employment Security, the Legislature, The Florida Bar, and the

21  appellate district judicial nominating commissions.

22         (g)  Judges of compensation claims shall adopt and

23  enforce uniform local rules for workers' compensation.

24         (g)(h)  Notwithstanding any other provision of this

25  section, the judge of compensation claims may require the

26  appearance of the parties and counsel before her or him

27  without written notice for an emergency conference where there

28  is a bona fide emergency involving the health, safety, or

29  welfare of an employee. An emergency conference under this

30  section may result in the entry of an order or the rendering

31  of an adjudication by the judge of compensation claims.


                                  41

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






                                       CS/HB 1927, First Engrossed



  1         (h)(i)  To expedite dispute resolution and to enhance

  2  the self-executing features of the Workers' Compensation Law,

  3  the Chief Judge shall make provision by rule or order for the

  4  resolution of appropriate motions by judges of compensation

  5  claims without oral hearing upon submission of brief written

  6  statements in support and opposition, and for expedited

  7  discovery and docketing. Unless the judge of compensation

  8  claims orders a hearing under paragraph (i), claims related to

  9  the determination of pay under s. 440.14 shall be resolved

10  under this paragraph.

11         (i)(j)  To further expedite dispute resolution and to

12  enhance the self-executing features of the system, those

13  petitions filed in accordance with s. 440.192 that involve a

14  claim for benefits of $5,000 or less shall, in the absence of

15  compelling evidence to the contrary, be presumed to be

16  appropriate for expedited resolution under this paragraph; and

17  any other claim filed in accordance with s. 440.192, upon the

18  written agreement of both parties and application by either

19  party, may similarly be resolved under this paragraph. Claims

20  for medical-only benefits of $5,000 or less, or medical

21  mileage reimbursement shall, in the absence of compelling

22  evidence to the contrary, be resolved through the expedited

23  dispute resolution process under this paragraph. For purposes

24  of expedited resolution pursuant to this paragraph, the Chief

25  Judge shall make provision by rule or order for expedited and

26  limited discovery and expedited docketing in such cases. At

27  least 15 days prior to hearing, the parties shall exchange and

28  file with the judge of compensation claims a pretrial outline

29  of all issues, defenses, and witnesses on a form promulgated

30  by the Chief Judge; provided, in no event shall such hearing

31  be held without 15 days' written notice to all parties. No


                                  42

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






                                       CS/HB 1927, First Engrossed



  1  pretrial hearing shall be held. The judge of compensation

  2  claims shall limit all argument and presentation of evidence

  3  at the hearing to a maximum of 30 minutes, and such hearings

  4  shall not exceed 30 minutes in length. Neither party shall be

  5  required to be represented by counsel. The employer or carrier

  6  may be represented by an adjuster or other qualified

  7  representative. The employer or carrier and any witness may

  8  appear at such hearing by telephone. The rules of evidence

  9  shall be liberally construed in favor of allowing introduction

10  of evidence.

11         (j)  A judge of compensation claims, either upon the

12  motion of a party or the judge's own motion, may dismiss a

13  petition for lack of prosecution if no petitions, responses,

14  motions, orders, requests for hearings, or notices of

15  deposition have been filed for a period of 12 months, unless

16  good cause is shown. Dismissals for lack of prosecution are

17  without prejudice and do not require a hearing.

18         (k)  A judge of compensation claims may not award

19  interest on unpaid medical bills, nor may the amount of such

20  bills be used to calculate the amount of interest awarded.

21

22  Regardless of the date benefits were initially requested,

23  attorney's fees do not attach under this subsection until 30

24  days from the date the carrier or employer, if self-insured,

25  receives the petition.

26         Section 17.  Subsection (4) of section 440.29, Florida

27  Statutes, is amended to read:

28         440.29  Procedure before the judge of compensation

29  claims.--

30         (4)  All medical reports of authorized treating health

31  care providers or independent medical examiners, whose medical


                                  43

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






                                       CS/HB 1927, First Engrossed



  1  opinion is submitted under s. 440.13(5)(e), relating to the

  2  claimant and subject accident shall be received into evidence

  3  by the judge of compensation claims upon proper motion.

  4  However, such records must be served on the opposing party at

  5  least 30 days before the final hearing. This section does not

  6  limit any right of further discovery, including, but not

  7  limited to, depositions.

  8         Section 18.  Subsections (1) and (3) of section 440.34,

  9  Florida Statutes, are amended to read:

10         440.34  Attorney's fees; costs.--

11         (1)  A fee, gratuity, or other consideration may not be

12  paid for services rendered for a claimant in connection with

13  any proceedings arising under this chapter, unless approved as

14  reasonable by the judge of compensation claims or court having

15  jurisdiction over such proceedings. Except as provided by this

16  subsection, any attorney's fee approved by a judge of

17  compensation claims for services rendered to a claimant must

18  equal to 20 percent of the first $5,000 of the amount of the

19  benefits secured, 15 percent of the next $5,000 of the amount

20  of the benefits secured, 10 percent of the remaining amount of

21  the benefits secured to be provided during the first 10 years

22  after the date the claim is filed, and 5 percent of the

23  benefits secured after 10 years. However, in medical-only

24  petitions, the judge of compensation claims shall consider the

25  following factors in each case and may approve an additional

26  increase or decrease the attorney's fee, not to exceed $1,000

27  per accident based on a reasonable hourly rate, if the judge

28  of compensation claims expressly finds that the attorney's

29  fee, based on benefits secured, fails to fairly compensate the

30  attorney and, in her or his judgment, the circumstances of the

31  particular case warrant such action.  The judge of


                                  44

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






                                       CS/HB 1927, First Engrossed



  1  compensation claims shall not approve a compensation order, a

  2  joint stipulation for lump-sum settlement, a stipulation or

  3  agreement between a claimant and his or her attorney, or any

  4  other agreement related to benefits under this chapter that

  5  provides for an attorney's fee in excess of the amount

  6  permitted by this section.:

  7         (a)  The time and labor required, the novelty and

  8  difficulty of the questions involved, and the skill requisite

  9  to perform the legal service properly.

10         (b)  The fee customarily charged in the locality for

11  similar legal services.

12         (c)  The amount involved in the controversy and the

13  benefits resulting to the claimant.

14         (d)  The time limitation imposed by the claimant or the

15  circumstances.

16         (e)  The experience, reputation, and ability of the

17  lawyer or lawyers performing services.

18         (f)  The contingency or certainty of a fee.

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

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

21  taxed against the employer the reasonable costs of such

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

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

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

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

26  carrier or employer:

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

28  petition claim for medical benefits only, if the claimant has

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

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

31  benefits, arising out of the same accident; or


                                  45

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






                                       CS/HB 1927, First Engrossed



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

  2  a response to petition notice of denial with the Office of the

  3  Judges of Compensation Claims division and the injured person

  4  has employed an attorney in the successful prosecution of the

  5  claim; or

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

  7  denies that an injury occurred for which compensation benefits

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

  9  compensability; or

10         (d)  In cases where the claimant successfully prevails

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

12

13  Regardless of the date benefits were initially requested,

14  attorney's fees shall not attach under this subsection until

15  30 days from the date the carrier or employer, if

16  self-insured, receives the petition. In applying the factors

17  set forth in subsection (1) to cases arising under paragraphs

18  (a), (b), (c), and (d), the judge of compensation claims must

19  only consider only such benefits and the time reasonably spent

20  in obtaining them as were secured for the claimant within the

21  scope of paragraphs (a), (b), (c), and (d).

22         Section 19.  Section 440.345, Florida Statutes, is

23  amended to read:

24         440.345  Reporting of attorney's fees.--All fees paid

25  to attorneys for services rendered under this chapter shall be

26  reported to the division as the division requires by rule. The

27  division shall annually summarize the such data in a report to

28  the Governor, the President of the Senate, and the Speaker of

29  the House of Representatives Workers' Compensation Oversight

30  Board.

31


                                  46

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






                                       CS/HB 1927, First Engrossed



  1         Section 20.  Subsection (8) is added to section 440.39,

  2  Florida Statutes, to read:

  3         440.39  Compensation for injuries when third persons

  4  are liable.--

  5         (8)  This section does not impose on the carrier a duty

  6  to preserve evidence pertaining to the industrial accident or

  7  to injuries arising from such accident.

  8         Section 21.  Effective October 1, 2001, subsections (1)

  9  and (2) of section 440.4416, Florida Statutes, are amended to

10  read:

11         440.4416  Workers' Compensation Oversight Board.--

12         (1)  There is created within the department of Labor

13  and Employment Security the Workers' Compensation Oversight

14  Board. The board shall be composed of the following members,

15  each of whom has knowledge of, or experience with, the

16  workers' compensation system:

17         (a)  Five Six members selected by the Governor, none of

18  whom shall be a member of the Legislature at the time of

19  appointment, consisting of the following:

20         1.  One representative Two representatives of the

21  workers' compensation insurance industry employers.

22         2.  One representative Four representatives of workers'

23  compensation health care providers employees, one of whom must

24  be a representative of an employee's union whose members are

25  covered by workers' compensation pursuant to this chapter.

26         3.  One representative of workers' compensation

27  claimant's attorneys.

28         4.  One representative of workers' compensation defense

29  attorneys.

30         5.  One representative who is either an employer or a

31  nonsalaried and nonmanagement employee.


                                  47

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






                                       CS/HB 1927, First Engrossed



  1         (b)  Two Three members selected by the President of the

  2  Senate, none of whom shall be members of the Legislature at

  3  the time of appointment, consisting of:

  4         1.  A representative of employers who employs at least

  5  10 employees in Florida for which workers' compensation

  6  coverage is provided pursuant to this chapter, and who is a

  7  licensed general contractor actively engaged in the

  8  construction industry in this state.

  9         1.2.  A representative of employers who employs fewer

10  than 25 10 employees in Florida for which workers'

11  compensation coverage is provided pursuant to this chapter.

12         2.3.  A representative of employees who is a

13  nonsalaried and nonmanagement employee of an employer

14  employing at least 25 persons.

15         (c)  Two Three members selected by the Speaker of the

16  House of Representatives, none of whom shall be members of the

17  Legislature at the time of appointment, consisting of:

18         1.  A representative of employers who employs fewer

19  than 10 employees in Florida and who is a licensed general

20  contractor actively engaged in the construction industry in

21  this state for which workers' compensation coverage is

22  provided pursuant to this chapter.

23         1.2.  A representative of employers who employs at

24  least 25 10 employees in Florida for which workers'

25  compensation coverage is provided pursuant to this chapter.

26         2.3.  A representative of employees who is a

27  nonsalaried and nonmanagement employee of an employer

28  employing fewer than 25 persons.

29         (d)  Additionally, the Insurance Commissioner and the

30  secretary of the Department of Labor and Employment Security

31  shall be nonvoting ex officio members.


                                  48

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






                                       CS/HB 1927, First Engrossed



  1         (d)(e)  The terms of all current board members shall

  2  expire December 31, 2001. New original appointments to the

  3  board shall be made on or before January 1, 2002 1994.

  4  Vacancies in the membership of the board shall be filled in

  5  the same manner as the original appointments. Except as to ex

  6  officio members of the board, Three appointees of the

  7  Governor, one appointee two appointees of the President of the

  8  Senate, and one appointee two appointees of the Speaker of the

  9  House of Representatives shall serve for terms of 2 years, and

10  the remaining appointees shall serve for terms of 4 years.

11  Thereafter, all members shall serve for terms of 4 years;

12  except that a vacancy shall be filled by appointment for the

13  remainder of the term. The board shall have an organizational

14  meeting on or before March 1, 1994, the time and place of such

15  meeting to be determined by the Governor.

16         (e)(f)  Each member is accountable to the Governor for

17  proper performance of his or her duties as a member of the

18  board. The Governor may remove from office any member for

19  malfeasance, misfeasance, neglect of duty, drunkenness,

20  incompetence, permanent inability to perform official duties,

21  or for pleading guilty or nolo contendere to, or having been

22  adjudicated guilty of, a first degree misdemeanor or a felony.

23         (f)(g)  A vacancy shall occur upon failure of a member

24  to attend four consecutive meetings of the board or 50 percent

25  of the meetings of the board during a 12-month period, unless

26  the board by majority votes to excuse the absence of such

27  member.

28         (2)  POWERS AND DUTIES; ORGANIZATION.--

29         (a)  The board shall have all the powers necessary and

30  convenient to carry out and effectuate the purposes of this

31  section, including, but not limited to, the power to:


                                  49

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






                                       CS/HB 1927, First Engrossed



  1         1.  Conduct public hearings.

  2         2.  Report to the Legislature by January 1, 1995, as to

  3  the feasibility of a return-to-work program that includes

  4  incentives for employers who encourage such a program and

  5  disincentives for employers who hinder such a program.

  6         2.3.  Prescribe qualifications for board employees.

  7         3.4.  Appear on its own behalf before other boards,

  8  commissions, or agencies of the state or Federal Government.

  9         4.5.  Make and execute contracts to the extent that

10  such contracts are consistent with duties and powers set forth

11  in this section and elsewhere in the law of this state.

12         (b)  The board shall adopt bylaws, formulate workers'

13  compensation legislation or amendments, review, advise, and

14  appear before the Legislature in connection with legislation

15  that impacts the workers' compensation system, advise the

16  division on policy, administrative and legislative issues, and

17  appear before other state or federal agencies in connection

18  with matters impacting the workers' compensation system.

19         (c)  The Governor board shall select a chair from among

20  the employer or employee members of the board. The member

21  designated as chair who shall serve as chair for a term period

22  of 2 years or and until a successor is elected and qualified,

23  unless removed from the board by the Governor. The chair shall

24  be the chief administrative officer of the board and shall

25  have the authority to plan, direct, coordinate, and execute

26  the powers and duties of the board.

27         (d)  The board shall hold at least one regularly

28  scheduled meeting each quarter and other such meetings during

29  the year as it deems necessary, except that the chair, a

30  quorum of the board, or the division may call meetings. The

31  board shall hold at least two meetings a year outside Leon


                                  50

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






                                       CS/HB 1927, First Engrossed



  1  County. The board shall maintain transcripts of each meeting.

  2  Such transcripts shall be available to any interested person

  3  in accordance with chapter 119.

  4         (e)  The board shall approve the bylaws or amendments

  5  thereto by unanimous vote. All other board actions or

  6  recommendations shall be approved by not less than a majority

  7  vote of the members present employee representatives and

  8  majority vote of employer representatives, unless the bylaws

  9  otherwise provide.

10         (f)  The board shall submit all formal reports and

11  publications made by the board to the division at least 30

12  days prior to the release or publication of the information.

13  The board shall include in all formal reports and publications

14  any response from the division.

15         Section 22.  Section 627.0915, Florida Statutes, is

16  amended to read:

17         627.0915  Rate filings; workers' compensation,

18  drug-free workplace, and safe employers.--The Department of

19  Insurance shall approve rating plans for workers' compensation

20  insurance that give specific identifiable consideration in the

21  setting of rates to employers that either implement a

22  drug-free workplace program pursuant to rules adopted by the

23  Division of Workers' Compensation of the Department of Labor

24  and Employment Security or implement a safety program pursuant

25  to provisions of the rating plan approved by the Division of

26  Safety pursuant to rules adopted by the Division of Safety of

27  the Department of Labor and Employment Security or implement

28  both a drug-free workplace program and a safety program. The

29  Division of Safety may by rule require that the client of a

30  help supply services company comply with the essential

31  requirements of a workplace safety program as a condition for


                                  51

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






                                       CS/HB 1927, First Engrossed



  1  receiving a premium credit. The plans must take effect January

  2  1, 1994, must be actuarially sound, and must state the savings

  3  anticipated to result from such drug-testing and safety

  4  programs.

  5         Section 23.  The amendments to ss. 440.02 and 440.15 in

  6  this act shall not be construed to affect any determination of

  7  disability under s. 112.18, 112.181, or s. 112.19, Florida

  8  Statutes.

  9         Section 24.  Subsection (3) of section 440.45, Florida

10  Statutes, is repealed.

11         Section 25.  If any provision of this act or its

12  application to any person or circumstance is held invalid, the

13  invalidity does not affect other provisions or applications of

14  the act which can be given effect without the invalid

15  provision or application, and to this end the provisions of

16  this act are declared severable.

17         Section 26.  Except as otherwise provided herein, this

18  act shall take effect January 1, 2002.

19

20

21

22

23

24

25

26

27

28

29

30

31


                                  52

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