Senate Bill sb2266

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2001                                  SB 2266

    By Senator Peaden





    1-892-01

  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 61.13, F.S.; providing that

  4         workers' compensation benefits are not exempt

  5         from child-support claims; amending s. 61.30,

  6         F.S.; providing that workers' compensation

  7         benefits and settlements count as income under

  8         child-support guidelines; amending s. 440.02,

  9         F.S.; defining terms; amending s. 440.05, F.S.;

10         substantially revising provisions relating to

11         exemption from ch. 440, F.S.; amending s.

12         440.09, F.S.; providing guidelines for

13         coverage; amending s. 440.10, F.S.; revising

14         liability for compensation; revising criteria

15         for conclusively presuming that a person is an

16         independent contractor; amending s. 440.13,

17         F.S.; providing maximum amounts that a family

18         member may receive for nonprofessional

19         attendant care; revising the standard for

20         determining when an employer must pay for

21         certain medical treatment; revising provisions

22         relating to provider eligibility and

23         authorization; allowing a carrier to provide

24         certain financial incentives for reducing

25         service costs and utilization; revising

26         provisions relating to independent medical

27         examinations; placing limitations on medical

28         opinions in cases involving occupational

29         disease or repetitive trauma; adding opinions

30         of peer-review consultants to the list of

31         admissible medical opinions; amending s.

                                  1

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         440.134, F.S.; providing that workers'

  2         compensation managed care arrangements are

  3         optional rather than mandatory; amending s.

  4         440.14, F.S.; redefining the term

  5         "substantially the whole of 13 weeks" for

  6         purposes of determination of pay; providing

  7         requirements that must be met if concurrent

  8         employment is used in calculating the average

  9         weekly wage; amending s. 440.15, F.S.;

10         prescribing the elements of a compensable

11         injury eligible for permanent total benefits;

12         changing the period for which and the rate at

13         which impairment income benefits are paid;

14         providing that compensation is not payable for

15         certain conditions; amending s. 440.151, F.S.;

16         providing an evidentiary standard relating to

17         occupational diseases; excluding certain

18         conditions from the term "occupational

19         disease"; amending s. 440.185, F.S.; changing

20         procedures relating to carriers' filings with

21         the division; amending s. 440.191, F.S.;

22         allowing the Employee Assistance Office to

23         participate in an early intervention program;

24         providing that specified claims are to be

25         determined by a judge of compensation claims,

26         without the parties being represented by

27         counsel; providing for review; providing for a

28         petition for benefits; amending procedures

29         relating to disputed issues; amending s.

30         440.192, F.S.; amending procedures for

31         resolving benefit disputes; allowing the

                                  2

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         dismissal of a portion of a petition; replacing

  2         a notice of denial with a response to petition;

  3         amending s. 440.20, F.S.; providing procedures

  4         for a carrier to fulfill its obligation to pay

  5         compensation directly to the employee;

  6         extending the time limit for paying

  7         compensation; replacing the term "award" with

  8         the term "order"; providing circumstances in

  9         which a hearing is unnecessary; providing

10         procedures applicable when a claimant is not

11         represented by an attorney; amending s. 440.22,

12         F.S.; providing that the exemption of workers'

13         compensation claims from creditors does not

14         apply to child support or alimony; amending s.

15         440.25, F.S.; revising procedures for mediation

16         and hearings; providing for a Motion to Dismiss

17         for Lack of Prosecution; prohibiting the award

18         of interest on unpaid medical bills; amending

19         s. 440.29, F.S.; revising the list of

20         admissible evidentiary items; amending s.

21         440.34, F.S.; prohibiting the payment of

22         attorney's fees on specified issues;

23         restricting the amounts of attorney's fees

24         which may be awarded; amending s. 440.39, F.S.;

25         providing that an employer has no duty to

26         preserve certain evidence; amending s. 440.42,

27         F.S.; revising provisions governing the

28         expiration of insurance contracts or policies

29         issued under ch. 440, F.S.; amending s. 440.45,

30         F.S.; transferring the Office of the Judges of

31         Compensation Claims from the Department of

                                  3

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         Labor and Employment Security to the Department

  2         of Management Services; providing that the head

  3         of the office is the Deputy Chief Judge of

  4         Compensation Claims; providing for evaluating a

  5         judge's performance; providing for the Governor

  6         to appoint such judges; prescribing judges'

  7         qualifications; providing a procedure for

  8         instigating and resolving complaints against

  9         judges; providing for rulemaking; requiring a

10         report; amending s. 627.914, F.S.; requiring

11         self-insurance funds, as well as other

12         insurers, to follow certain rules and plans in

13         recording and reporting loss, expense, and

14         claims experience; amending the date by which

15         an annual report must be filed; repealing s.

16         440.4416, F.S., relating to the Workers'

17         Compensation Oversight Board; creating the

18         Workers' Compensation Appeals Commission;

19         providing for the Governor to select

20         commissioners; providing for terms of office;

21         providing for the Statewide Nominating

22         Commission to review each commissioner's

23         performance and to recommend for or against

24         retention; providing for the appointment of

25         associate commissioners; providing the

26         commission with authority to review decisions

27         of judges of compensation claims; providing

28         that the commission is not an agency; providing

29         for a presiding commissioner and prescribing

30         his or her duties; providing for a clerk;

31         providing a filing fee and exempting state

                                  4

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         agencies; providing for a seal; allowing the

  2         commission to destroy its obsolete records;

  3         allowing reimbursement for travel expenses;

  4         providing for rules governing practice and

  5         procedure; providing effective dates.

  6

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

  8

  9         Section 1.  Paragraph (b) of subsection (1) of section

10  61.13, Florida Statutes, is amended to read:

11         61.13  Custody and support of children; visitation

12  rights; power of court in making orders.--

13         (1)

14         (b)  Each order for child support shall contain a

15  provision for health insurance for the minor child when the

16  insurance is reasonably available. Insurance is reasonably

17  available if either the obligor or obligee has access at a

18  reasonable rate to group insurance.  The court may require the

19  obligor either to provide health insurance coverage or to

20  reimburse the obligee for the cost of health insurance

21  coverage for the minor child when coverage is provided by the

22  obligee.  In either event, the court shall apportion the cost

23  of coverage, and any noncovered medical, dental, and

24  prescription medication expenses of the child, to both parties

25  by adding the cost to the basic obligation determined pursuant

26  to s. 61.30(6). The court may order that payment of uncovered

27  medical, dental, and prescription medication expenses of the

28  minor child be made directly to the payee on a percentage

29  basis.

30

31

                                  5

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         1.  A copy of the court order for insurance coverage

  2  shall be served on the obligor's payor or union by the obligee

  3  or the IV-D agency when the following conditions are met:

  4         a.  The obligor fails to provide written proof to the

  5  obligee or the IV-D agency within 30 days of receiving

  6  effective notice of the court order, that the insurance has

  7  been obtained or that application for insurability has been

  8  made;

  9         b.  The obligee or IV-D agency serves written notice of

10  its intent to enforce medical support on the obligor by mail

11  at the obligor's last known address; and

12         c.  The obligor fails within 15 days after the mailing

13  of the notice to provide written proof to the obligee or the

14  IV-D agency that the insurance coverage existed as of the date

15  of mailing.

16         2.  In cases in which the noncustodial parent provides

17  health care coverage and the noncustodial parent changes

18  employment and the new employer provides health care coverage,

19  the IV-D agency shall transfer notice of the provision to the

20  employer, which notice shall operate to enroll the child in

21  the noncustodial parent's health plan, unless the noncustodial

22  parent contests the notice.  Notice to enforce medical

23  coverage under this section shall be served by the IV-D agency

24  upon the obligor by mail at the obligor's last known address.

25  The obligor shall have 15 days from the date of mailing of the

26  notice to contest the notice with the IV-D agency.

27         3.  Upon receipt of the order pursuant to subparagraph

28  1. or the notice pursuant to subparagraph 2., or upon

29  application of the obligor pursuant to the order, the payor,

30  union, or employer shall enroll the minor child as a

31  beneficiary in the group insurance plan and withhold any

                                  6

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  required premium from the obligor's income.  If more than one

  2  plan is offered by the payor, union, or employer, the child

  3  shall be enrolled in the insurance plan in which the obligor

  4  is enrolled.

  5         4.  The Department of Revenue shall have the authority

  6  to adopt rules to implement the child support enforcement

  7  provisions of this section.

  8         5.  Exemption from creditors' claims pursuant to s.

  9  440.22 does not extend to claims of child support.

10         Section 2.  Paragraph (a) of subsection (2) of section

11  61.30, Florida Statutes, is amended to read:

12         61.30  Child support guidelines; retroactive child

13  support.--

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

15  the obligor and for the obligee as follows:

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

17  the following items:

18         1.  Salary or wages.

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

20  and other similar payments.

21         3.  Business income from sources such as

22  self-employment, partnership, close corporations, and

23  independent contracts. "Business income" means gross receipts

24  minus ordinary and necessary expenses required to produce

25  income.

26         4.  Disability benefits.

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

28         6.  Unemployment compensation.

29         7.  Pension, retirement, or annuity payments.

30         8.  Social security benefits.

31

                                  7

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         9.  Spousal support received from a previous marriage

  2  or court ordered in the marriage before the court.

  3         10.  Interest and dividends.

  4         11.  Rental income, which is gross receipts minus

  5  ordinary and necessary expenses required to produce the

  6  income.

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

  8         13.  Reimbursed expenses or in kind payments to the

  9  extent that they reduce living expenses.

10         14.  Gains derived from dealings in property, unless

11  the gain is nonrecurring.

12         Section 3.  Section 440.02, Florida Statutes, is

13  amended to read:

14         440.02  Definitions.--When used in this chapter, unless

15  the context clearly requires otherwise, the following terms

16  shall have the following meanings:

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

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

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

20  disability or death due to the accidental acceleration or

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

22  habitual use of alcohol or controlled substances or narcotic

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

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

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

26  an injury by accident arising out of the employment. An injury

27  or disease that is caused by exposure to a toxic substance is

28  not an injury by accident arising out of the employment unless

29  there are epidemiological studies showing that exposure to the

30  specific substance involved, at the levels to which the

31  employee was exposed, can cause the precise injury or disease

                                  8

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  sustained by the employee. If a preexisting disease or anomaly

  2  is accelerated or aggravated by an accident arising out of and

  3  in the course of employment, only acceleration of death or

  4  acceleration or aggravation of the preexisting condition

  5  reasonably attributable to the accident is compensable, with

  6  respect to death or permanent impairment.

  7         (2)  "Adoption" or "adopted" means legal adoption prior

  8  to the time of the injury.

  9         (3)  "Carrier" means any person or fund authorized

10  under s. 440.38 to insure under this chapter and includes a

11  self-insurer, and a commercial self-insurance fund authorized

12  under s. 624.462.

13         (4)  "Casual" as used in this section shall be taken to

14  refer only to employments when the work contemplated is to be

15  completed in not exceeding 10 working days, without regard to

16  the number of persons employed, and when the total labor cost

17  of such work is less than $1,000 $100.

18         (5)  "Child" includes a posthumous child, a child

19  legally adopted prior to the injury of the employee, and a

20  stepchild or acknowledged child born out of wedlock dependent

21  upon the deceased, but does not include married children

22  unless wholly dependent on the employee.  "Grandchild" means a

23  child as above defined of a child as above defined.  "Brother"

24  and "sister" include stepbrothers and stepsisters, half

25  brothers and half sisters, and brothers and sisters by

26  adoption, but does not include married brothers or married

27  sisters unless wholly dependent on the employee. "Child,"

28  "grandchild," "brother," and "sister" include only persons who

29  at the time of the death of the deceased employees are under

30  18 years of age, or under 22 years of age if a full-time

31  student in an accredited educational institution.

                                  9

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (6)  "Compensation" means the money allowance payable

  2  to an employee or to his or her dependents as provided for in

  3  this chapter.

  4         (7)  "Construction industry" means any business that

  5  carries out for-profit activities involving the carrying out

  6  of any building, clearing, filling, excavation, or substantial

  7  improvement in the size or use of any structure or the

  8  appearance of any land. When appropriate to the context,

  9  "construction" refers to the act of construction or the result

10  of construction. However, the term "construction" does shall

11  not mean a homeowner's landowner's act of construction or the

12  result of a construction upon his or her own premises,

13  provided such premises are not intended to be sold or resold

14  or leased by the owner within 1 year after the commencement of

15  the construction.

16         (8)  "Corporate officer" or "officer of a corporation"

17  means any person who fills an office provided for in the

18  corporate charter or articles of incorporation filed with the

19  Division of Corporations of the Department of State or as

20  permitted or required by chapter 607.

21         (9)  "Date of maximum medical improvement" means the

22  date after which further recovery from, or lasting improvement

23  to, an injury or disease can no longer reasonably be

24  anticipated, based upon reasonable medical probability.

25         (10)  "Death" as a basis for a right to compensation

26  means only death resulting from an injury.

27         (11)  "Department" means the Department of Labor and

28  Employment Security.

29         (12)  "Disability" means incapacity because of the

30  injury to earn in the same or any other employment the wages

31  which the employee was receiving at the time of the injury.

                                  10

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (13)  "Division" means the Division of Workers'

  2  Compensation of the Department of Labor and Employment

  3  Security.

  4         (14)(a)  "Employee" means any person who receives

  5  remuneration from an employer for the performance of any work

  6  or service or the provision of any goods or supplies, whether

  7  by engaged in any employment under any appointment or contract

  8  for of hire or apprenticeship, express or implied, oral or

  9  written, whether lawfully or unlawfully employed, and

10  includes, but is not limited to, aliens and minors.

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

12  of a corporation and who performs services within this state

13  for remuneration for such corporation within this state,

14  whether or not such services are continuous.

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

16  from this chapter by filing written notice of the election

17  with the division as provided in s. 440.05.

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

19  engaged in the construction industry, no more than three

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

21  written notice of the election with the division as provided

22  in s. 440.05.

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

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

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

26

27  Services are presumed to have been rendered to the corporation

28  if the officer is compensated by other than dividends upon

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

30         (c)  The division may by rule establish those standard

31  industrial classification codes and their definitions which

                                  11

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  meet the criteria of the definition of the term "construction

  2  industry" as set forth in this section.

  3         (c)  "Employee" includes a sole proprietor or a partner

  4  who devotes full time to the proprietorship or partnership

  5  and, except as provided in this paragraph, elects to be

  6  included in the definition of employee by filing notice

  7  thereof as provided in s. 440.05. Partners or sole proprietors

  8  actively engaged in the construction industry are considered

  9  employees unless they elect to be excluded from the definition

10  of employee by filing written notice of the election with the

11  division as provided in s. 440.05. However, no more than three

12  partners in a partnership that is actively engaged in the

13  construction industry may elect to be excluded. A sole

14  proprietor or partner who is actively engaged in the

15  construction industry and who elects to be exempt from this

16  chapter by filing a written notice of the election with the

17  division as provided in s. 440.05 is not an employee. For

18  purposes of this chapter, all persons who are being paid by a

19  general contractor for work performed by or as a subcontractor

20  or employee of a subcontractor are employees of the general

21  contractor, except any person who: an independent contractor

22  is an employee unless he or she meets all of the conditions

23  set forth in subparagraph (d)1.

24         (d)  "Employee" does not include:

25         1.  An independent contractor, if:

26         a.  The independent contractor

27         1.  Maintains a separate business with his or her own

28  work facility, truck, equipment, materials, or similar

29  accommodations;

30         2.b.  Has a social security number; or The independent

31  contractor holds or has applied for a federal employer

                                  12

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  identification number, if required to do so by any federal,

  2  state, or local statute, rule, or regulation unless the

  3  independent contractor is a sole proprietor who is not

  4  required to obtain a federal employer identification number

  5  under state or federal requirements;

  6         3.c.  The independent contractor performs or agrees to

  7  perform specific services or work for specific amounts of

  8  money and Controls the means of performing the services or

  9  work that he or she was hired to perform or supply;

10         4.d.  The independent contractor Incurs the principal

11  expenses related to the service or work that he or she

12  performs or agrees to perform;

13         5.e.  The independent contractor Is responsible for the

14  satisfactory completion of work or services that he or she

15  performs or agrees to perform and is or could be held liable

16  for a failure to complete the work or services;

17         6.f.  The independent contractor Receives compensation

18  for work or services performed for a commission or on a

19  per-job or competitive-bid basis and not on any other basis,

20  such as salary or wages;

21         7.g.  The independent contractor May realize a profit

22  or suffer a loss in connection with performing work or

23  services; and

24         8.h.  The independent contractor Has continuing or

25  recurring business liabilities or obligations.; and

26         i.  The success or failure of the independent

27  contractor's business depends on the relationship of business

28  receipts to expenditures.

29

30  However, no more than one person per trade per job site may be

31  a nonemployee of the general contractor. The employer shall

                                  13

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  post in a conspicuous place on each job site the name and

  2  federal employer identification number (or, if none is

  3  required, the social security number) of each person who is

  4  being paid by the general contractor for work performed on

  5  that job site but is a nonemployee of the general contractor.

  6  As used in this paragraph, the term "job site" means that

  7  project as defined by the relevant building permit, and the

  8  term "trade" means a trade required to be licensed as such by

  9  the Department of Business and Professional Regulation. Any

10  person who is working in a trade that is not required to be

11  licensed as such by the Department of Business and

12  Professional Regulation is considered to be an employee of the

13  general contractor.

14

15  However, the determination as to whether an individual

16  included in the Standard Industrial Classification Manual of

17  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

18  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,

19  2448, or 2449, or a newspaper delivery person, is an

20  independent contractor is governed not by the criteria in this

21  paragraph but by common-law principles, giving due

22  consideration to the business activity of the individual.

23         (e)  The term "employee" does not include:

24         1.2.  A real estate salesperson or agent, if that

25  person agrees, in writing, to perform for remuneration solely

26  by way of commission.

27         2.3.  Bands, orchestras, and musical and theatrical

28  performers, including disk jockeys, performing in licensed

29  premises as defined in chapter 562, if a written contract

30  evidencing an independent contractor relationship is entered

31  into before the commencement of such entertainment.

                                  14

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         3.4.  An owner-operator of a motor vehicle who

  2  transports property under a written contract with a motor

  3  carrier which evidences a relationship by which the

  4  owner-operator assumes the responsibility of an employer for

  5  the performance of the contract, if the owner-operator is

  6  required to furnish the necessary motor vehicle equipment and

  7  all costs incidental to the performance of the contract,

  8  including, but not limited to, fuel, taxes, licenses, repairs,

  9  and hired help; and the owner-operator is paid a commission

10  for transportation service and is not paid by the hour or on

11  some other time-measured basis.

12         4.5.  A person whose employment is both casual and not

13  in the course of the trade, business, profession, or

14  occupation of the employer.

15         5.6.  A volunteer, except a volunteer worker for the

16  state or a county, municipality, or other governmental entity.

17  A person who does not receive monetary remuneration for

18  services is presumed to be a volunteer unless there is

19  substantial evidence that a valuable consideration was

20  intended by both employer and employee. For purposes of this

21  chapter, the term "volunteer" includes, but is not limited to:

22         a.  Persons who serve in private nonprofit agencies and

23  who receive no compensation other than expenses in an amount

24  less than or equivalent to the standard mileage and per diem

25  expenses provided to salaried employees in the same agency or,

26  if such agency does not have salaried employees who receive

27  mileage and per diem, then such volunteers who receive no

28  compensation other than expenses in an amount less than or

29  equivalent to the customary mileage and per diem paid to

30  salaried workers in the community as determined by the

31  division; and

                                  15

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         b.  Volunteers participating in federal programs

  2  established under Pub. L. No. 93-113.

  3         6.  Domestic servants in private houses.

  4         7.  Agricultural laborers on a farm in the employ of a

  5  bona fide farmer or association of farmers who employ 5 or

  6  fewer regular employees and who employ fewer than 12 other

  7  employees at one time for seasonal agricultural labor that is

  8  completed in less than 30 days, if such seasonal employment

  9  does not exceed 45 days in the same calendar year. The term

10  "farm" includes stock, dairy, poultry, fruit, fur-bearing

11  animals, fish, and truck farms, ranches, nurseries, and

12  orchards. The term "agricultural labor" includes field

13  foremen, timekeepers, checkers, and other farm labor

14  supervisory personnel.

15         8.  Professional athletes, such as professional boxers,

16  wrestlers, baseball, football, basketball, hockey, polo,

17  tennis, jai alai, and similar players, and motor sports teams

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

19         9.  Persons performing labor under a sentence of a

20  court to perform community services as provided in s. 316.193.

21         7.  Any officer of a corporation who elects to be

22  exempt from this chapter.

23         8.  A sole proprietor or officer of a corporation who

24  actively engages in the construction industry, and a partner

25  in a partnership that is actively engaged in the construction

26  industry, who elects to be exempt from the provisions of this

27  chapter. Such sole proprietor, officer, or partner is not an

28  employee for any reason until the notice of revocation of

29  election filed pursuant to s. 440.05 is effective.

30         10.9.  An exercise rider who does not work for a single

31  horse farm or breeder, and who is compensated for riding on a

                                  16

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  case-by-case basis, provided a written contract is entered

  2  into prior to the commencement of such activity which

  3  evidences that an employee/employer relationship does not

  4  exist.

  5         11.10.  A taxicab, limousine, or other passenger

  6  vehicle-for-hire driver who operates said vehicles pursuant to

  7  a written agreement with a company which provides any

  8  dispatch, marketing, insurance, communications, or other

  9  services under which the driver and any fees or charges paid

10  by the driver to the company for such services are not

11  conditioned upon, or expressed as a proportion of, fare

12  revenues.

13         (15)(a)  "Employer" means the state and all political

14  subdivisions thereof, all public and quasi-public corporations

15  therein, every person carrying on any employment, and the

16  legal representative of a deceased person or the receiver or

17  trustees of any person. If the employer is a corporation,

18  parties in actual control of the corporation, including, but

19  not limited to, the president, officers who exercise broad

20  corporate powers, directors, and all shareholders who directly

21  or indirectly own a controlling interest in the corporation,

22  are considered the employer for the purposes of ss. 440.105

23  and 440.106.

24         (b)  However, a landowner shall not be considered the

25  employer of any person hired by the landowner to carry out

26  construction upon his or her own premises, if those premises

27  are not intended for immediate sale or resale.

28         (16)(a)  "Employment," means, not including subsection

29  (4), the payment of any remuneration for work or services

30  rendered or promised, or goods or services provided or

31  promised and, subject to the other provisions of this chapter,

                                  17

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  means any service performed by an employee for the person

  2  employing him or her; and.

  3         (b)  "Employment" includes:

  4         (a)1.  Employment by the state and all political

  5  subdivisions thereof and all public and quasi-public

  6  corporations therein, including officers elected at the polls.

  7         (b)2.  All private employments in which four or more

  8  employees are employed by the same employer or, with respect

  9  to the construction industry, all private employment in which

10  one or more employees are employed by the same employer.

11         (c)3.  Volunteer firefighters responding to or

12  assisting with fire or medical emergencies whether or not the

13  firefighters are on duty.

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

15  or as:

16         1.  Domestic servants in private homes.

17         2.  Agricultural labor performed on a farm in the

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

19  employs 5 or fewer regular employees and who employs fewer

20  than 12 other employees at one time for seasonal agricultural

21  labor that is completed in less than 30 days, provided such

22  seasonal employment does not exceed 45 days in the same

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

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

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

26  includes field foremen, timekeepers, checkers, and other farm

27  labor supervisory personnel.

28         3.  Professional athletes, such as professional boxers,

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

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

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

                                  18

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  community services as provided in s. 316.193.

  3         (17)  "Misconduct" includes, but is not limited to, the

  4  following, which shall not be construed in pari materia with

  5  each other:

  6         (a)  Conduct evincing such willful or wanton disregard

  7  of an employer's interests as is found in deliberate violation

  8  or disregard of standards of behavior which the employer has

  9  the right to expect of the employee; or

10         (b)  Carelessness or negligence of such a degree or

11  recurrence as to manifest culpability, wrongful intent, or

12  evil design, or to show an intentional and substantial

13  disregard of an employer's interests or of the employee's

14  duties and obligations to the employer.

15         (18)  "Injury" means personal injury or death by

16  accident arising out of and in the course of employment, and

17  such diseases or infection as naturally or unavoidably result

18  from such injury. Damage to dentures, eyeglasses, prosthetic

19  devices, and artificial limbs may be included in this

20  definition only when the damage is shown to be part of, or in

21  conjunction with, an accident. This damage must specifically

22  occur as the result of an accident in the normal course of

23  employment.

24         (19)  "Parent" includes stepparents and parents by

25  adoption, parents-in-law, and any persons who for more than 3

26  years prior to the death of the deceased employee stood in the

27  place of a parent to him or her and were dependent on the

28  injured employee.

29         (20)  "Partner" means any person who is a member of a

30  partnership that is formed by two or more persons to carry on

31  as coowners of a business with the understanding that there

                                  19

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  will be a proportional sharing of the profits and losses

  2  between them. For the purposes of this chapter, a partner is a

  3  person who participates fully in the management of the

  4  partnership and who is personally liable for its debts.

  5         (21)  "Permanent impairment" means any anatomic or

  6  functional abnormality or loss determined as a percentage of

  7  the body as a whole, existing after the date of maximum

  8  medical improvement, which results from the injury.

  9         (22)  "Person" means individual, partnership,

10  association, or corporation, including any public service

11  corporation.

12         (23)  "Self-insurer" means:

13         (a)  Any employer who has secured payment of

14  compensation pursuant to s. 440.38(1)(b) or (6) as an

15  individual self-insurer;

16         (b)  Any employer who has secured payment of

17  compensation through a group self-insurance fund under s.

18  624.4621;

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

20  624.4621;

21         (d)  A public utility as defined in s. 364.02 or s.

22  366.02 that has assumed by contract the liabilities of

23  contractors or subcontractors pursuant to s. 624.46225; or

24         (e)  Any local government self-insurance fund

25  established under s. 624.4622.

26         (24)  "Sole proprietor" means a natural person who owns

27  a form of business in which that person owns all the assets of

28  the business and is solely liable for all the debts of the

29  business.

30         (25)  "Spouse" includes only a spouse substantially

31  dependent for financial support upon the decedent and living

                                  20

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  with the decedent at the time of the decedent's injury and

  2  death, or substantially dependent upon the decedent for

  3  financial support and living apart at that time for

  4  justifiable cause.

  5         (26)  "Time of injury" means the time of the occurrence

  6  of the accident resulting in the injury.

  7         (27)  "Wages" means the money rate at which the service

  8  rendered is recompensed under the contract of hiring in force

  9  at the time of the injury and includes only the wages earned

10  and reported for federal income tax purposes on the job where

11  the employee is injured and any other concurrent employment

12  where he or she is also subject to workers' compensation

13  coverage and benefits, together with the reasonable value of

14  housing furnished to the employee by the employer which is the

15  permanent year-round residence of the employee, and gratuities

16  to the extent reported to the employer in writing as taxable

17  income received in the course of employment from others than

18  the employer and employer contributions for health insurance

19  for the employee or the employee's dependents. However,

20  housing furnished to migrant workers shall be included in

21  wages unless provided after the time of injury. In employment

22  in which an employee receives consideration for housing, the

23  reasonable value of such housing compensation shall be the

24  actual cost to the employer or based upon the Fair Market Rent

25  Survey promulgated pursuant to s. 8 of the Housing and Urban

26  Development Act of 1974, whichever is less. However, if

27  employer contributions for housing or health insurance are

28  continued after the time of the injury, the contributions are

29  not "wages" for the purpose of calculating an employee's

30  average weekly wage.

31

                                  21

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (28)  "Weekly compensation rate" means and refers to

  2  the amount of compensation payable for a period of 7

  3  consecutive days, including any Saturdays, Sundays, holidays,

  4  and other nonworking days which fall within such period of 7

  5  consecutive days.  When Saturdays, Sundays, holidays, or other

  6  nonworking days immediately follow the first 7 days of

  7  disability or occur at the end of a period of disability as

  8  the last day or days of such period, such nonworking days

  9  constitute a part of the period of disability with respect to

10  which compensation is payable.

11         (29)  "Construction design professional" means an

12  architect, professional engineer, landscape architect, or

13  surveyor and mapper, or any corporation, professional or

14  general, that has a certificate to practice in the

15  construction design field from the Department of Business and

16  Professional Regulation.

17         (30)  "Individual self-insurer" means any employer who

18  has secured payment of compensation pursuant to s.

19  440.38(1)(b) as an individual self-insurer.

20         (31)  "Domestic individual self-insurer" means an

21  individual self-insurer:

22         (a)  Which is a corporation formed under the laws of

23  this state;

24         (b)  Who is an individual who is a resident of this

25  state or whose primary place of business is located in this

26  state; or

27         (c)  Which is a partnership whose principals are

28  residents of this state or whose primary place of business is

29  located in this state.

30         (32)  "Foreign individual self-insurer" means an

31  individual self-insurer:

                                  22

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (a)  Which is a corporation formed under the laws of

  2  any state, district, territory, or commonwealth of the United

  3  States other than this state;

  4         (b)  Who is an individual who is not a resident of this

  5  state and whose primary place of business is not located in

  6  this state; or

  7         (c)  Which is a partnership whose principals are not

  8  residents of this state and whose primary place of business is

  9  not located in this state.

10         (33)  "Insolvent member" means an individual

11  self-insurer which is a member of the Florida Self-Insurers

12  Guaranty Association, Incorporated, or which was a member and

13  has withdrawn pursuant to s. 440.385(1)(b), and which has been

14  found insolvent, as defined in subparagraph (34)(a)1.,

15  subparagraph (34)(a)2., or subparagraph (34)(a)3., by a court

16  of competent jurisdiction in this or any other state, or meets

17  the definition of subparagraph (34)(a)4.

18         (34)  "Insolvency" or "insolvent" means:

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

20         1.  That all assets of the individual self-insurer, if

21  made immediately available, would not be sufficient to meet

22  all the individual self-insurer's liabilities;

23         2.  That the individual self-insurer is unable to pay

24  its debts as they become due in the usual course of business;

25         3.  That the individual self-insurer has substantially

26  ceased or suspended the payment of compensation to its

27  employees as required in this chapter; or

28         4.  That the individual self-insurer has sought

29  protection under the United States Bankruptcy Code or has been

30  brought under the jurisdiction of a court of bankruptcy as a

31  debtor pursuant to the United States Bankruptcy Code.

                                  23

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (b)  With respect to an employee claiming insolvency

  2  pursuant to s. 440.25(5), a person is insolvent who:

  3         1.  Has ceased to pay his or her debts in the ordinary

  4  course of business and cannot pay his or her debts as they

  5  become due; or

  6         2.  Has been adjudicated insolvent pursuant to the

  7  federal bankruptcy law.

  8         (35)  "Arising out of" pertains to occupational

  9  causation. An accidental injury or death arises out of

10  employment if work performed in the course and scope of

11  employment is the major contributing cause of the injury or

12  death.

13         (36)  "Soft-tissue injury" means an injury that

14  produces damage to the soft tissues, rather than to the

15  skeletal tissues or soft organs.

16         (37)  "Catastrophic injury" means a permanent

17  impairment constituted by:

18         (a)  Spinal cord injury involving severe paralysis of

19  an arm, a leg, or the trunk;

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

21  involving the effective loss of use of that appendage;

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

23  by:

24         1.  Severe sensory or motor disturbances;

25         2.  Severe communication disturbances;

26         3.  Severe complex integrated disturbances of cerebral

27  function;

28         4.  Severe episodic neurological disorders; or

29         5.  Other severe brain and closed-head injury

30  conditions at least as severe in nature as any condition

31  provided in subparagraphs 1.-4.;

                                  24

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

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

  3  percent or more to the face and hands;

  4         (e)  Total or industrial blindness; or

  5         (f)  Any other injury that would otherwise qualify

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

  7  an employee to receive disability income benefits under Title

  8  II or supplemental security income benefits under Title XVI of

  9  the federal Social Security Act as the Social Security Act

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

11  limitations provided under that act.

12         (37)(38)  "Insurer" means a group self-insurers' fund

13  authorized by s. 624.4621, an individual self-insurer

14  authorized by s. 440.38, a commercial self-insurance fund

15  authorized by s. 624.462, an assessable mutual insurer

16  authorized by s. 628.6011, and an insurer licensed to write

17  workers' compensation and employer's liability insurance in

18  this state. The term "carrier," as used in this chapter, means

19  an insurer as defined in this subsection.

20         (38)(39)  "Statement," for the purposes of ss. 440.105

21  and 440.106, includes, but is not limited to, any notice,

22  representation, statement, proof of injury, bill for services,

23  diagnosis, prescription, hospital or doctor record, X ray,

24  test result, or other evidence of loss, injury, or expense.

25         (39)  "Medically necessary remedial treatment, care,

26  and attendance" means remedial treatment, care, and attendance

27  that an authorized treating physician has recommended in

28  writing.

29         Section 4.  Section 440.05, Florida Statutes, is

30  amended to read:

31         (Substantial rewording of section. See

                                  25

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         s. 440.05, F.S., for present text.)

  2         440.05  Election of exemption; revocation of

  3  election.--

  4         (1)  The following classes of persons, as defined by s.

  5  440.02, who are not primarily engaged in the construction

  6  industry, as that term is defined in s. 440.02, are exempt

  7  from this chapter unless they elect otherwise in accordance

  8  with subsection (2):

  9         (a)  Sole proprietors;

10         (b)  Partners as defined in this section; and

11         (c)  Corporate officers as defined in this section.

12         (2)  Any person who is exempted from this chapter under

13  this section who secures, or whose employer secures for him or

14  her, workers' compensation insurance coverage is considered to

15  have waived the right to such an exemption and is subject to

16  the provisions of this chapter.

17         (3)  Every enterprise conducting business in this state

18  shall maintain business records as specified by the division

19  by rule, which rules must include the provision that any

20  corporation with exempt officers and any partnership with

21  exempt partners must maintain written statements of those

22  exempted persons affirmatively acknowledging each such

23  individual's exempt status.

24         (4)  Any sole proprietor or partner claiming an

25  exemption under this section shall maintain a copy of his or

26  her federal income tax records for each of the immediately

27  previous 3 years in which he or she claims an exemption. Such

28  federal income tax records must include a complete copy of the

29  following for each year in which an exemption is claimed:

30         (a)  For sole proprietors, a copy of Federal Income Tax

31  Form 1040 and its accompanying Schedule C;

                                  26

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (b)  For partners, a copy of the partner's Federal

  2  Income Tax Schedule K-1 (Form 1065) and Federal Income Tax

  3  Form 1040 and its accompanying Schedule E. The sole proprietor

  4  or partner in question shall produce, upon request by the

  5  division, a copy of those documents together with a statement

  6  by the sole proprietor that the tax records provided are true

  7  and accurate copies of what the sole proprietor or partner has

  8  filed with the federal Internal Revenue Service. The statement

  9  must be signed under oath by the sole proprietor or partner in

10  question and must be notarized. The division shall issue a

11  stop-work order under s. 440.107(5) to any sole proprietor or

12  partner who fails or refuses to produce a copy of the tax

13  records and affidavit required under this paragraph to the

14  division within 3 business days after that request and who has

15  failed to otherwise secure insurance for the provision of

16  workers' compensation benefits for himself or herself if

17  required under this chapter to do so.

18         (5)  Any corporate officer claiming an exemption under

19  this section must be listed on the records of this state's

20  Secretary of State, Division of Corporations, as a corporate

21  officer. If the person who claims exemption as a corporate

22  officer is not so listed on the records of the Secretary of

23  State, the individual must provide to the division, upon

24  request by the division, a notarized affidavit stating that

25  the individual is a bona fide officer of the corporation and

26  stating the date his or her appointment or election as a

27  corporate officer became or will become effective. The

28  statement must be signed under oath by both the officer in

29  question and the president or chief operating officer of the

30  corporation and must be notarized. The division shall issue a

31  stop-work order under s. 440.107(1) to any person who claims

                                  27

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  to be exempt as a corporate officer but who fails or refuses

  2  to produce the documents required under this subsection to the

  3  division within 3 business days after the request is made and

  4  who has failed to otherwise secure the insurance of workers'

  5  compensation benefits for himself or herself if required under

  6  this chapter to do so.

  7         (6)  A sole proprietor, partner, or corporate officer

  8  of a business entity that has not been in operation long

  9  enough to have filed with the Internal Revenue Service, or to

10  have been required by the Internal Revenue Service to file,

11  its first annual federal income tax return is not eligible for

12  exemption from this chapter.

13         (7)  Exemptions pertain only to the person claiming

14  exemption and only for the entity that is the subject of the

15  federal income tax reports filed by the person claiming the

16  exemption. A separate exemption is required for every

17  proprietorship, partnership, or corporation from which an

18  individual receives any remuneration for labor, services, or

19  products provided.

20         (8)  Sole proprietors, partners, and corporate

21  officers, as those terms are defined in s. 440.02, of sole

22  proprietorships, partnerships, and corporations that are

23  primarily engaged in the construction industry as that term is

24  defined in s. 440.02 are not eligible for exemption from this

25  chapter.

26         Section 5.  Subsection (1) of section 440.09, Florida

27  Statutes, is amended to read:

28         440.09  Coverage.--

29         (1)  The employer shall pay compensation or furnish

30  benefits required by this chapter if the employee suffers an

31  accidental compensable injury or death arising out of work

                                  28

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  injury, its occupational cause, and any resulting

  3  manifestations, or disability, or impairment shall be

  4  established to a reasonable degree of medical certainty and by

  5  objective medical findings. In cases involving occupational

  6  disease or repetitive exposure, or both, both causation and

  7  sufficient exposure to support causation must be proven by

  8  clear and convincing evidence. Mental or nervous injuries

  9  occurring as a manifestation of an injury compensable under

10  this section shall be demonstrated by clear and convincing

11  evidence through objective medical findings concerning the

12  results of the injury from a division-certified psychiatrist.

13  Compensation may not be paid as a result of any impairment

14  rating for psychiatric impairments.

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

16  benefits for any subsequent injury the employee suffers as a

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

18  of employment unless the original injury is the major

19  contributing cause of the subsequent injury.

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

21  employment combines with a preexisting disease or condition to

22  cause or prolong disability or need for treatment, the

23  employer must pay compensation or benefits required by this

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

25  in the course of employment is and remains the major

26  contributing cause of the disability or need for treatment.

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

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

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

30  considered to be a death resulting from the accident causing

31  the hernia.

                                  29

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

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

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

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

  5  are entitled to compensation if the contract of employment was

  6  made in this state, or the employment was principally

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

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

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

10  provided in this chapter.

11         Section 6.  Section 440.10, Florida Statutes, is

12  amended to read:

13         440.10  Liability for compensation.--

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

15  this chapter, including any brought within the chapter by

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

17  shall secure, the payment to his or her employees, or any

18  physician, surgeon, or pharmacist providing services under the

19  provisions of s. 440.13, of the compensation payable under ss.

20  440.13, 440.15, and 440.16. Any contractor or subcontractor

21  who engages in any public or private construction in the state

22  shall secure and maintain compensation for his or her

23  employees under this chapter as provided in s. 440.38.

24         (b)  In case a contractor sublets any part or parts of

25  his or her contract work to a subcontractor or subcontractors,

26  all of the employees of such contractor and subcontractor or

27  subcontractors engaged on such contract work shall be deemed

28  to be employed in one and the same business or establishment;

29  and the contractor shall be liable for, and shall secure, the

30  payment of compensation to all such employees, except to

31  employees of a subcontractor who has secured such payment.

                                  30

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (c)  A contractor may require a subcontractor to

  2  provide evidence of workers' compensation insurance or a copy

  3  of his or her certificate of election. A subcontractor

  4  electing to be exempt as a sole proprietor, partner, or

  5  officer of a corporation shall provide a copy of his or her

  6  certificate of election to the contractor.

  7         (d)1.  If a contractor becomes liable for the payment

  8  of compensation to the employees of a subcontractor who has

  9  failed to secure such payment in violation of s. 440.38, the

10  contractor or other third-party payor shall be entitled to

11  recover from the subcontractor all benefits paid or payable

12  plus interest unless the contractor and subcontractor have

13  agreed in writing that the contractor will provide coverage.

14         2.  If a contractor or third-party payor becomes liable

15  for the payment of compensation to the employee of a

16  subcontractor who is actively engaged in the construction

17  industry and has elected to be exempt from the provisions of

18  this chapter, but whose election is invalid, the contractor or

19  third-party payor may recover from the claimant, partnership,

20  or corporation all benefits paid or payable plus interest,

21  unless the contractor and the subcontractor have agreed in

22  writing that the contractor will provide coverage.

23         (e)  A subcontractor is not liable for the payment of

24  compensation to the employees of another subcontractor on such

25  contract work and is not protected by the

26  exclusiveness-of-liability provisions of s. 440.11 from action

27  at law or in admiralty on account of injury of such employee

28  of another subcontractor.

29         (f)  If an employer willfully fails to secure

30  compensation as required by this chapter, the division may

31  assess against the employer a penalty not to exceed $5,000 for

                                  31

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  each employee of that employer who is classified by the

  2  employer as an independent contractor but who is found by the

  3  division to not meet the criteria for an independent

  4  contractor that are set forth in s. 440.02.

  5         (g)  For purposes of this section, a person is

  6  conclusively presumed to be an independent contractor if:

  7         1.  the independent contractor provides the general

  8  contractor with an affidavit stating that he or she meets all

  9  the requirements of s. 440.02(14)(d). An; and

10         2.  The independent contractor provides the general

11  contractor with a valid certificate of workers' compensation

12  insurance or a valid certificate of exemption issued by the

13  division.

14

15  A sole proprietor, partner, or officer of a corporation who

16  elects exemption from this chapter by filing a certificate of

17  election under s. 440.05 may not recover benefits or

18  compensation under this chapter.  An independent contractor

19  who provides the general contractor with both an affidavit

20  stating that he or she meets the requirements of s.

21  440.02(14)(d) and a certificate of exemption is not an

22  employee under s. 440.02(14)(c) and may not recover benefits

23  under this chapter.  For purposes of determining the

24  appropriate premium for workers' compensation coverage,

25  carriers may not consider any person who meets the

26  requirements of this paragraph to be an employee.

27         (2)  Compensation shall be payable irrespective of

28  fault as a cause for the injury, except as provided in s.

29  440.09(3).

30         Section 7.  Subsections (2), (3), (4), (5), and (6) of

31  section 440.13, Florida Statutes, are amended to read:

                                  32

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         440.13  Medical services and supplies; penalty for

  2  violations; limitations.--

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

  4         (a)  Subject to the limitations specified elsewhere in

  5  this chapter, the employer shall furnish to the employee such

  6  medically necessary remedial treatment, care, and attendance

  7  for such period as the nature of the injury or the process of

  8  recovery may require, including medicines, medical supplies,

  9  durable medical equipment, orthoses, prostheses, and other

10  medically necessary apparatus. Remedial treatment, care, and

11  attendance, including work-hardening programs or

12  pain-management programs accredited by the Commission on

13  Accreditation of Rehabilitation Facilities or Joint Commission

14  on the Accreditation of Health Organizations or

15  pain-management programs affiliated with medical schools,

16  shall be considered as covered treatment only when such care

17  is given based on a referral by a physician as defined in this

18  chapter. Each facility shall maintain outcome data, including

19  work status at discharges, total program charges, total number

20  of visits, and length of stay. The department shall utilize

21  such data and report annually to the President of the Senate

22  and the Speaker of the House of Representatives regarding the

23  efficacy and cost-effectiveness of such program, no later than

24  October 1, 1994. Medically necessary treatment, care, and

25  attendance does not include chiropractic services in excess of

26  18 treatments or rendered 8 weeks beyond the date of the

27  initial chiropractic treatment, whichever comes first, unless

28  the carrier authorizes additional treatment or the employee is

29  catastrophically injured.

30         (b)  The employer shall provide appropriate

31  professional or nonprofessional attendant care performed only

                                  33

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  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. However, the hourly rate paid to the family member must

13  not exceed the hourly rate received in the employment that the

14  family member quit to provide such care, nor may the weekly

15  amount paid to the family member for providing such care

16  exceed the weekly amount that the family member previously

17  earned. A family member or a combination of family members

18  providing nonprofessional attendant care under this paragraph

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

20  day.

21         (c)  When no medical treatment has been provided and If

22  the employer fails to provide any treatment or care required

23  by this section after request by the injured employee, the

24  employee may obtain such treatment at the expense of the

25  employer, if the treatment is compensable and medically

26  necessary. There must be a specific request for the treatment,

27  and the employer or carrier must be given a reasonable time

28  period within which to provide the treatment or care. However,

29  the employee is not entitled to recover any amount personally

30  expended for the treatment or service unless he or she has

31  requested the employer to furnish that treatment or service

                                  34

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  and the employer has failed, refused, or neglected to provide

  2  any medical treatment do so within a reasonable time or unless

  3  the nature of the injury requires such treatment, nursing, and

  4  services and the employer or his or her superintendent or

  5  foreman, having knowledge of the injury, has neglected to

  6  provide any the treatment or service.

  7         (d)  The carrier has the right to transfer the care of

  8  an injured employee from the attending health care provider if

  9  an independent medical examination determines that the

10  employee is not making appropriate progress in recuperation.

11         (e)  Except in emergency situations and for treatment

12  rendered by a managed care arrangement, after any initial

13  examination and diagnosis by a physician providing remedial

14  treatment, care, and attendance, and before a proposed course

15  of medical treatment begins, each insurer shall review, in

16  accordance with the requirements of this chapter, the proposed

17  course of treatment, to determine whether such treatment would

18  be recognized as reasonably prudent. The review must be in

19  accordance with all applicable workers' compensation practice

20  parameters. The insurer must accept any such proposed course

21  of treatment unless the insurer notifies the physician of its

22  specific objections to the proposed course of treatment by the

23  close of the tenth business day after notification by the

24  physician, or a supervised designee of the physician, of the

25  proposed course of treatment.

26         (3)  PROVIDER ELIGIBILITY; AUTHORIZATION.--

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

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

29  be a certified health care provider and must receive

30  authorization from the carrier before providing treatment.

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

                                  35

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  shall adopt rules to implement the certification of health

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

  3  certification, the division shall require each physician to

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

  5  that covers the subject areas of cost containment, utilization

  6  control, ergonomics, and the practice parameters adopted by

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

  8  division shall coordinate with the Agency for Health Care

  9  Administration, the Florida Medical Association, the Florida

10  Osteopathic Medical Association, the Florida Chiropractic

11  Association, the Florida Podiatric Medical Association, the

12  Florida Optometric Association, the Florida Dental

13  Association, and other health professional organizations and

14  their respective boards as deemed necessary by the Agency for

15  Health Care Administration in complying with this subsection.

16  No later than October 1, 1994, The division shall adopt rules

17  regarding the criteria and procedures for approval of courses

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

19         (b)  A health care provider who renders emergency care

20  must notify the carrier by the close of the third business day

21  after it has rendered such care. If the emergency care results

22  in admission of the employee to a health care facility, the

23  health care provider must notify the carrier by telephone

24  within 24 hours after initial treatment. Emergency care is not

25  compensable under this chapter unless the injury requiring

26  emergency care arose as a result of a work-related accident.

27  Pursuant to chapter 395, all licensed physicians and health

28  care providers in this state shall be required to make their

29  services available for emergency treatment of any employee

30  eligible for workers' compensation benefits. To refuse to make

31  such treatment available is cause for revocation of a license.

                                  36

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (c)  A health care provider may not refer the employee

  2  to another health care provider, diagnostic facility, therapy

  3  center, or other facility without prior authorization from the

  4  carrier, except when emergency care is rendered. Any referral

  5  must be to a health care provider that has been certified by

  6  the division, unless the referral is for emergency treatment.

  7         (d)  A carrier must respond to a request for

  8  authorization made directly from a health care provider, by

  9  telephone or in writing, to a request for authorization by the

10  close of the third business day after receipt of the request.

11  A carrier who fails to respond to a written request for

12  authorization for referral for medical treatment by the close

13  of the third business day after receipt of the request made

14  directly from a health care provider consents to the medical

15  necessity for such treatment. All such requests must be made

16  to the carrier. Notice to the carrier does not include notice

17  to the employer.

18         (e)  Carriers shall adopt procedures for receiving,

19  reviewing, documenting, and responding to requests for

20  authorization. Such procedures shall be for a health care

21  provider certified under this section.

22         (f)  By accepting payment under this chapter for

23  treatment rendered to an injured employee, a health care

24  provider consents to the jurisdiction of the division as set

25  forth in subsection (11) and to the submission of all records

26  and other information concerning such treatment to the

27  division in connection with a reimbursement dispute, audit, or

28  review as provided by this section. The health care provider

29  must further agree to comply with any decision of the division

30  rendered under this section.

31

                                  37

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (g)  The employee is not liable for payment for medical

  2  treatment or services provided pursuant to this section except

  3  as otherwise provided in this section.

  4         (h)  The provisions of s. 456.053 are applicable to

  5  referrals among health care providers, as defined in

  6  subsection (1), treating injured workers.

  7         (i)  Notwithstanding paragraph (d), a claim for

  8  specialist consultations, surgical operations,

  9  physiotherapeutic or occupational therapy procedures, X-ray

10  examinations, or special diagnostic laboratory tests that cost

11  more than $1,000 and other specialty services that the

12  division identifies by rule is not valid and reimbursable

13  unless the services have been expressly authorized by the

14  carrier, or unless the carrier has failed to respond within 10

15  days to a written request for authorization, or unless

16  emergency care is required. The insurer shall not refuse to

17  authorize such consultation or procedure unless the health

18  care provider or facility is not authorized or certified or

19  unless an expert medical advisor has determined that the

20  consultation or procedure is not medically necessary or

21  otherwise compensable under this chapter. Authorization of a

22  treatment plan does not constitute express authorization for

23  purposes of this section, except to the extent the carrier

24  provides otherwise in its authorization procedures. This

25  paragraph does not limit the carrier's obligation to identify

26  and disallow overutilization or billing errors.

27         (j)  Notwithstanding anything in this chapter to the

28  contrary, a sick or injured employee shall be entitled, at all

29  times, to free, full, and absolute choice in the selection of

30  the pharmacy or pharmacist dispensing and filling

31  prescriptions for medicines required under this chapter. It is

                                  38

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  expressly forbidden for the division, an employer, or a

  2  carrier, or any agent or representative of the division, an

  3  employer, or a carrier to select the pharmacy or pharmacist

  4  which the sick or injured employee must use; condition

  5  coverage or payment on the basis of the pharmacy or pharmacist

  6  utilized; or to otherwise interfere in the selection by the

  7  sick or injured employee of a pharmacy or pharmacist.

  8         (k)  Notwithstanding s. 440.13(12), the carrier may be

  9  allowed to provide for appropriate financial incentives to

10  reduce service costs and utilization without sacrificing the

11  quality of service.

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

13  DIVISION.--

14         (a)  Any health care provider providing necessary

15  remedial treatment, care, or attendance to any injured worker

16  shall submit treatment reports to the carrier in a format

17  prescribed by the division. A claim for medical or surgical

18  treatment is not valid or enforceable against such employer or

19  employee, unless, by the close of the third business day

20  following the first treatment, the physician providing the

21  treatment furnishes to the employer or carrier a preliminary

22  notice of the injury and treatment on forms prescribed by the

23  division and, within 15 days thereafter, furnishes to the

24  employer or carrier a complete report, and subsequent thereto

25  furnishes progress reports, if requested by the employer or

26  insurance carrier, at intervals of not less than 3 weeks apart

27  or at less frequent intervals if requested on forms prescribed

28  by the division.

29         (b)  A Each medical report or bill obtained or received

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

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

                                  39

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  respect to the remedial treatment or care of the injured

  2  employee, including any report of an examination, diagnosis,

  3  or disability evaluation, must be filed with the Division of

  4  Workers' Compensation pursuant to rules adopted by the

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

  6  injured employee or to his or her attorney, on demand, a copy

  7  of his or her office chart, records, and reports, and may

  8  charge the injured employee an amount authorized by the

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

10  provide to the division any additional information about the

11  remedial treatment, care, and attendance that the division

12  reasonably requests.

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

14  workers' compensation system that there be reasonable access

15  to medical information by all parties to facilitate the

16  self-executing features of the law. Notwithstanding the

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

18  381.004, upon the request of the employer, the carrier, a

19  rehabilitation provider, the managed-care case manager, or the

20  attorney for either the employer or the carrier of them, the

21  medical records of an injured employee must be furnished to

22  those persons and the medical condition of the injured

23  employee must be discussed with those persons, if the records

24  and the discussions are restricted to conditions relating to

25  the workplace injury. Any such discussions may be held before

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

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

28  representative. A health care provider who willfully refuses

29  to provide medical records or to discuss the medical condition

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

31  for such information pursuant to this subsection, shall be

                                  40

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  forth in paragraph (8)(b). As used in this paragraph, the term

  3  "to discuss" means to freely exchange ideas, facts, and

  4  findings among the parties and health care providers in a

  5  manner designed to aid the parties in reaching conclusions

  6  that will enable them to carry out their legal obligations and

  7  responsibilities.

  8         (5)  INDEPENDENT MEDICAL EXAMINATIONS.--

  9         (a)  In any dispute concerning overutilization, medical

10  benefits, compensability, the need for the claimant to have a

11  change in physician, or disability under this chapter, the

12  carrier or the employee may select an independent medical

13  examiner. The examiner may not be a health care provider

14  treating or providing other care to the employee. An

15  independent medical examiner may not render an opinion outside

16  his or her area of expertise, as demonstrated by licensure and

17  applicable practice parameters.

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

19  independent medical examiner as a result of injury, is

20  entitled to only one such examiner and to an examiner only in

21  one specialty, and is entitled to an alternate examiner only

22  if:

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

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

25  material to the claim or petition for benefits;

26         2.  The examiner ceases to practice in the specialty

27  relevant to the employee's condition;

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

29  or relocation outside a reasonably accessible geographic area;

30  or

31         4.  The parties agree to an alternate examiner.

                                  41

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1

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

  3  require, designation of a division medical advisor as an

  4  independent medical examiner. The opinion of the advisors

  5  acting as examiners shall not be afforded the presumption set

  6  forth in paragraph (9)(c).

  7         (c)  The carrier may, at its election, contact the

  8  claimant directly to schedule a reasonable time for an

  9  independent medical examination. The carrier must confirm the

10  scheduling agreement in writing within 5 days and notify

11  claimant's counsel, if any, at least 7 days before the date

12  upon which the independent medical examination is scheduled to

13  occur. An attorney representing a claimant is not authorized

14  to schedule independent medical evaluations under this

15  subsection.

16         (d)  If the employee fails to appear for the

17  independent medical examination without good cause and fails

18  to advise the physician at least 24 hours before the scheduled

19  date for the examination that he or she cannot appear, the

20  employee is barred from recovering compensation for any period

21  during which he or she has refused to submit to such

22  examination. Further, the employee shall reimburse the carrier

23  50 percent of the physician's cancellation or no-show fee

24  unless the carrier that schedules the examination fails to

25  timely provide to the employee a written confirmation of the

26  date of the examination pursuant to paragraph (c) which

27  includes an explanation of why he or she failed to appear. The

28  employee may appeal to a judge of compensation claims for

29  reimbursement when the carrier withholds payment in excess of

30  the authority granted by this section.

31

                                  42

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (e)  Unless compensability has been denied, a No

  2  medical opinion other than the opinion of a medical advisor

  3  appointed by the judge of compensation claims or division, an

  4  independent medical examiner, a peer-review consultant

  5  pursuant to a utilization review under subsection (6), or an

  6  authorized treating provider is inadmissible admissible in

  7  proceedings before the judges of compensation claims. In cases

  8  involving occupational disease or repetitive trauma, a medical

  9  opinion is inadmissible unless it is based on reliable

10  scientific principles that are sufficiently established to

11  have gained general acceptance in the pertinent area of

12  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         (6)  UTILIZATION REVIEW.--Carriers shall review all

18  bills, invoices, and other claims for payment submitted by

19  health care providers in order to identify overutilization and

20  billing errors, and may hire peer review consultants or

21  conduct independent medical evaluations. Such consultants,

22  including peer review organizations, are immune from liability

23  in the execution of their functions under this subsection to

24  the extent provided in s. 766.101. If a carrier finds that

25  overutilization of medical services or a billing error has

26  occurred, it must disallow or adjust payment for such services

27  or error without order of a judge of compensation claims or

28  the division, if the carrier, in making its determination, has

29  complied with this section and rules adopted by the division.

30  Any physician's action as a peer-review consultant or as an

31  independent medical examiner is an independent medical

                                  43

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  examination for purposes of resolving disputes arising as a

  2  result of the peer review or independent medical examination.

  3  The evaluation and such reports are admissible before the

  4  judge of compensation claims if the carrier decides to enter

  5  the reports into evidence; however, such independent medical

  6  evaluations must not be included in the number specified in

  7  subsection (5).

  8         Section 8.  Subsections (2) and (5) of section 440.134,

  9  Florida Statutes, are amended to read:

10         440.134  Workers' compensation managed care

11  arrangement.--

12         (2)(a)  The employer may, subject to the limitations

13  specified elsewhere in this chapter, furnish to the employee

14  solely through managed-care arrangements such medically

15  necessary remedial treatment, care, and attendance for such

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

17  requires.

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

19  or utilize a workers' compensation managed care arrangement

20  after the insurer files a completed application along with the

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

22  being satisfied that the applicant has the ability to provide

23  quality of care consistent with the prevailing professional

24  standards of care and the insurer and its workers'

25  compensation managed care arrangement otherwise meets the

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

27  a managed care arrangement without such authorization. The

28  authorization, unless sooner suspended or revoked, shall

29  automatically expire 2 years after the date of issuance unless

30  renewed by the insurer. The authorization shall be renewed

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

                                  44

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  requirements of this section and any rules adopted hereunder.

  3  An application for renewal of the authorization shall be made

  4  90 days prior to expiration of the authorization, on forms

  5  provided by the agency. The renewal application shall not

  6  require the resubmission of any documents previously filed

  7  with the agency if such documents have remained valid and

  8  unchanged since their original filing.

  9         (b)  Effective January 1, 1997, the employer shall,

10  subject to the limitations specified elsewhere in this

11  chapter, furnish to the employee solely through managed care

12  arrangements such medically necessary remedial treatment,

13  care, and attendance for such period as the nature of the

14  injury or the process of recovery requires.

15         (5)  An insurer that offers or utilizes a workers'

16  compensation managed care arrangement in this state must file

17  a proposed managed care plan of operation with the agency in a

18  format prescribed by the agency. The plan of operation must

19  contain evidence that all covered services are available and

20  accessible, including a demonstration that:

21         (a)  Such services can be provided with reasonable

22  promptness with respect to geographic location, hours of

23  operation, and after-hour care. The hours of operation and

24  availability of after-hour care must reflect usual practice in

25  the local area. Geographic availability must reflect the usual

26  travel times within the community.

27         (b)  Unless the agency determines that insufficient

28  numbers of providers are available, the number of providers in

29  the workers' compensation managed care arrangement service

30  area are sufficient, with respect to current and expected

31  workers to be served by the arrangement, either:

                                  45

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         1.  By delivery of all required medical services; or

  2         2.  Through the ability to make appropriate referrals

  3  within the provider network.

  4         (c)  There are written agreements with providers

  5  describing specific responsibilities.

  6         (d)  Emergency care is available 24 hours a day and 7

  7  days a week.

  8         (e)  In the case of covered services, there are written

  9  agreements with providers prohibiting such providers from

10  billing or otherwise seeking reimbursement from or recourse

11  against any injured worker.

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

13  440.14, Florida Statutes, is amended, and subsection (5) is

14  added to that section, 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  in accordance with the employer's regular payroll periods,

                                  46

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  before the week in which the injury occurs, a consecutive

  2  period of 91 days, and the term "during substantially the

  3  whole of 13 weeks" shall be deemed to mean during not less

  4  than 90 percent of the total customary full-time hours of

  5  employment within such period considered as a whole.

  6         (5)  If concurrent employment is to be used in

  7  calculating the average weekly wage, the employee is

  8  responsible for providing earnings from concurrent employment

  9  to the employer/carrier within 45 days after the injury or

10  after the first payment of compensation. Failure to provide

11  such information will result in concurrent employment not

12  being added to such calculation.

13         Section 10.  Paragraph (b) of subsection (1), paragraph

14  (a) of subsection (3), and paragraph (a) of subsection (10) of

15  section 440.15, Florida Statutes, are amended to read:

16         440.15  Compensation for disability.--Compensation for

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

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

19         (1)  PERMANENT TOTAL DISABILITY.--

20         (b)  Any compensable injury eligible for permanent

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

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

23  work or any work available in substantial numbers within the

24  national economy. If the employee is engaged in or is

25  physically capable of being engaged in any gainful employment,

26  including sheltered employment, he or she is not entitled to

27  permanent total disability. The burden is on the employee to

28  establish that he or she is unable, due to physical

29  limitations, to perform even part-time sedentary work if such

30  work is available within a 100-mile radius of the employee's

31  residence. Only a catastrophic injury as defined in s. 440.02

                                  47

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  shall, in the absence of conclusive proof of a substantial

  2  earning capacity, constitute permanent total disability. Only

  3  claimants with catastrophic injuries are eligible for

  4  permanent total benefits. In no other case may permanent total

  5  disability be awarded.

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

  7         (a)  Impairment benefits.--

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

  9  medical improvement, impairment benefits are due and payable

10  within 20 days after the carrier has knowledge of the

11  impairment.

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

13  division, shall establish and use a uniform permanent

14  impairment rating schedule. This schedule must be based on

15  medically or scientifically demonstrable findings as well as

16  the systems and criteria set forth in the American Medical

17  Association's Guides to the Evaluation of Permanent

18  Impairment; the Snellen Charts, published by American Medical

19  Association Committee for Eye Injuries; and the Minnesota

20  Department of Labor and Industry Disability Schedules. The

21  schedule should be based upon objective findings. The schedule

22  shall be more comprehensive than the AMA Guides to the

23  Evaluation of Permanent Impairment and shall expand the areas

24  already addressed and address additional areas not currently

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

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

27  Evaluation of Permanent Impairment, copyright 1977, 1971,

28  1988, by the American Medical Association, shall be the

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

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

31  division rule of a uniform disability rating schedule, the

                                  48

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  Minnesota Department of Labor and Industry Disability Schedule

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

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

  4  Impairment by the American Medical Association shall be used.

  5  Determination of permanent impairment under this schedule must

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

  7  osteopathic medicine licensed under chapters 458 and 459, a

  8  chiropractic physician licensed under chapter 460, a podiatric

  9  physician licensed under chapter 461, an optometrist licensed

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

11  appropriate considering the nature of the injury. No other

12  persons are authorized to render opinions regarding the

13  existence of or the extent of permanent impairment.

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

15  impairment rating using the impairment schedule referred to in

16  subparagraph 2. Impairment income benefits are paid biweekly

17  weekly at the rate of 66 2/3  50 percent of the employee's

18  average weekly wage temporary total disability benefit not to

19  exceed the maximum weekly benefit under s. 440.12. An

20  employee's entitlement to impairment income benefits begins

21  the day after the employee reaches maximum medical improvement

22  or the expiration of temporary benefits, whichever occurs

23  earlier, and continues until the earlier of:

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

25  3 weeks for each percentage point of impairment; or

26         b.  The death of the employee.

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

28  as having reached maximum medical improvement or 6 weeks

29  before the expiration of temporary benefits, whichever occurs

30  earlier, the certifying doctor shall evaluate the condition of

31  the employee and assign an impairment rating, using the

                                  49

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  impairment schedule referred to in subparagraph 2.

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

  3  emotional injury arising out of depression from being out of

  4  work or from preexisting mental, psychological, or emotional

  5  conditions. If the certification and evaluation are performed

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

  7  certification and evaluation must be submitted to the treating

  8  doctor, and the treating doctor must indicate agreement or

  9  disagreement with the certification and evaluation. The

10  certifying doctor shall issue a written report to the

11  division, the employee, and the carrier certifying that

12  maximum medical improvement has been reached, stating the

13  impairment rating, and providing any other information

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

15  certified as having reached maximum medical improvement before

16  the expiration of 102 weeks after the date temporary total

17  disability benefits begin to accrue, the carrier shall notify

18  the treating doctor of the requirements of this section.

19         5.  The carrier shall pay the employee impairment

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

21         6.  The division may by rule specify forms and

22  procedures governing the method of payment of wage loss and

23  impairment benefits for dates of accidents before January 1,

24  1994, and impairment benefits for dates of accidents on or

25  after January 1, 1994.

26         (10)  EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER

27  AND FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE

28  ACT.--

29         (a)  Weekly compensation benefits payable under this

30  chapter for disability resulting from injuries to an employee

31  who becomes eligible for benefits under 42 U.S.C. s. 423 shall

                                  50

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  be reduced to an amount whereby the sum of such compensation

  2  benefits payable under this chapter and such total benefits

  3  otherwise payable for such period to the employee and her or

  4  his dependents, had such employee not been entitled to

  5  benefits under this chapter, under 42 U.S.C. s. ss. 402 or 42

  6  U.S.C. s. and 423, does not exceed 80 percent of the

  7  employee's average weekly wage. However, this provision shall

  8  not operate to reduce an injured worker's benefits under this

  9  chapter to a greater extent than such benefits would have

10  otherwise been reduced under 42 U.S.C. s. 424(a). This

11  reduction of compensation benefits is not applicable to any

12  compensation benefits payable for any week subsequent to the

13  week in which the injured worker reaches the age of 62 years.

14         Section 11.  Subsections (1) and (2) of section

15  440.151, Florida Statutes, are amended to read:

16         440.151  Occupational diseases.--

17         (1)(a)  Where the employer and employee are subject to

18  the provisions of the Workers' Compensation Law, the

19  disablement or death of an employee resulting from an

20  occupational disease as hereinafter defined shall be treated

21  as the happening of an injury by accident, notwithstanding any

22  other provisions of this chapter, and the employee or, in case

23  of death, the employee's dependents shall be entitled to

24  compensation as provided by this chapter, except as

25  hereinafter otherwise provided; and the practice and procedure

26  prescribed by this chapter shall apply to all proceedings

27  under this section, except as hereinafter otherwise provided.

28  Provided, however, that in no case shall an employer be liable

29  for compensation under the provisions of this section unless

30  such disease has resulted from the nature of the employment in

31  which the employee was engaged under such employer and was

                                  51

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  actually contracted while so engaged, meaning by "nature of

  2  the employment" that to the occupation in which the employee

  3  was so engaged there is attached a particular hazard of such

  4  disease that distinguishes it from the usual run of

  5  occupations, or the incidence of such disease is substantially

  6  higher in the occupation in which the employee was so engaged

  7  than in the usual run of occupations, or, in case of death,

  8  unless death follows continuous disability from such disease,

  9  commencing within the period above limited, for which

10  compensation has been paid or awarded, or timely claim made as

11  provided in this section, and results within 350 weeks after

12  such last exposure.

13         (b)  No compensation shall be payable for an

14  occupational disease if the employee, at the time of entering

15  into the employment of the employer by whom the compensation

16  would otherwise be payable, falsely represents herself or

17  himself in writing as not having previously been disabled,

18  laid off or compensated in damages or otherwise, because of

19  such disease.

20         (c)  Where an occupational disease is aggravated by any

21  other disease or infirmity, not itself compensable, or where

22  disability or death from any other cause, not itself

23  compensable, is aggravated, prolonged, accelerated or in

24  anywise contributed to by an occupational disease, the

25  compensation payable shall be reduced and limited to such

26  proportion only of the compensation that would be payable if

27  the occupational disease were the sole cause of the disability

28  or death as such occupational disease, as a causative factor,

29  bears to all the causes of such disability or death, such

30  reduction in compensation to be effected by reducing the

31  number of weekly or monthly payments or the amounts of such

                                  52

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  payments, as under the circumstances of the particular case

  2  may be for the best interest of the claimant or claimants.

  3         (d)  No compensation for death from an occupational

  4  disease shall be payable to any person whose relationship to

  5  the deceased, which under the provisions of this Workers'

  6  Compensation Law would give right to compensation, arose

  7  subsequent to the beginning of the first compensable

  8  disability, save only to afterborn children of a marriage

  9  existing at the beginning of such disability.

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

11  death resulting from tuberculosis arising out of and in the

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

13  tuberculosis hospital, or aggravated by such employment, when

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

15  to the commencement of such employment.

16         (f)  Both causation and sufficient exposure to support

17  causation must be proven by clear and convincing evidence.

18         (2)  As Whenever used in this section, the term

19  "occupational disease" means shall be construed to mean only a

20  disease that which is due to causes and conditions that which

21  are characteristic of and peculiar to a particular trade,

22  occupation, process, or employment, and excludes to exclude

23  all ordinary diseases of life to which the general public is

24  exposed, unless the incidence of the disease is substantially

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

26  employment than for the general public. The term "occupational

27  disease" does not include any disease for which there are no

28  epidemiological studies showing that exposure to the specific

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

30  exposed, can cause the precise disease sustained by the

31  employee.

                                  53

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         Section 12.  Subsection (7) of section 440.185, Florida

  2  Statutes, is amended to read:

  3         440.185  Notice of injury or death; reports; penalties

  4  for violations.--

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

  6  21 calendar days after the effective date issuance of a new

  7  policy or contract of insurance such policy information as the

  8  division may require, including notice of whether the policy

  9  is a minimum premium policy. Notice of cancellation or

10  expiration of a policy as set out in s. 440.42(3) shall be

11  filed with mailed to the division in accordance with rules

12  adopted promulgated by the division under chapter 120.

13         Section 13.  Section 440.191, Florida Statutes, is

14  amended to read:

15         440.191  Employee Assistance and Ombudsman Office.--

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

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

18  construed to permit injured employees and employers or the

19  employer's carrier to resolve disagreements without undue

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

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

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

23  carriers, service providers, health care providers, managed

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

25  attempt to resolve disagreements in good faith and to

26  cooperate with the division's efforts to resolve disagreements

27  between the parties. The division may by rule prescribe

28  definitions that are necessary for the effective

29  administration of this section.

30         (b)  An Employee Assistance and Ombudsman Office is

31  created within the Division of Workers' Compensation to inform

                                  54

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  care providers in fulfilling their responsibilities under this

  3  chapter. The division may by rule specify forms and procedures

  4  for administering requests for assistance provided by this

  5  section.

  6         (c)  The Employee Assistance and Ombudsman Office,

  7  Division of Workers' Compensation, shall be a resource

  8  available to all employees who participate in the workers'

  9  compensation system and shall take all steps necessary to

10  educate and disseminate information to employees and

11  employers. The Employee Assistance and Ombudsman Office may

12  participate in an early intervention program. Upon

13  notification of an industrial accident, the office may contact

14  the injured employee and advise the employee of his or her

15  rights and responsibilities under this chapter and of the

16  services available to him or her under this section.

17         (d)  All medical-only claims of $5,000 or less,

18  disputed issues as to the average weekly wage or

19  medical-mileage reimbursement, or disputed issues as to

20  independent medical examinations shall be determined with or

21  without a hearing by a judge of compensation claims who has

22  jurisdiction over the dispute. If the judge of compensation

23  claims decides that a hearing is necessary, neither party may

24  be represented by counsel during the hearing. Such matters

25  must be handled pursuant to rules adopted by the Division of

26  Administrative Hearings. Any order of the judge of

27  compensation claims is reviewable under s. 440.271.

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

29  any benefit under this chapter unless the employee has

30  exhausted the procedures for informal dispute resolution under

31  this section.

                                  55

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  fails to provide benefits to which the employee believes she

  3  or he is entitled, the employee shall file with the division,

  4  the employer, the carrier, the carrier's attorney, the

  5  Division of Administrative Hearings, and the judge of

  6  compensation claims who has jurisdiction over the petition for

  7  benefits a petition for benefits that meets the requirements

  8  of s. 440.192(1), (2), and (3) contact the office to request

  9  assistance in resolving the dispute. The office may shall

10  investigate the dispute and may shall attempt to facilitate an

11  agreement between the employee and the employer or carrier.

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

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

14  documents or other information that it may require in

15  connection with its efforts under this section.

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

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

18  disputes quickly and in the most efficient manner possible.

19  Settlement agreements resulting from such conferences must be

20  submitted to the Office of the Judges of Compensation Claims

21  for approval.

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

23  may assign an ombudsman to assist the employee in resolving

24  the disputed issue presented or dispute. if the disputed

25  issues presented in the petition for benefits are dispute is

26  not resolved within 30 days after the employee files the

27  petition for benefits contacts the office, the ombudsman

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

29  drafting a petition for benefits and explain the procedures

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

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

                                  56

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  Assistance and Ombudsman Office may not represent employees

  2  before the judges of compensation claims. An employer or

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

  4  employee for services rendered or costs incurred in connection

  5  with this section, unless expressly authorized elsewhere in

  6  this chapter.

  7         Section 14.  Section 440.192, Florida Statutes, is

  8  amended to read:

  9         440.192  Procedure for resolving benefit disputes.--

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

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

12  entitled under this chapter shall serve by certified mail upon

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

14  Tallahassee a petition for benefits that meets the

15  requirements of this section. The division shall refer the

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

17         (1)(2)  The Office of the Judges of Compensation Claims

18  shall review each petition and shall dismiss each petition, or

19  any portion of a petition, upon its own motion or upon the

20  motion of any party, which that does not on its face

21  specifically identify or itemize the following:

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

23  security number of the employee.

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

25  employer.

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

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

28  date of any accident.

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

30  responsibilities, and work the employee was performing when

31  the injury occurred.

                                  57

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  timely provided and the specific classification of

  3  compensation that was not timely provided.

  4         (f)  The medical treatment that has been recommended by

  5  an authorized treating physician but has not been provided. A

  6  copy of the written documentation by the authorized treating

  7  physician who recommended such care must be attached to the

  8  petition.

  9         (g)(f)  Date of maximum medical improvement, character

10  of disability, and specific statement of all benefits or

11  compensation that the employee is seeking.

12         (h)(g)  The specific All travel costs to which the

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

14  travel and purpose of travel, means of transportation, and

15  mileage, including the date the request was filed with the

16  carrier and a copy of the request that was filed.

17         (i)(h)  Specific listing of all medical charges alleged

18  unpaid, including the name and address of the medical

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

20  treatment.

21         (j)(i)  The type or nature of treatment care or

22  attendance sought and the justification for such treatment.

23         (k)(j)  Specific explanation of any other disputed

24  issue that a judge of compensation claims will be called to

25  rule upon.

26         (l)  If the petition is for average weekly wage, the

27  petition must include a copy of the 13-week wage statement and

28  the specific details as to why the 13-week wage statement is

29  incorrect, including the check stubs or other documentation to

30  support the petition. If the issue is concurrent employment,

31  the name and address of the concurrent employer, all check

                                  58

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  stubs, days worked, and the amount that should be included in

  2  the average weekly wage and the reason therefor.

  3         (2)  The dismissal of any petition or any portion of a

  4  petition under this section shall be without prejudice and

  5  shall not require a hearing.

  6         (3)  A petition for benefits may contain a claim for

  7  past benefits and continuing benefits in any benefit category,

  8  but is limited to those in default and ripe, due, and owing on

  9  the date the petition is filed. If the employer has elected to

10  satisfy its obligation to provide medical treatment, care, and

11  attendance through a managed care arrangement designated under

12  this chapter, the employee must exhaust all managed care

13  grievance procedures before filing a petition for benefits

14  under this section.

15         (4)  The petition must include a certification by the

16  claimant or, if the claimant is represented by counsel, the

17  claimant's attorney, stating that the claimant, or attorney if

18  the claimant is represented by counsel, has made a good faith

19  effort to resolve the dispute and that the claimant or

20  attorney was unable to resolve the dispute with the carrier.

21         (4)(5)  All motions to dismiss must state with

22  particularity the basis for the motion. The judge of

23  compensation claims shall enter an order upon such motions

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

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

26  specificity under this subsection, the claimant must be

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

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

29  for lack of specificity under this section may be raised up to

30  the time of filing of the pretrial stipulation not asserted

31

                                  59

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  within 30 days after receipt of the petition for benefits are

  2  thereby waived.

  3         (5)(6)  If the claimant is not represented by counsel,

  4  the Office of the Judges of Compensation Claims may request

  5  the Employee Assistance and Ombudsman Office to assist the

  6  claimant in filing a petition that meets the requirements of

  7  this section.

  8         (6)(7)  Notwithstanding the provisions of s. 440.34, a

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

10  payable by the carrier for services expended or costs incurred

11  prior to the 30 days after the filing of a petition that does

12  not meet the requirements of this section.

13         (7)(8)  Within 30 14 days after receipt of a petition

14  for benefits by certified mail, the carrier must either pay

15  the requested benefits without prejudice to its right to deny

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

17  response to petition notice of denial with the division. The

18  carrier must list all benefits requested but not paid and

19  explain its justification for nonpayment in the response to

20  petition notice of denial. The carrier must also state those

21  benefits that have been paid or authorized, or both, in the

22  response to petition. A carrier that does not deny

23  compensability in accordance with s. 440.20(4) is deemed to

24  have accepted the employee's injuries as compensable, unless

25  it can establish material facts relevant to the issue of

26  compensability that could not have been discovered through

27  reasonable investigation within the 120-day period. The

28  carrier shall provide copies of the notice to the filing

29  party, employer, and claimant by certified mail.

30

31

                                  60

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         Section 15.  Paragraph (a) of subsection (1) and

  2  subsections (6), (7), and (11) of section 440.20, Florida

  3  Statutes, are amended to read:

  4         440.20  Time for payment of compensation; penalties for

  5  late payment.--

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

  7  to benefits, the carrier shall pay compensation directly to

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

  9  accordance with the obligations set forth in such sections. If

10  authorized by the employee, the carrier's obligation to pay

11  compensation directly to the employee is satisfied when the

12  carrier directly deposits, by electronic transfer or other

13  means, compensation into the employee's bank account or into a

14  bank account that has been established by the carrier for the

15  employee. Compensation by direct deposit is considered paid on

16  the date the funds become available for withdrawal by the

17  employee.

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

19  dependency benefits, disability, permanent impairment, or wage

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

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

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

23  installment a punitive penalty of an amount equal to 20

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

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

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

27  unless such nonpayment results from conditions over which the

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

29  compensation payable without an order award has not been paid

30  within 7 days after it became due and the claimant concludes

31  the prosecution of the claim before a judge of compensation

                                  61

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  claims without having specifically claimed additional

  2  compensation in the nature of a penalty under this section,

  3  the claimant will be deemed to have acknowledged that, owing

  4  to conditions over which the employer or carrier had no

  5  control, such installment could not be paid within the period

  6  prescribed for payment and to have waived the right to claim

  7  such penalty. However, during the course of a hearing, the

  8  judge of compensation claims shall on her or his own motion

  9  raise the question of whether such penalty should be awarded

10  or excused. The division may assess without a hearing the

11  punitive penalty against either the employer or the insurance

12  carrier, depending upon who was at fault in causing the delay.

13  The insurance policy cannot provide that this sum will be paid

14  by the carrier if the division or the judge of compensation

15  claims determines that the punitive penalty should be made by

16  the employer rather than the carrier. Any additional

17  installment of compensation paid by the carrier pursuant to

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

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

20  employee's bank account or into a bank account that has been

21  established by the carrier for the employee.

22         (7)  If any compensation, payable under the terms of an

23  order award, is not paid within 30 7 days after it becomes

24  due, there shall be added to such unpaid compensation an

25  amount equal to 20 percent thereof, which shall be paid at the

26  same time as, but in addition to, such compensation, unless

27  review of the compensation order making such award is had as

28  provided in s. 440.25.

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

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

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

                                  62

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  future payments of compensation expenses and any other

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

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

  4  written notice of denial within 120 days after the employer

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

  6  compensation claims at a hearing to consider the settlement

  7  proposal finds a justiciable controversy as to legal or

  8  medical compensability of the claimed injury or the alleged

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

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

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

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

13  of the claimant for any settlement under this section unless

14  expressly authorized elsewhere in this chapter. Upon the joint

15  petition of all interested parties and after giving due

16  consideration to the interests of all interested parties, the

17  judge of compensation claims shall may enter a compensation

18  order approving and authorizing the discharge of the liability

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

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

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

22  upon joint petition of all interested parties is not subject

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

24  proposal together with supporting evidence is not approved by

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

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

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

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

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

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

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

                                  63

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  such reports filed under this subsection annually by September

  2  15.

  3         (b)  Upon joint petition of all interested parties, a

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

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

  6  future payments of compensation and rehabilitation expenses,

  7  and any other benefits provided under this chapter, may be

  8  allowed at any time in any case after the injured employee has

  9  attained maximum medical improvement. An employer or carrier

10  may not pay any attorney's fees on behalf of the claimant for

11  any settlement, unless expressly authorized elsewhere in this

12  chapter. A compensation order so entered upon joint petition

13  of all interested parties shall not be subject to modification

14  or review under s. 440.28. When the claimant is not

15  represented by an attorney, However, a judge of compensation

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

17  payment when it is determined by the judge of compensation

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

19  of benefits the claimant would be entitled to under this

20  chapter. the judge of compensation claims shall make or cause

21  to be made such investigations as she or he considers

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

23  that a proposed final settlement of liability of the employer

24  for compensation shall not be subject to modification or

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

26  disposition will definitely aid the rehabilitation of the

27  injured worker or otherwise is clearly for the best interests

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

29  discretion, may have an investigation made by the

30  Rehabilitation Section of the Division of Workers'

31  Compensation. The joint petition and the report of any

                                  64

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

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

  3  pursuant to this subsection which relates to the discharge of

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

  5  hearing. The carrier shall provide reasonable notice to the

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

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

  8  the claimant is represented by counsel or when the claimant

  9  and carrier or employer are represented by counsel, final

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

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

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

13  petition and stipulation without a hearing, unless the judge

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

15  that additional testimony is needed before such settlement can

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

17  probability of the death of the injured employee or other

18  person entitled to compensation before the expiration of the

19  period during which such person is entitled to compensation

20  shall, in the absence of special circumstances making such

21  course improper, be determined in accordance with the most

22  recent United States Life Tables published by the National

23  Office of Vital Statistics of the United States Department of

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

25  any other contingency affecting the amount or duration of the

26  compensation, except the possibility of the remarriage of a

27  surviving spouse, shall not be disregarded. As a condition of

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

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

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

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

                                  65

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  unaccrued future payments so paid may be recovered or recouped

  2  by the employer or carrier. Such applications shall be

  3  considered and determined in accordance with s. 440.25.

  4         (c)  This section applies to all claims that the

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

  6  accident.

  7         Section 16.  Section 440.22, Florida Statutes, is

  8  amended to read:

  9         440.22  Assignment and exemption from claims of

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

11  compensation or benefits due or payable under this chapter

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

13  compensation and benefits shall be exempt from all claims of

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

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

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

17  compensation claims from creditors does not extend to claims

18  based on an award of child support or alimony.

19         Section 17.  Section 440.25, Florida Statutes, is

20  amended to read:

21         440.25  Procedures for mediation and hearings.--

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

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

24  petition shall be held. Within 40 7 days after a such petition

25  for benefits is filed under s. 440.192, the judge of

26  compensation claims shall notify the interested parties that a

27  mediation conference concerning such petition has been

28  scheduled will be held. All pending petitions that have been

29  filed for 30 days must be scheduled for mediation at the same

30  time. Such notice shall give the date, time, and location of

31  the mediation conference. Such notice may be served personally

                                  66

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  upon the interested parties or may be sent to the interested

  2  parties by mail. Such mediation must be held within 60 days

  3  after the filing of the petition, unless there is a showing of

  4  good cause presented to the judge of compensation claims. If

  5  the judge of compensation claims grants a continuance, the

  6  date of the rescheduled mediation must be set forth in the

  7  order, and the mediation must be held on that date. However,

  8  if the employee and the employer/carrier are represented by

  9  counsel, the representative of the employer/carrier may attend

10  the mediation via telephone if the representative lives

11  outside the county where the mediation is being held. A

12  mediation conference may not be used for the sole purpose of

13  mediating attorney's fees.

14         (2)  Any party who participates in a mediation

15  conference shall not be precluded from requesting a hearing

16  following the mediation conference should both parties not

17  agree to be bound by the results of the mediation conference.

18  A mediation conference is required to be held unless this

19  requirement is waived by the Chief Judge. No later than 3 days

20  prior to the mediation conference, all parties must submit any

21  applicable motions, including, but not limited to, a motion to

22  waive the mediation conference, to the judge of compensation

23  claims.

24         (3)  Such a mediation conference shall be conducted

25  informally and does not require the use of formal rules of

26  evidence or procedure. Any information from the files,

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

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

29  mediation conference under this section obtained by any person

30  performing mediation duties is privileged and confidential and

31  may not be disclosed without the written consent of all

                                  67

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  parties to the conference. Any research or evaluation effort

  2  directed at assessing the mediation program activities or

  3  performance must protect the confidentiality of such

  4  information. Each party to a mediation conference has a

  5  privilege during and after the conference to refuse to

  6  disclose and to prevent another from disclosing communications

  7  made during the conference whether or not the contested issues

  8  are successfully resolved. This subsection and paragraphs

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

10  the discovery or admissibility of any information that is

11  otherwise subject to discovery or that is admissible under

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

13  or statements made during a mediation conference or in

14  negotiations concerning the conference are inadmissible in any

15  proceeding under this chapter. The Division of Administrative

16  Hearings shall maintain a list of mediators who have been

17  certified under s. 44.106. Mediators shall be compensated and

18  paid by the employer/carrier according to rules adopted by the

19  Supreme Court as set forth in s. 44.102(5)(b). The Chief Judge

20  shall select a mediator. The mediator shall be employed on a

21  full-time basis by the Office of the Judges of Compensation

22  Claims. A mediator must be a member of The Florida Bar, for at

23  least 5 years and must complete a mediation training program

24  pursuant to s. 44.106, and must be certified by the division

25  as having completed a workers' compensation training program

26  approved by the Chief Judge. Adjunct mediators may be employed

27  by the Office of the Judges of Compensation Claims on an

28  as-needed basis and shall be selected from a list prepared by

29  the Chief Judge. An adjunct mediator must be independent of

30  all parties participating in the mediation conference. An

31  adjunct mediator must be a member of The Florida Bar for at

                                  68

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  least 5 years and must complete a mediation training program

  2  approved by the Chief Judge. An adjunct mediator shall have

  3  access to the office, equipment, and supplies of the judge of

  4  compensation claims in each district. In the event both

  5  parties agree, the results of the mediation conference shall

  6  be binding and neither party shall have a right to appeal the

  7  results. If In the event either party refuses to agree at to

  8  the results of the mediation conference, the results of the

  9  mediation conference as well as the testimony, witnesses, and

10  evidence presented at the conference shall not be admissible

11  at any subsequent proceeding on the claim. The mediator shall

12  not be called in to testify or give deposition to resolve any

13  claim for any hearing before the judge of compensation claims.

14  The employer may be represented by an attorney at the

15  mediation conference if the employee is also represented by an

16  attorney at the mediation conference.

17         (4)(a)  If, on the 7th 10th day following commencement

18  of mediation, the questions in dispute have not been resolved,

19  the judge of compensation claims shall schedule hold a

20  pretrial hearing to be held within 90 days after the filing of

21  the petition. The judge of compensation claims shall give the

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

23  pretrial hearing by mail. The notice must give the time, date,

24  and location of the pretrial conference. At the pretrial

25  hearing, The judge of compensation claims shall, subject to

26  paragraph (b), set a date for the final hearing that allows

27  the parties 90 at least 30 days after the date of the pretrial

28  conference to conduct discovery unless the parties consent to

29  an earlier hearing date.

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

31  within 210 45 days after the filing of the petition pretrial

                                  69

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  hearing. Continuances may be granted only if the requesting

  2  party demonstrates to the judge of compensation claims that

  3  the reason for requesting the continuance arises from

  4  unforseeable circumstances beyond the party's control. Any

  5  order on a continuance must set forth the date of that

  6  rescheduled final hearing.

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

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

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

10         (c)(d)  The hearing shall be held in the county where

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

12  unless otherwise agreed to between the parties and authorized

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

14  injury occurred. If the injury occurred without the state and

15  is one for which compensation is payable under this chapter,

16  then the hearing above referred to may be held in the county

17  of the employer's residence or place of business, or in any

18  other county of the state which will, in the discretion of the

19  Chief Judge, be the most convenient for a hearing. The hearing

20  shall be conducted by a judge of compensation claims, who

21  shall, within 14 days after final hearing, unless otherwise

22  agreed by the parties, determine the dispute in a summary

23  manner. At such hearing, the claimant and employer may each

24  present evidence in respect of such claim and may be

25  represented by any attorney authorized in writing for such

26  purpose. When there is a conflict in the medical evidence

27  submitted at the hearing, the provisions of s. 440.13 shall

28  apply. The report or testimony of the expert medical advisor

29  shall be made a part of the record of the proceeding and shall

30  be given the same consideration by the judge of compensation

31  claims as is accorded other medical evidence submitted in the

                                  70

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  proceeding; and all costs incurred in connection with such

  2  examination and testimony may be assessed as costs in the

  3  proceeding, subject to the provisions of s. 440.13. No judge

  4  of compensation claims may make a finding of a degree of

  5  permanent impairment that is greater than the greatest

  6  permanent impairment rating given the claimant by any

  7  examining or treating physician, except upon stipulation of

  8  the parties.

  9         (d)(e)  The order making an award or rejecting the

10  claim, referred to in this chapter as a "compensation order,"

11  shall set forth the findings of ultimate facts and the

12  mandate; and the order need not include any other reason or

13  justification for such mandate. The compensation order shall

14  be filed in the office of the division at Tallahassee. A copy

15  of such compensation order shall be sent by mail to the

16  parties and attorneys of record at the last known address of

17  each, with the date of mailing noted thereon.

18         (e)(f)  Each judge of compensation claims is required

19  to submit a special report to the Chief Judge in each

20  contested workers' compensation case in which a final order is

21  not issued the case is not determined within 30 14 days after

22  the of final hearing. Said form shall be provided by the Chief

23  Judge and shall contain the names of the judge of compensation

24  claims and of the attorneys involved and a brief explanation

25  by the judge of compensation claims as to the reason for such

26  a delay in issuing a final order. The Chief Judge shall

27  compile these special reports into an annual public report to

28  the Governor, the Secretary of Labor and Employment Security,

29  the Legislature, The Florida Bar, and the appellate district

30  judicial nominating commissions.

31

                                  71

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (f)(g)  Judges of compensation claims shall adopt and

  2  enforce uniform local rules for workers' compensation.

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

  4  section, the judge of compensation claims may require the

  5  appearance of the parties and counsel before her or him

  6  without written notice for an emergency conference where there

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

  8  welfare of an employee. An emergency conference under this

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

10  of an adjudication by the judge of compensation claims.

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

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

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

14  resolution of appropriate motions by judges of compensation

15  claims without oral hearing upon submission of brief written

16  statements in support and opposition, and for expedited

17  discovery and docketing.

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

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

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

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

22  compelling evidence to the contrary, be presumed to be

23  appropriate for expedited resolution under this paragraph; and

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

25  written agreement of both parties and application by either

26  party, may similarly be resolved under this paragraph. For

27  purposes of expedited resolution pursuant to this paragraph,

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

29  expedited and limited discovery and expedited docketing in

30  such cases. At least 15 days prior to hearing, the parties

31  shall exchange and file with the judge of compensation claims

                                  72

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  a pretrial outline of all issues, defenses, and witnesses on a

  2  form promulgated by the Chief Judge; provided, in no event

  3  shall such hearing be held without 15 days' written notice to

  4  all parties. No pretrial hearing shall be held. The judge of

  5  compensation claims shall limit all argument and presentation

  6  of evidence at the hearing to a maximum of 30 minutes, and

  7  such hearings shall not exceed 30 minutes in length. Neither

  8  party shall be required to be represented by counsel. The

  9  employer or carrier may be represented by an adjuster or other

10  qualified representative. The employer or carrier and any

11  witness may appear at such hearing by telephone. The rules of

12  evidence shall be liberally construed in favor of allowing

13  introduction of evidence.

14         (j)  A Motion to Dismiss for Lack of Prosecution may be

15  filed if it appears that no record activity has been taken on

16  a petition for a period of 1 year, regardless of whether or

17  not compensation or medical benefits have been or are being

18  paid. The judge shall, on his or her own motion or on a motion

19  by a party in the judge's discretion, determine if a hearing

20  is necessary and serve notice of hearing on the parties by

21  regular mail at their last known addresses. The notice to

22  dismiss shall be granted by the judge without a hearing or by

23  the judge with a hearing unless a party shows good cause why

24  the petition should remain pending.

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

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

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

28         (5)(a)  Procedures with respect to appeals from orders

29  of judges of compensation claims shall be governed by rules

30  adopted by the Supreme Court. Such an order shall become final

31

                                  73

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  30 days after mailing of copies of such order to the parties,

  2  unless appealed pursuant to such rules.

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

  4  filing fee by filing a verified petition of indigency for

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

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

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

  8  estimated costs for the preparation is served, the appellant

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

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

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

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

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

14  record costs shall contain a sworn statement that the

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

16  financial affidavit showing all the appellant's assets,

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

18  assets and income, including marital assets and income, shall

19  be grounds for denying the petition with prejudice. The

20  division shall promulgate rules as may be required pursuant to

21  this subsection, including forms for use in all petitions

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

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

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

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

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

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

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

29  particularity the specific legal and factual grounds for the

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

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

                                  74

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  costs shall be served upon all interested parties, including

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

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

  4  compensation claims shall promptly conduct a hearing on the

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

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

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

  8  proceedings. The judge of compensation claims may enter an

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

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

11  verified petition relating to record costs. Such proceedings

12  shall be conducted in accordance with the provisions of this

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

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

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

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

17  Compensation Trust Fund pending final disposition of the costs

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

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

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

21  insolvency petition is denied, the judge of compensation

22  claims may enter an order requiring the petitioner to

23  reimburse the division for costs incurred in opposing the

24  petition, including investigation and travel expenses.

25         (c)  As a condition of filing a notice of appeal to the

26  District Court of Appeal, First District, an employer who has

27  not secured the payment of compensation under this chapter in

28  compliance with s. 440.38 shall file with the notice of appeal

29  a good and sufficient bond, as provided in s. 59.13,

30  conditioned to pay the amount of the demand and any interest

31  and costs payable under the terms of the order if the appeal

                                  75

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  is dismissed, or if the District Court of Appeal, First

  2  District, affirms the award in any amount. Upon the failure of

  3  such employer to file such bond with the judge of compensation

  4  claims or the District Court of Appeal, First District, along

  5  with the notice of appeal, the District Court of Appeal, First

  6  District, shall dismiss the notice of appeal.

  7         (6)  An award of compensation for disability may be

  8  made after the death of an injured employee.

  9         (7)  An injured employee claiming or entitled to

10  compensation shall submit to such physical examination by a

11  certified expert medical advisor approved by the division or

12  the judge of compensation claims as the division or the judge

13  of compensation claims may require. The place or places shall

14  be reasonably convenient for the employee. Such physician or

15  physicians as the employee, employer, or carrier may select

16  and pay for may participate in an examination if the employee,

17  employer, or carrier so requests. Proceedings shall be

18  suspended and no compensation shall be payable for any period

19  during which the employee may refuse to submit to examination.

20  Any interested party shall have the right in any case of death

21  to require an autopsy, the cost thereof to be borne by the

22  party requesting it; and the judge of compensation claims

23  shall have authority to order and require an autopsy and may,

24  in her or his discretion, withhold her or his findings and

25  award until an autopsy is held.

26         Section 18.  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, peer-review reports pursuant to utilization

                                  76

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  review, and independent medical examinations 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 19.  Section 440.34, Florida Statutes, is

  9  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, no fees are payable

24  on the issue of average weekly wage, on medical issues under

25  $5,000, on medical mileage, or on issues relating to

26  independent medical examinations. However, the judge of

27  compensation claims shall consider the following factors in

28  each case and may increase or decrease the attorney's fee if,

29  in her or his judgment, the circumstances of the particular

30  case warrant such action:

31

                                  77

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  difficulty of the questions involved, and the skill requisite

  3  to perform the legal service properly.

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

  5  similar legal services.

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

  7  benefits resulting to the claimant.

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

  9  circumstances.

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

11  lawyer or lawyers performing services.

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

13         (2)  In awarding a reasonable claimant's attorney's

14  fee, the judge of compensation claims shall consider only

15  those benefits to the claimant that the attorney is

16  responsible for securing. The amount, statutory basis, and

17  type of benefits obtained through legal representation shall

18  be listed on all attorney's fees awarded by the judge of

19  compensation claims. For purposes of this section, the term

20  "benefits secured" means benefits obtained as a result of the

21  claimant's attorney's legal services rendered in connection

22  with the claim for benefits. However, such term does not

23  include future medical benefits to be provided on any date

24  more than 5 years after the date the claim is filed.

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

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

27  taxed against the employer the reasonable costs of such

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

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

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

31

                                  78

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  carrier or employer:

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

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

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

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

  7  benefits, arising out of the same accident; or

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

  9  a notice of denial with the division and the injured person

10  has employed an attorney in the successful prosecution of the

11  claim; or

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

13  denies that an injury occurred for which compensation benefits

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

15  compensability; or

16         (d)  In cases where the claimant successfully prevails

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

18

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

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

21  compensation claims must only consider only such benefits and

22  the time reasonably spent in obtaining them as were secured

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

24  and (d).

25         (4)  In such cases in which the claimant is responsible

26  for the payment of her or his own attorney's fees, such fees

27  are a lien upon compensation payable to the claimant,

28  notwithstanding s. 440.22.

29         (5)  If any proceedings are had for review of any

30  claim, award, or compensation order before the Workers'

31  Compensation Appeals Commission or appellate any court, the

                                  79

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  court may award the injured employee or dependent an

  2  attorney's fee to be paid by the employer or carrier, in its

  3  discretion, which shall be paid as the court may direct;

  4  however, such a fee must be at an hourly rate of $125 or less

  5  and may not exceed $3,000 per appeal.

  6         (6)  A judge of compensation claims may not enter an

  7  order approving the contents of a retainer agreement that

  8  permits the escrowing of any portion of the employee's

  9  compensation until benefits have been secured.

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

11  Florida Statutes, to read:

12         440.39  Compensation for injuries when third persons

13  are liable.--

14         (8)  This section does not impose on the employer a

15  duty to preserve evidence pertaining to the industrial

16  accident or to injuries arising therefrom.

17         Section 21.  Subsection (3) of section 440.42, Florida

18  Statutes, is amended to read:

19         440.42  Insurance policies; liability.--

20         (3)  Each No contract or policy of insurance issued by

21  a carrier under this chapter shall expire 1 year after the

22  effective date of the contract or policy. A contract or policy

23  of insurance issued by a carrier may not or be canceled before

24  its expiration date unless until at least 30 days have elapsed

25  after a notice of such cancellation has been sent by the

26  carrier to the division and to the employer in accordance with

27  the provisions of s. 440.185(7).  However, when duplicate or

28  dual coverage exists by reason of two different carriers

29  having issued policies of insurance to the same employer

30  securing the same liability, it shall be presumed that only

31  that policy with the later effective date shall be in force

                                  80

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  and that the earlier policy terminated upon the effective date

  2  of the latter. If In the event that both policies carry the

  3  same effective date, one of the policies may be canceled

  4  instanter upon filing a notice of cancellation with the

  5  division and serving a copy thereof upon the employer in such

  6  manner as the division prescribes by rule. The division may by

  7  rule prescribe the content of the notice of retroactive

  8  cancellation and specify the time, place, and manner in which

  9  the notice of cancellation is to be served.

10         Section 22.  Section 440.45, Florida Statutes, is

11  amended to read:

12         440.45  Office of the Judges of Compensation Claims.--

13         (1)(a)  There is hereby created the Office of the

14  Judges of Compensation Claims within the Department of

15  Management Services Labor and Employment Security. The Office

16  of the Judges of Compensation Claims shall be headed by the

17  Deputy Chief Judge of Compensation Claims. The Deputy Chief

18  Judge shall report to the director of the Division of

19  Administrative Hearings a Chief Judge.  The Deputy Chief Judge

20  shall be appointed by the Governor for a term of 4 years from

21  a list of three names submitted by the statewide nominating

22  commission created under subsection (2). The Deputy Chief

23  Judge must demonstrate prior administrative experience and

24  possess the same qualifications for appointment as a judge of

25  compensation claims, and the procedure for reappointment of

26  the Deputy Chief Judge will be the same as for reappointment

27  of a judge of compensation claims. The office shall be a

28  separate budget entity and the director of the Division of

29  Administrative Hearings Chief Judge shall be its agency head

30  for all purposes.  The Department of Management Services Labor

31  and Employment Security shall provide administrative support

                                  81

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  and service to the office to the extent requested by the

  2  director of the Division of Administrative Hearings Chief

  3  Judge but shall not direct, supervise, or control the Office

  4  of the Judges of Compensation Claims in any manner, including,

  5  but not limited to, personnel, purchasing, budgetary matters,

  6  or property transactions. The operating budget of the Office

  7  of the Judges of Compensation Claims shall be paid out of the

  8  Workers' Compensation Administration Trust Fund established in

  9  s. 440.50.

10         (b)  The current term of the Chief Judge of

11  Compensation Claims expires July 1, 2001. The position of

12  Deputy Chief Judge of Compensation Claims is created and

13  becomes effective July 1, 2001.

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

15  compensation claims to conduct proceedings as required by this

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

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

18  member of The Florida Bar in good standing for the prior 5

19  years and is experienced knowledgeable in the practice of law

20  of workers' compensation. No judge of compensation claims

21  shall engage in the private practice of law during a term of

22  office.

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

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

25  three persons nominated by a statewide nominating commission.

26  The statewide nominating commission shall be composed of the

27  following:

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

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

30  who resides in each of the territorial jurisdictions of the

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

                                  82

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

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

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

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

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

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

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

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

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

10  shall be appointed for a 4-year term;

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

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

13  each who resides in each of the territorial jurisdictions of

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

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

16  the Governor to the commission expires. The Governor shall

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

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

19  1, 1999, and members who reside in the even-numbered district

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

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

22  4-year term; and

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

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

25  each who resides in the territorial jurisdictions of the

26  district courts of appeal, selected and appointed by a

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

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

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

30  the other members of the commission shall appoint members who

31  reside in the odd-numbered district court of appeal

                                  83

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

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

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

  4  1, 1999. Thereafter, each member shall be appointed for a

  5  4-year term.

  6

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

  8  original appointing authority for the unexpired balance of the

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

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

11  statewide nominating commission. The meetings and

12  determinations of the nominating commission as to the judges

13  of compensation claims shall be open to the public.

14         (c)  Each judge of compensation claims shall be

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

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

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

18  nominating commission shall review the judge's conduct and

19  determine whether the judge's performance is satisfactory. In

20  determining whether a judge's performance is satisfactory, the

21  commission shall consider the extent to which the judge has

22  met the requirements of this chapter, including, but not

23  limited to, the requirements of ss. 440.192(2), 440.25(1),

24  440.25(4)(a)-(f), 440.34(2), and 440.442. If the commission

25  finds that judges generally are unable to meet a particular

26  statutory requirement for reasons beyond their control, the

27  commission shall request that the Legislature review that

28  particular requirement. If the judge's performance is deemed

29  satisfactory, the commission shall report its finding to the

30  Governor no later than 6 months prior to the expiration of the

31  judge's term of office. The Governor shall review the

                                  84

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  commission's report and may reappoint the judge for an

  2  additional 4-year term. If the Governor does not reappoint the

  3  judge, the Governor shall inform the commission. The judge

  4  shall remain in office until the Governor has appointed a

  5  successor judge in accordance with paragraphs (a) and (b). If

  6  a vacancy occurs during a judge's unexpired term, the

  7  statewide nominating commission does not find the judge's

  8  performance is satisfactory, or the Governor does not

  9  reappoint the judge, the Governor shall appoint a successor

10  judge for a term of 4 years in accordance with paragraph (b).

11         (d)  The Governor may appoint any attorney who has 5

12  years of experience in the practice of law in this state to

13  serve as a Deputy Chief Judge or a judge of compensation

14  claims on a temporary basis in the absence or disqualification

15  of any full-time judge of compensation claims. However, an

16  attorney so appointed by the Governor may not serve for a

17  period exceeding 60 successive days.

18         (e)  The director of the Division of Administrative

19  Hearings may receive or initiate complaints, conduct

20  investigations, and dismiss complaints against the Deputy

21  Chief Judge and the judges of compensation claims. The

22  director may recommend to the Governor the removal of the

23  Deputy Chief Judge or a judge of compensation claims or

24  recommend the discipline of a judge whose conduct during his

25  or her term of office warrants such discipline. For purposes

26  of this section, the term "discipline" includes reprimand,

27  fine, and suspension with or without pay. At the conclusion of

28  each investigation, the director shall submit preliminary

29  findings of fact and recommendations to the judge of

30  compensation claims who is the subject of the complaint. The

31  judge of compensation claims has 20 days within which to

                                  85

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  respond to the tentative findings. The response and the

  2  director's rebuttal to the response must be included in the

  3  final report submitted to the Governor.

  4         (3)  The Chief Judge shall select from among the full

  5  time judges of the office two or more judges to rotate as

  6  docketing judges. Docketing judges shall review all claims for

  7  benefits for consistency with the requirements of this chapter

  8  and the rules of procedure, including, but not limited to,

  9  specificity requirements, and shall dismiss any claim that

10  fails to comport with such rules and requirements. The

11  docketing judge shall not dismiss any claim with prejudice

12  without offering the parties an opportunity to appear and

13  present argument. The Chief Judge may as he or she deems

14  appropriate expand the duties of the docketing judges to

15  include resolution without hearing of other types of

16  procedural and substantive matters, including resolution of

17  fee disputes.

18         (3)(4)  The Chief Judge shall have the discretion to

19  require mediation and to designate qualified persons to act as

20  mediators in any dispute pending before the judges of

21  compensation claims and the division. The Deputy Chief Judge

22  shall coordinate with the Director of the Division of Workers'

23  Compensation to establish a mandatory mediation program to

24  facilitate early and efficient resolution of disputes arising

25  under this chapter and to establish training and continuing

26  education for new and sitting judges.

27         (4)(5)  The Office of the Judges of Compensation Claims

28  shall promulgate rules to effect the purposes of this section.

29  Such rules shall include procedural rules applicable to

30  workers' compensation claim resolution and uniform criteria

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

                                  86

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  age of pending and disposed cases, timeliness of

  3  decisionmaking, extraordinary fee awards, and the data

  4  necessary for the judicial nominating commission to review the

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

  6  other performance indicators. On or before November 1, 2001,

  7  the Office of the Judges of Compensation Claims shall submit a

  8  draft of these rules to the Governor, the President of the

  9  Senate, and the Speaker of the House of Representatives. The

10  Legislature shall review the draft rules and may approve,

11  modify and approve, disapprove, or take no action on the

12  rules. If the Legislature approves the draft rules, or

13  modifies and approves the draft rules, the Office of the

14  Judges of Compensation Claims shall adopt the draft rules

15  pursuant to chapter 120. If the Legislature disapproves the

16  draft rules, the Legislature shall convey the reasons for its

17  disapproval to the Office of the Judges of Compensation Claims

18  for use in redrafting the rules. The workers' compensation

19  rules of procedure approved by the Supreme Court shall apply

20  until the rules promulgated by the Office of the Judges of

21  Compensation Claims pursuant to this section become effective.

22         (5)(6)  Not later than December 1 of each year, the

23  Office of the Judges of Compensation Claims and the Division

24  of Workers' Compensation shall jointly issue a written report

25  to the Governor, the House of Representatives, and the Senate,

26  The Florida Bar, and the statewide nominating commission

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

28  resolved in the prior fiscal year, summarizing the disposition

29  of mediation conferences, the number of mediation conferences

30  waived, the number of continuances granted, the number and

31  disposition of litigated cases, the amount of attorney's fees

                                  87

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  paid in each case, and the number of final orders not issued

  2  within 14 days after the final hearing applications and

  3  motions for mediation conferences and recommending changes or

  4  improvements to the dispute resolution elements of the

  5  Workers' Compensation Law and regulations. If the Deputy Chief

  6  Judge finds that judges generally are unable to meet a

  7  particular statutory requirement for reasons beyond their

  8  control, the Deputy Chief Judge shall submit such findings and

  9  any recommendations to the Legislature.

10         Section 23.  Effective July 1, 2001, section 627.914,

11  Florida Statutes, is amended to read:

12         627.914  Reports of information by workers'

13  compensation insurers required.--

14         (1)  The department shall promulgate rules and

15  statistical plans which shall thereafter be used by each

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

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

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

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

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

21  aid the department in determining whether Florida experience

22  for workers' compensation insurance is sufficient for

23  establishing rates.

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

25  workers' compensation insurance shall transmit the following

26  information to the department each year with its annual

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

28  with respect to reinsurance for nationwide experience and on a

29  direct basis for Florida experience:

30         (a)  Premiums written;

31         (b)  Premiums earned;

                                  88

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (c)  Dividends paid or credited to policyholders;

  2         (d)  Losses paid;

  3         (e)  Allocated loss adjustment expenses;

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

  5  losses paid;

  6         (g)  Unallocated loss adjustment expenses;

  7         (h)  The ratio of unallocated loss adjustment expenses

  8  to losses paid;

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

10  allocated loss adjustment expenses;

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

12  allocated loss adjustment expenses to premiums earned;

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

14  of each year;

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

16  31 of each year;

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

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

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

20  adjustment expenses and unallocated loss adjustment expenses,

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

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

23  year.

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

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

26  shall include the information for the preceding year ending

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

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

29  eight stages of development.

30         (2)(4)  Each insurer and self-insurance fund authorized

31  to write a policy of workers' compensation insurance shall

                                  89

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

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

  3  experience separately:

  4         (a)  Payrolls by classification.

  5         (b)  Manual premiums by classification.

  6         (c)  Standard premiums by classification.

  7         (d)  Losses by classification and injury type.

  8         (e)  Expenses.

  9

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

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

12  accordance with standard reporting procedures for insurers,

13  which procedures have received approval by the department, and

14  shall contain data for the most recent policy period

15  available.  A statistical or rating organization may be used

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

17  required by this section.  The statistical rating organization

18  shall report each data element in the aggregate only for

19  insurers and self-insurance funds required to report under

20  this section who elect to have the rating organization report

21  on their behalf. Such insurers shall be named in the report.

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

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

24  440.02 shall report only Florida data as prescribed in

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

26  Workers' Compensation of the Department of Labor and

27  Employment Security.

28         (a)  The Division of Workers' Compensation shall

29  publish the dates and forms necessary to enable self-insurers

30  to comply with this section.

31

                                  90

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




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

  2  the information collected under this section to the Department

  3  of Insurance in a manner prescribed by the department.

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

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

  6  the data required by this section and calculating experience

  7  ratings.

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

  9  information provided pursuant to subsection subsections (2)

10  and (4) in its annual report.

11         Section 24.  Workers' Compensation Appeals

12  Commission.--

13         (1)(a)  There is created under the Administration

14  Commission a Workers' Compensation Appeals Commission,

15  consisting of a presiding commissioner and four other

16  commissioners, all to be appointed by the Governor after

17  October 1, 2001, but before May 15, 2002, and all to serve

18  full time. The Governor shall select each commissioner from a

19  list of three commissioners nominated by the judges of each of

20  the five district courts of appeal. The seats on the Workers'

21  Compensation Appeals Commission shall be numbered from one

22  through five. Nominations for the commissioner of seat one

23  shall be made by all the judges of the First District Court of

24  Appeal. Nominations for the commissioner of seat two shall be

25  made by all the judges of the Second District Court of Appeal.

26  Nominations for the commissioner of seat three shall be made

27  by all the judges of the Third District Court of Appeal.

28  Nominations for the commissioner of seat four shall be made by

29  all the judges of the Fourth District Court of Appeal.

30  Nominations for the commissioner of seat five shall be made by

31  all the judges of the Fifth District Court of Appeal. The

                                  91

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1  commissioners shall elect a presiding commissioner from among

  2  their number by majority vote. Each commissioner must have the

  3  qualifications required by law for judges of the district

  4  courts of appeal. In addition, the commissioners must have

  5  substantial experience in the field of workers' compensation.

  6         (b)  Each commissioner shall be appointed for a term of

  7  4 years, but, during his or her term of office, may be removed

  8  by the Governor for cause.

  9         (c)  Each appeal from an order of a judge of

10  compensation claims must be considered by a commission panel

11  consisting of two commissioners and the presiding

12  commissioner.

13         (d)  Before the term of office of a commissioner

14  expires, the Statewide Nominating Commission shall review the

15  conduct of the commissioner. The Statewide Nominating

16  Commission shall furnish to the Governor, no later than 6

17  months before the expiration of the commissioner's term, a

18  report relating to retention. If the Statewide Nominating

19  Commission recommends retention, the Governor shall reappoint

20  the commissioner. However, if the Statewide Nominating

21  Commission does not recommend retention, the judges of the

22  respective district courts of appeal shall issue to the

23  Governor a report that includes a list of three candidates for

24  appointment as a commissioner. If a vacancy occurs during an

25  unexpired term of a commissioner on the Workers' Compensation

26  Appeals Commission, the judges of the respective district

27  courts of appeal must nominate at least three candidates in

28  accordance with the procedures set forth in this section.

29         (e)  The Workers' Compensation Appeals Commission is

30  subject to the Code of Judicial Conduct set forth in section

31  440.442, Florida Statutes.

                                  92

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (2)  The presiding commissioner, by order filed in the

  2  records of the commission and with the approval of the

  3  Governor, may appoint a currently commissioned judge of

  4  compensation claims as an associate commissioner to serve as a

  5  temporary commissioner. This appointment must be for such

  6  periods of time as not to cause an undue burden on the

  7  caseload in the judge's jurisdiction. An associate

  8  commissioner is to receive no additional pay for serving in

  9  that capacity other than reimbursement for expenses incurred

10  in the performance of the additional duties.

11         (3)  The total salaries and benefits of all

12  commissioners of the commission are to be paid from the trust

13  fund created under section 440.50, Florida Statutes.

14  Notwithstanding any other provision of law, the commissioners

15  shall be paid a salary equal to that paid under state law to

16  the judges of district courts of appeal.

17         (4)(a)  The commission is vested with all authority,

18  powers, duties, and responsibilities relating to review of

19  orders of judges of compensation claims in workers'

20  compensation proceedings under chapter 440, Florida Statutes.

21  The Workers' Compensation Appeals Commission shall review by

22  appeal final orders of the judges of compensation claims

23  entered pursuant to chapter 440, Florida Statutes. The First

24  District Court of Appeal retains jurisdiction over all

25  workers' compensation proceedings pending before it on October

26  1, 2001. The commission may hold sessions and conduct hearings

27  at any place within the state. A panel of three commissioners

28  shall consider each case, and the concurrence of two

29  commissioners is necessary for a decision.  Any commissioner

30  may request an en banc hearing for review of a final order of

31  a judge of compensation claims.

                                  93

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (b)  The Workers' Compensation Appeals Commission is

  2  placed, for administrative purposes, within the Administration

  3  Commission, but, in the performance of its powers and duties

  4  under chapter 440, Florida Statutes, the commission is not

  5  subject to control, supervision, or direction by the

  6  Administration Commission and is not an agency for purposes of

  7  chapter 120, Florida Statutes.

  8         (c)  The Department of Labor and Employment Security

  9  shall provide to the commission the property, personnel, and

10  appropriations related to the commission's specified

11  authority, powers, duties, and responsibilities.

12         (5)  The commission shall make such expenditures,

13  including expenditures for personnel services and rent at the

14  seat of the government and elsewhere, for law books, reference

15  materials, periodicals, furniture, equipment, and supplies,

16  and for printing and binding, as are necessary in exercising

17  its authority and powers and carrying out its duties and

18  responsibilities. Expenditures of the commission shall be

19  allowed and paid from the trust fund created under section

20  440.50, Florida Statutes, upon the presentation of itemized

21  vouchers therefor approved by the presiding commissioner.

22         (6)  The commission, in its discretion, may charge for

23  publications, subscriptions, and copies of records and

24  documents. These fees must be deposited in the trust fund

25  established under section 440.50, Florida Statutes.

26         (7)(a)  The presiding commissioner shall exercise

27  administrative supervision over the Workers' Compensation

28  Appeals Commission and over the judges and other officers of

29  such courts.

30         (b)  The presiding commissioner of the Workers'

31  Compensation Appeals Commission shall:

                                  94

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         1.  Assign commissioners to hear appeals from final

  2  orders of judges of compensation claims.

  3         2.  Hire and assign clerks and staff.

  4         3.  Regulate use of courtrooms.

  5         4.  Supervise dockets and calendars.

  6         5.  Do everything necessary to promote the prompt and

  7  efficient administration of justice in the courts over which

  8  he or she presides.

  9         (c)  The presiding commissioner may appoint an

10  executive assistant to perform such duties as the presiding

11  commissioner directs him or her to perform. The commission may

12  employ research assistants or law clerks to assist the

13  commissioners in performing their duties under this section.

14         (8)(a)  The commission shall maintain and keep open

15  during reasonable business hours a clerk's office, to be

16  situated in the Capitol or another suitable building in Leon

17  County, for the transaction of its business. All books,

18  papers, records, and files, and the seal of the commission,

19  must be kept at this office. The commission shall furnish and

20  equip the office.

21         (b)  The Workers' Compensation Appeals Commission shall

22  appoint a clerk who shall hold office at the pleasure of the

23  commission. Before entering upon the discharge of his or her

24  duties, the clerk must give bond in the sum of $5,000 payable

25  to the Governor, to be approved by a majority of the members

26  of the commission conditioned upon the faithful discharge of

27  the duties of his or her office, which bond must be filed in

28  the office of the Secretary of State.

29         (c)  The clerk shall be paid an annual salary pursuant

30  to chapter 25, Florida Statutes.

31

                                  95

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (d)  The clerk may employ such deputies and clerical

  2  assistants as are necessary. Their number and compensation

  3  must be approved by the commission and paid from the annual

  4  appropriation for the Workers' Compensation Appeals Commission

  5  from the Workers' Compensation Administration Trust Fund.

  6         (e)  The clerk, upon the filing of a certified copy of

  7  a notice of appeal or petition, shall charge and collect a

  8  filing fee in the amount of $250 for each case docketed, and

  9  shall charge and collect for copying, certifying, or

10  furnishing opinions, records, papers, or other instruments,

11  and for other services, the same service charges as those

12  provided in section 28.24, Florida Statutes. The state or any

13  state agency, when appearing as appellant or petitioner, is

14  exempt from the filing fee required under this paragraph.

15         (f)  The clerk of the Workers' Compensation Appeals

16  Commission shall prepare each month, in duplicate, a statement

17  of all fees collected and shall remit one copy of the

18  statement, together with all fees collected by her or him, to

19  the Comptroller, who shall deposit the fees in the Workers'

20  Compensation Administration Trust Fund.

21         (9)  The commission shall have a seal for the

22  authentication of its orders, awards, and proceedings, upon

23  which are inscribed the words "State of Florida Workers'

24  Compensation Appeals Commission--Seal," and it must be

25  judicially noticed.

26         (10)  The commission is expressly authorized to destroy

27  obsolete records of the commission.

28         (11)  Workers' Compensation Appeals Commission

29  commissioners shall be reimbursed for travel expenses as

30  provided in section 112.061, Florida Statutes.

31

                                  96

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






    Florida Senate - 2001                                  SB 2266
    1-892-01




  1         (12)  The practice and procedure before the commission

  2  and the judges of compensation claims shall be governed by

  3  rules adopted by the commission except to the extent that such

  4  rules conflict with chapter 440, Florida Statutes.

  5         Section 25.  Section 440.4416, Florida Statutes, is

  6  repealed.

  7         Section 26.  Except as otherwise expressly provided in

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

  9

10            *****************************************

11                          SENATE SUMMARY

12    Revises provisions relating to workers' compensation.
      Makes managed care arrangements optional rather than
13    mandatory. Repeals the Workers' Compensation Oversight
      Board. Creates the Workers' Compensation Appeals
14    Commission. (See bill for details.)

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  97

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