Senate Bill sb2304c1

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    Florida Senate - 2002                           CS for SB 2304

    By the Committee on Banking and Insurance; and Senator Latvala





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  1                      A bill to be entitled

  2         An act relating to workers' compensation;

  3         amending s. 440.02, F.S.; redefining the terms

  4         "employee" and "independent contractor";

  5         prohibiting exemptions from coverage for

  6         commercial construction job sites; defining the

  7         terms "commercial building" and "residential

  8         building"; amending s. 440.05, F.S.; requiring

  9         employers to maintain business records

10         specified by rules of the Division of Workers'

11         Compensation, relative to exemptions from

12         coverage; revising requirements for election of

13         exemptions for coverage; amending s. 440.10,

14         F.S.; providing penalties for employers who

15         fail to secure compensation; amending s.

16         440.103, F.S.; specifying requirements for

17         certificates of insurance that must be shown to

18         receive a building permit; amending s. 440.107,

19         F.S.; requiring and authorizing the division to

20         issue stop-work orders and to impose certain

21         penalties against employers who fail to secure

22         compensation; requiring the division to notify

23         the Department of Business and Professional

24         Regulation; amending s. 440.191, F.S.; revising

25         duties of the Employee Assistance and Ombudsman

26         Office; removing a requirement that an employee

27         exhaust certain dispute-resolution procedures

28         before filing a petition requesting benefits;

29         amending s. 440.25, F.S.; revising procedures

30         for mediation and hearings; extending the time

31         for ordering and holding mediation conferences;

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  1         providing requirements for granting a

  2         continuance; providing for mediation conducted

  3         by mediators other than from the Office of the

  4         Judges of Compensation Claims; requiring that

  5         the parties complete pretrial stipulations

  6         before concluding mediation; extending the time

  7         for holding final hearings; providing for

  8         waiver of any benefit not raised at the final

  9         hearing; providing for an expedited

10         determination of pay; requiring that certain

11         claims be resolved through an expedited

12         process; providing for dismissal for lack of

13         prosecution; limiting the payment of interest

14         and the attachment of attorney's fees; amending

15         s. 440.271, F.S.; requiring appellate mediation

16         and providing procedures therefor; amending s.

17         440.381, F.S.; requiring that the application

18         for workers' compensation coverage contain a

19         sworn statement by the agent; providing a

20         penalty for carriers that fail to comply with

21         audit requirements; revising requirements for

22         audits; amending s. 440.40, F.S.; requiring

23         employers to post a notice related to the

24         anti-fraud reward program; amending s. 440.45,

25         F.S., relating to the Office of the Judges of

26         Compensation Claims; clarifying the

27         responsibilities of the director of the

28         Division of Administrative Hearings as agency

29         head of the Office of the Judges of

30         Compensation Claims; amending ss. 489.114 and

31         489.510, F.S.; revising provisions governing

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  1         the verification by the division of coverage of

  2         persons engaged in the business of contracting;

  3         specifying an administrative fine for

  4         contractors who are in noncompliance with

  5         chapter 440, F.S., to be paid to the Department

  6         of Business and Professional Regulation;

  7         amending s. 626.9892, F.S.; revising the

  8         criteria for the anti-fraud program; requiring

  9         the Department of Insurance to conduct a study

10         related to workers' compensation for persons

11         engaged in the construction industry; providing

12         effective dates.

13  

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

15  

16         Section 1.  Paragraphs (b), (c), and (d) of subsection

17  (14) of section 440.02, Florida Statutes, are amended, and

18  subsections (40) and (41) are added to that section, to read:

19         440.02  Definitions.--When used in this chapter, unless

20  the context clearly requires otherwise, the following terms

21  shall have the following meanings:

22         (14)

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

24  of a corporation and who performs services for remuneration

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

26  services are continuous.

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

28  from this chapter by filing written notice of the election

29  with the division as provided in s. 440.05.

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

31  engaged in the construction industry, no more than three

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

  2  written notice of the election with the division as provided

  3  in s. 440.05. However, a corporate officer of a corporation

  4  actively engaged in the construction industry may not elect to

  5  be exempt, and any exemption obtained by such an officer is

  6  not applicable, with respect to any commercial construction

  7  job site estimated to be valued at $250,000 or greater.

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

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

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

11  

12  Services are presumed to have been rendered to the corporation

13  if the officer is compensated by other than dividends upon

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

15         (c)1.  "Employee" includes a sole proprietor or a

16  partner who devotes full time to the proprietorship or

17  partnership and, except as provided in this paragraph, elects

18  to be included in the definition of employee by filing notice

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

20  actively engaged in the construction industry are considered

21  employees unless they elect to be excluded from the definition

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

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

24  partners in a partnership that is actively engaged in the

25  construction industry may elect to be excluded. A sole

26  proprietor or partner who is actively engaged in the

27  construction industry and who elects to be exempt from this

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

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

30  purposes of this chapter, an independent contractor is an

31  

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  1  employee unless he or she meets all of the conditions set

  2  forth in subparagraph (d)1.

  3         2.  Notwithstanding the provisions of subparagraph 1.,

  4  the term "employee" includes a sole proprietor or partner

  5  actively engaged in the construction industry with respect to

  6  any commercial construction job site estimated to be valued at

  7  $250,000 or greater. Any such employee may not elect to be

  8  exempt, and any exemption obtained is not applicable, with

  9  respect to work performed at such a commercial job site.

10         (d)  "Employee" does not include:

11         1.  An independent contractor, if:

12         a.  The independent contractor maintains a separate

13  business with his or her own work facility, truck, equipment,

14  materials, or similar accommodations;

15         b.  The independent contractor holds or has applied for

16  a federal employer identification number, unless the

17  independent contractor is a sole proprietor who is not

18  required to obtain a federal employer identification number

19  under state or federal requirements;

20         c.  The independent contractor performs or agrees to

21  perform specific services or work for specific amounts of

22  money and controls the means of performing the services or

23  work;

24         d.  The independent contractor incurs the principal

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

26  performs or agrees to perform;

27         e.  The independent contractor is responsible for the

28  satisfactory completion of work or services that he or she

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

30  for a failure to complete the work or services;

31  

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  1         f.  The independent contractor receives compensation

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

  3  per-job or competitive-bid basis and not on any other basis;

  4         g.  The independent contractor may realize a profit or

  5  suffer a loss in connection with performing work or services;

  6         h.  The independent contractor has continuing or

  7  recurring business liabilities or obligations; and

  8         i.  The success or failure of the independent

  9  contractor's business depends on the relationship of business

10  receipts to expenditures.

11  

12  However, the determination as to whether an individual

13  included in the Standard Industrial Classification Manual of

14  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

15  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,

16  2448, or 2449, or a newspaper delivery person, is an

17  independent contractor is governed not by the criteria in this

18  paragraph but by common-law principles, giving due

19  consideration to the business activity of the individual.

20  Notwithstanding the provisions of this paragraph or any other

21  provision of this chapter, with respect to any commercial

22  construction job site estimated to be valued at $250,000 or

23  greater, a person who is actively engaged in the construction

24  industry is not an independent contractor and is either an

25  employer or an employee who may not be exempt from the

26  coverage requirements of this chapter.

27         2.  A real estate salesperson or agent, if that person

28  agrees, in writing, to perform for remuneration solely by way

29  of commission.

30         3.  Bands, orchestras, and musical and theatrical

31  performers, including disk jockeys, performing in licensed

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

  2  evidencing an independent contractor relationship is entered

  3  into before the commencement of such entertainment.

  4         4.  An owner-operator of a motor vehicle who transports

  5  property under a written contract with a motor carrier which

  6  evidences a relationship by which the owner-operator assumes

  7  the responsibility of an employer for the performance of the

  8  contract, if the owner-operator is required to furnish the

  9  necessary motor vehicle equipment and all costs incidental to

10  the performance of the contract, including, but not limited

11  to, fuel, taxes, licenses, repairs, and hired help; and the

12  owner-operator is paid a commission for transportation service

13  and is not paid by the hour or on some other time-measured

14  basis.

15         5.  A person whose employment is both casual and not in

16  the course of the trade, business, profession, or occupation

17  of the employer.

18         6.  A volunteer, except a volunteer worker for the

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

20  A person who does not receive monetary remuneration for

21  services is presumed to be a volunteer unless there is

22  substantial evidence that a valuable consideration was

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

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

25         a.  Persons who serve in private nonprofit agencies and

26  who receive no compensation other than expenses in an amount

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

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

29  if such agency does not have salaried employees who receive

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

31  compensation other than expenses in an amount less than or

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  1  equivalent to the customary mileage and per diem paid to

  2  salaried workers in the community as determined by the

  3  division; and

  4         b.  Volunteers participating in federal programs

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

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

  7  exempt from this chapter.

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

  9  actively engages in the construction industry, and a partner

10  in a partnership that is actively engaged in the construction

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

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

13  employee for any reason until the notice of revocation of

14  election filed pursuant to s. 440.05 is effective.

15         9.  An exercise rider who does not work for a single

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

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

18  into prior to the commencement of such activity which

19  evidences that an employee/employer relationship does not

20  exist.

21         10.  A taxicab, limousine, or other passenger

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

23  a written agreement with a company which provides any

24  dispatch, marketing, insurance, communications, or other

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

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

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

28  revenues.

29         11.  A person who performs services as a sports

30  official for an entity sponsoring an interscholastic sports

31  event or for a public entity or private, nonprofit

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  1  organization that sponsors an amateur sports event.  For

  2  purposes of this subparagraph, such a person is an independent

  3  contractor. For purposes of this subparagraph, the term

  4  "sports official" means any person who is a neutral

  5  participant in a sports event, including, but not limited to,

  6  umpires, referees, judges, linespersons, scorekeepers, or

  7  timekeepers. This subparagraph does not apply to any person

  8  employed by a district school board who serves as a sports

  9  official as required by the employing school board or who

10  serves as a sports official as part of his or her

11  responsibilities during normal school hours.

12         (40)  "Commercial building" means any building or

13  structure intended for commercial or industrial use, or any

14  building or structure intended for multifamily use of more

15  than four dwelling units, as well as any accessory use

16  structures constructed in conjunction with the principle

17  structure. The term, "commercial building," does not include

18  the conversion of any existing residential building to a

19  commercial building.

20         (41)  "Residential building" means any building or

21  structure intended for residential use containing four or

22  fewer dwelling units and any structures intended as an

23  accessory use to the residential structure.

24         Section 2.  Subsections (10), (11), (12), and (13) are

25  added to section 440.05, Florida Statutes, to read:

26         440.05  Election of exemption; revocation of election;

27  notice; certification.--

28         (10)  Each employer conducting business in this state

29  shall maintain business records as specified by the division

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

31  corporation with exempt officers and any partnership with

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  1  exempt partners must maintain written statements of those

  2  exempted persons affirmatively acknowledging each such

  3  individual's exempt status.

  4         (11)  Any sole proprietor or partner claiming an

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

  6  her federal income tax records for each of the immediately

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

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

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

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

11  Form 1040 and its accompanying Schedule C;

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

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

14  Form 1040 and its accompanying Schedule E.

15  

16  A sole proprietor or partner shall produce, upon request by

17  the division, a copy of those documents together with a

18  statement by the sole proprietor or partner that the tax

19  records provided are true and accurate copies of what the sole

20  proprietor or partner has filed with the federal Internal

21  Revenue Service. The statement must be signed under oath by

22  the sole proprietor or partner and must be notarized. The

23  division shall issue a stop-work order under s. 440.107(5) to

24  any sole proprietor or partner who fails or refuses to produce

25  a copy of the tax records and affidavit required under this

26  paragraph to the division within 3 business days after the

27  request is made.

28         (12)  For those sole proprietors or partners that have

29  not been in business long enough to provide the information

30  required of an established business, the division shall

31  require such sole proprietor or partner to provide copies of

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  1  the most recently filed Federal Income Tax Form 1040. The

  2  division shall establish by rule such other criteria to show

  3  that the sole proprietor or partner intends to engage in a

  4  legitimate enterprise within the construction industry and is

  5  not otherwise attempting to evade the requirements of this

  6  section. The division shall establish by rule the form and

  7  format of financial information required to be submitted by

  8  such employers.

  9         (13)  Any corporate officer claiming an exemption under

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

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

12  officer. If the person who claims an exemption as a corporate

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

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

15  request by the division, a notarized affidavit stating that

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

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

18  corporate officer became or will become effective. The

19  statement must be signed under oath by both the officer and

20  the president or chief operating officer of the corporation

21  and must be notarized. The division shall issue a stop-work

22  order under s. 440.107(1) to any corporation who employs a

23  person who claims to be exempt as a corporate officer but who

24  fails or refuses to produce the documents required under this

25  subsection to the division within 3 business days after the

26  request is made.

27         Section 3.  Subsection (1) of section 440.10, Florida

28  Statutes, is amended to read:

29         440.10  Liability for compensation.--

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

31  this chapter, including any brought within the chapter by

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

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

  3  physician, surgeon, or pharmacist providing services under the

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

  5  440.13, 440.15, and 440.16. Any contractor or subcontractor

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

  7  shall secure and maintain compensation for his or her

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

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

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

11  all of the employees of such contractor and subcontractor or

12  subcontractors engaged on such contract work shall be deemed

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

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

15  payment of compensation to all such employees, except to

16  employees of a subcontractor who has secured such payment.

17         (c)  A contractor may require a subcontractor to

18  provide evidence of workers' compensation insurance or a copy

19  of his or her certificate of election. A subcontractor

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

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

22  certificate of election to the contractor.

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

24  of compensation to the employees of a subcontractor who has

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

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

27  recover from the subcontractor all benefits paid or payable

28  plus interest unless the contractor and subcontractor have

29  agreed in writing that the contractor will provide coverage.

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

31  for the payment of compensation to the employee of a

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  1  subcontractor who is actively engaged in the construction

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

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

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

  5  or corporation all benefits paid or payable plus interest,

  6  unless the contractor and the subcontractor have agreed in

  7  writing that the contractor will provide coverage.

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

  9  compensation to the employees of another subcontractor on such

10  contract work and is not protected by the

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

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

13  of another subcontractor.

14         (f)  If an employer willfully fails to secure

15  compensation as required by this chapter, the division may

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

17  each employee of that employer who is classified by the

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

19  division to not meet the criteria for an independent

20  contractor that are set forth in s. 440.02. The division shall

21  adopt rules to administer the provisions of this paragraph.

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

23  conclusively presumed to be an independent contractor if:

24         1.  The independent contractor provides the general

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

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

27         2.  The independent contractor provides the general

28  contractor with a valid certificate of workers' compensation

29  insurance or a valid certificate of exemption issued by the

30  division.

31  

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

  2  elects exemption from this chapter by filing a certificate of

  3  election under s. 440.05 may not recover benefits or

  4  compensation under this chapter. An independent contractor who

  5  provides the general contractor with both an affidavit stating

  6  that he or she meets the requirements of s. 440.02(14)(d) and

  7  a certificate of exemption is not an employee under s.

  8  440.02(14)(c) and may not recover benefits under this chapter.

  9  For purposes of determining the appropriate premium for

10  workers' compensation coverage, carriers may not consider any

11  person who meets the requirements of this paragraph to be an

12  employee.

13         Section 4.  Section 440.13, Florida Statutes, is

14  amended to read:

15         440.103  Building permits; identification of minimum

16  premium policy.--Except as otherwise provided in this chapter,

17  every employer shall, as a condition to receiving a building

18  permit, show proof that it has secured compensation for its

19  employees under this chapter as provided in ss. 440.10 and

20  440.38. Such proof of compensation must be evidenced by a

21  certificate of insurance coverage issued by the carrier, a

22  valid exemption certificate approved by the division, or a

23  copy of the employer's authority to self-insure and shall be

24  presented each time the employer applies for a building

25  permit. Each certificate of insurance shall indicate the sites

26  for which coverage applies. As provided in s. 627.413(5), each

27  certificate of insurance coverage must show, on its face,

28  whether or not coverage is secured under the minimum premium

29  provisions of rules adopted by rating organizations licensed

30  by the Department of Insurance. The words "minimum premium

31  

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  1  policy" or equivalent language shall be typed, printed,

  2  stamped, or legibly handwritten.

  3         Section 5.  Subsections (5) and (7) of section 440.107,

  4  Florida Statutes, are amended, and subsection (12) is added to

  5  that section to read:

  6         440.107  Division powers to enforce employer compliance

  7  with coverage requirements.--

  8         (5)  Whenever the division determines that an employer

  9  who is required to secure the payment to his or her employees

10  of the compensation provided for by this chapter has failed to

11  do so, such failure shall be deemed an immediate serious

12  danger to public health, safety, or welfare sufficient to

13  justify service by the division of a stop-work order on the

14  employer, requiring the cessation of all business operations

15  at the place of employment or job site. If the division makes

16  such a determination, the division shall issue a stop-work

17  order within 72 hours. The order shall take effect upon the

18  date of service upon the employer, unless the employer

19  provides evidence satisfactory to the division of having

20  secured any necessary insurance or self-insurance and pays a

21  civil penalty to the division, to be deposited by the division

22  into the Workers' Compensation Administration Trust Fund, in

23  the amount of $100 per day for each day the employer was not

24  in compliance with this chapter.

25         (7)  In addition to any penalty, stop-work order, or

26  injunction, the division shall may assess against any

27  employer, who has failed to secure the payment of compensation

28  as required by this chapter, a penalty in the following amount

29  of:

30         (a)  An amount equal to at least the amount that the

31  employer would have paid or up to twice the amount the

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  1  employer would have paid during periods it illegally failed to

  2  secure payment of compensation in the preceding 3-year period

  3  based on the employer's payroll during the preceding 3-year

  4  period; or

  5         (b)  One thousand dollars, whichever is greater.

  6  

  7  Any penalty assessed under this subsection is due within 30

  8  days after the date on which the employer is notified, except

  9  that, if the division has posted a stop-work order or obtained

10  injunctive relief against the employer, payment is due, in

11  addition to those conditions set forth in this section, as a

12  condition to relief from a stop-work order or an injunction.

13  Interest shall accrue on amounts not paid when due at the rate

14  of 1 percent per month. The division shall adopt rules to

15  administer this section.

16         (12)  If the division finds that an employer who is

17  certified or registered under part I or part II of chapter 489

18  and who is required to secure payment of the compensation

19  provided for by this chapter to his or her employees has

20  failed to do so, the division shall immediately notify the

21  Department of Business and Professional Regulation.

22         Section 6.  Section 440.191, Florida Statutes, is

23  amended to read:

24         440.191  Employee Assistance and Ombudsman Office.--

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

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

27  construed to permit injured employees and employers or the

28  employer's carrier to resolve disagreements without undue

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

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

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

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  1  carriers, service providers, health care providers, attorneys,

  2  employers, managed care arrangements, and employees, to

  3  attempt to resolve disagreements in good faith and to

  4  cooperate with the division's efforts to resolve disagreements

  5  between the parties. The division may by rule prescribe

  6  definitions that are necessary for the effective

  7  administration of this section.

  8         (b)  An Employee Assistance and Ombudsman Office is

  9  created within the Division of Workers' Compensation to inform

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

11  care providers, and managed care arrangements in fulfilling

12  their responsibilities under this chapter. The division may by

13  rule specify forms and procedures for administering requests

14  for assistance provided by this section.

15         (c)  The Employee Assistance and Ombudsman Office,

16  Division of Workers' Compensation, shall be a resource

17  available to all employees who participate in the workers'

18  compensation system and shall take all steps necessary to

19  educate and disseminate information to employees and

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

21  Employee Assistance and Ombudsman Office may initiate contact

22  with the injured employee or employee's representative to

23  discuss rights and responsibilities of the employee under this

24  chapter and the services available through the Employee

25  Assistance and Ombudsman Office.

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

27  any benefit under this chapter unless the employee has

28  exhausted the procedures for informal dispute resolution under

29  this section.

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

31  fails to provide benefits to which the employee believes she

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

  2  request assistance in resolving the dispute. The office may

  3  review a petition for benefits filed under s. 440.192 shall

  4  investigate the dispute and may shall attempt to facilitate an

  5  agreement between the employee and the employer or carrier.

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

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

  8  documents or other information that it may require in

  9  connection with its efforts under this section.

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

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

12  disputes quickly and in the most efficient manner possible.

13  Settlement agreements resulting from such conferences must be

14  submitted to the Office of the Judges of Compensation Claims

15  for approval.

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

17  may assign an ombudsman to assist the employee in resolving

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

19  after the employee contacts the office, The ombudsman may

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

21  drafting a petition for benefits and explain the procedures

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

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

24  Assistance and Ombudsman Office may not represent employees

25  before the judges of compensation claims. An employer or

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

27  employee for services rendered or costs incurred in connection

28  with this section, unless expressly authorized elsewhere in

29  this chapter.

30         Section 7.  Subsections (1), (3), and (4) of section

31  440.25, Florida Statutes, are amended to read:

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  1         440.25  Procedures for mediation and hearings.--

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

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

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

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

  6  interested parties by order that a mediation conference

  7  concerning such petition will be held unless the parties have

  8  notified the Office of the Judges of Compensation Claims that

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

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

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

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

13  interested parties by mail. The claimant or the adjuster of

14  the employer or carrier may, at the mediator's discretion,

15  attend the mediation conference by telephone or, if agreed to

16  by the parties, other electronic means. A continuance may be

17  granted if the requesting party demonstrates to the judge of

18  compensation claims that the reason for requesting the

19  continuance arises from circumstances beyond the party's

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

21  date of the rescheduled mediation conference. A mediation

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

23  attorney's fees.

24         (3)(a)  Such 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

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  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.

16         1.  Unless the parties conduct a private mediation

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

18  mediator selected by the Director of the Division of

19  Administrative Hearings from among mediators shall select a

20  mediator. The mediator shall be employed on a full-time basis

21  by the Office of the Judges of Compensation Claims. A mediator

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

23  must complete a mediation training program approved by the

24  Director of the Division of Administrative Hearings. Adjunct

25  mediators may be employed by the Office of the Judges of

26  Compensation Claims on an as-needed basis and shall be

27  selected from a list prepared by the Director of the Division

28  of Administrative Hearings. An adjunct mediator must be

29  independent of all parties participating in the mediation

30  conference. An adjunct mediator must be a member of The

31  Florida Bar for at least 5 years and must complete a mediation

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  1  training program approved by the Director of the Division of

  2  Administrative Hearings.  An adjunct mediator shall have

  3  access to the office, equipment, and supplies of the judge of

  4  compensation claims in each district.

  5         2.  With respect to any mediation occurring on or after

  6  January 1, 2003, if the parties agree or if mediators are not

  7  available under subparagraph 1. to conduct the required

  8  mediation within the period specified in this section, the

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

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

11  mediation conference shall be conducted by a mediator

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

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

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

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

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

17  conference shall be binding and neither party shall have a

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

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

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

21  witnesses, and evidence presented at the conference shall not

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

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

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

25  compensation claims. The employer may be represented by an

26  attorney at the mediation conference if the employee is also

27  represented by an attorney at the mediation conference.

28         (c)  The parties shall complete the pretrial

29  stipulations before the conclusion of the mediation conference

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

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

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  1  unresolved. The judge of compensation claims may impose

  2  sanctions against a party or both parties for failing to

  3  complete the pretrial stipulations before the conclusion of

  4  the mediation conference.

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

  6  submission of pretrial stipulations at the mediation

  7  conference, on the 10th day following commencement of

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

  9  the judge of compensation claims shall order hold a pretrial

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

11  ordered by the judge of compensation claims. The judge of

12  compensation claims shall give the interested parties at least

13  7 days' advance notice of the pretrial hearing by mail. At the

14  pretrial hearing, the judge of compensation claims shall,

15  subject to paragraph (b), set a date for the final hearing

16  that allows the parties at least 60 30 days to conduct

17  discovery unless the parties consent to an earlier hearing

18  date.

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

20  within 90 45 days after the mediation conference is held

21  pretrial hearing. Continuances may be granted only if the

22  requesting party demonstrates to the judge of compensation

23  claims that the reason for requesting the continuance arises

24  from circumstances beyond the party's control. The written

25  consent of the claimant must be obtained before any request

26  from a claimant's attorney is granted for an additional

27  continuance after the initial continuance has been granted.

28  Any order granting a continuance must set forth the date and

29  time of the rescheduled hearing. A continuance may be granted

30  only if the requesting party demonstrates to the judge of

31  compensation claims that the reason for requesting the

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  1  continuance arises from circumstances beyond the control of

  2  the parties. The judge of compensation claims shall report any

  3  grant of two or more continuances to the Deputy Chief Judge.

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

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

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

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

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

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

10  unless otherwise agreed to between the parties and authorized

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

12  injury occurred. If the injury occurred outside without the

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

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

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

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

17  in the discretion of the Deputy Chief Judge, be the most

18  convenient for a hearing. The final hearing shall be conducted

19  by a judge of compensation claims, who shall, within 30 days

20  after final hearing or closure of the hearing record, unless

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

22  merits of the disputed issues. The judge of compensation

23  claims may enter an abbreviated final order in cases in which

24  compensability is not disputed. Either party may request

25  separate findings of fact and conclusions of law. At the final

26  such hearing, the claimant and employer may each present

27  evidence with in respect to the claims presented by the

28  petition for benefits of such claim and may be represented by

29  any attorney authorized in writing for such purpose. When

30  there is a conflict in the medical evidence submitted at the

31  hearing, the provisions of s. 440.13 shall apply. The report

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  1  or testimony of the expert medical advisor shall be made a

  2  part of the record of the proceeding and shall be given the

  3  same consideration by the judge of compensation claims as is

  4  accorded other medical evidence submitted in the proceeding;

  5  and all costs incurred in connection with such examination and

  6  testimony may be assessed as costs in the proceeding, subject

  7  to the provisions of s. 440.13. No judge of compensation

  8  claims may make a finding of a degree of permanent impairment

  9  that is greater than the greatest permanent impairment rating

10  given the claimant by any examining or treating physician,

11  except upon stipulation of the parties. Any benefit due but

12  not raised at the final hearing which was ripe, due, or owing

13  at the time of the final hearing is waived.

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

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

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

17  the order need not include any other reason or justification

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

19  Office of the Judges of Compensation Claims at Tallahassee. A

20  copy of such compensation order shall be sent by mail to the

21  parties and attorneys of record at the last known address of

22  each, with the date of mailing noted thereon.

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

24  submit a special report to the Deputy Chief Judge in each

25  contested workers' compensation case in which the case is not

26  determined within 30 days of final hearing or closure of the

27  hearing record. Said form shall be provided by the director of

28  the Division of Administrative Hearings and shall contain the

29  names of the judge of compensation claims and of the attorneys

30  involved and a brief explanation by the judge of compensation

31  

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  1  claims as to the reason for such a delay in issuing a final

  2  order.

  3         (g)  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)  To expedite dispute resolution and to enhance the

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

13  Deputy Chief Judge shall make provision by rule or order for

14  the resolution of appropriate motions by judges of

15  compensation claims without oral hearing upon submission of

16  brief written statements in support and opposition, and for

17  expedited discovery and docketing. Unless the judge of

18  compensation claims, for good cause, orders a hearing under

19  paragraph (i), each claim in a petition relating to the

20  determination of pay under s. 440.14 shall be resolved under

21  this paragraph without oral hearing.

22         (i)  To further expedite dispute resolution and to

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

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

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

26  compelling evidence to the contrary, be presumed to be

27  appropriate for expedited resolution under this paragraph; and

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

29  written agreement of both parties and application by either

30  party, may similarly be resolved under this paragraph. A claim

31  in a petition or $5,000 or less for medical benefits only or a

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  1  petition for reimbursement for mileage for medical purposes

  2  shall, in the absence of compelling evidence to the contrary,

  3  be resolved through the expedited dispute-resolution process

  4  provided in this paragraph. For purposes of expedited

  5  resolution pursuant to this paragraph, the Deputy Chief Judge

  6  shall make provision by rule or order for expedited and

  7  limited discovery and expedited docketing in such cases. At

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

  9  file with the judge of compensation claims a pretrial outline

10  of all issues, defenses, and witnesses on a form adopted by

11  the Deputy Chief Judge; provided, in no event shall such

12  hearing be held without 15 days' written notice to all

13  parties. No pretrial hearing shall be held. The judge of

14  compensation claims shall limit all argument and presentation

15  of evidence at the hearing to a maximum of 30 minutes, and

16  such hearings shall not exceed 30 minutes in length. Neither

17  party shall be required to be represented by counsel. The

18  employer or carrier may be represented by an adjuster or other

19  qualified representative. The employer or carrier and any

20  witness may appear at such hearing by telephone. The rules of

21  evidence shall be liberally construed in favor of allowing

22  introduction of evidence.

23         (j)  A judge of compensation claims may, upon the

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

25  petition for lack of prosecution if a petition, response,

26  motion, order, request for hearing, or notice of deposition

27  has not been filed during the previous 12 months unless good

28  cause is shown. A dismissal for lack of prosecution is without

29  prejudice and does not require a hearing.

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

31  interest on unpaid medical bills and the amount of such bills

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  1  may not be used to calculate the amount of interest awarded.

  2  Regardless of the date benefits were initially requested,

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

  4  days after the date the carrier or self-insured employer

  5  receives the petition.

  6         Section 8.  Effective July 1, 2002, section 440.271,

  7  Florida Statutes, is amended to read:

  8         440.271  Appeal of order of judge of compensation

  9  claims.--

10         (1)  Review of any order of a judge of compensation

11  claims entered pursuant to this chapter shall be by appeal to

12  the district court of appeal, First District.  Appeals shall

13  be filed in accordance with rules of procedure prescribed by

14  the Supreme Court for review of such orders.  The division

15  shall be given notice of any proceedings pertaining to s.

16  440.25, regarding indigency, or s. 440.49, regarding the

17  Special Disability Trust Fund, and shall have the right to

18  intervene in any proceedings.

19         (2)  The parties shall hold a mediation conference at

20  the carrier's expense within 60 days after the filing of the

21  notice of appeal of a final order from a judge of compensation

22  claims.  The mediation conference shall be conducted by a

23  mediator with experience in appellate mediation or who is

24  certified under s. 44.106.  The appellate proceeding and the

25  preparation of the record shall be stayed until the completion

26  of the mediation conference required by this section.

27         (3)  The parties and their counsel may, at the

28  mediator's discretion, attend the mediation conference by

29  telephone or, if agreed to by the parties, other electronic

30  means.  A continuance may be granted only if the requesting

31  party demonstrates to the judge that the reason for the

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  1  continuance arises from circumstances beyond the party's

  2  control.  Any continuance must set forth the date of the

  3  rescheduled mediation conference, and must be rescheduled to

  4  be completed within 90 days after the filing of the notice of

  5  appeal.  Mediation conferences under this section may not be

  6  used solely for the purpose of mediating attorney's fees.

  7         (4)  Such appellate mediation conferences shall be

  8  conducted informally and shall not require the use of formal

  9  rules of evidence or procedure.  Any information from the

10  files, reports, case summaries, mediator's notes, or

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

12  mediation conference under this section obtained by any person

13  performing mediation duties is privileged and confidential and

14  may not be disclosed without the written consent of all

15  parties to the conference.  Any research or evaluation effort

16  directed at assessing the mediation program, activities, or

17  performance must protect the confidentiality of such

18  information.  Each party to a mediation conference has a

19  privilege during and after the conference to refuse to

20  disclose and to prevent another from disclosing communications

21  made during the conference whether or not the contested issues

22  are successfully resolved.  This subsection shall not be

23  construed to prevent or inhibit the discovery or admissability

24  of any information that is otherwise subject to discovery or

25  that is admissible under applicable law or rules of procedure,

26  except that any conduct or statements made during a mediation

27  conference or in negotiations concerning the conference are

28  inadmissible in any proceeding under this chapter.

29         (5)  If the issues which are the subject of the appeal

30  are not resolved by the parties, the appellant shall notify

31  

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  1  the judge of compensation claims that the appeal needs to

  2  proceed forward and the record on appeal needs to be prepared.

  3         Section 9.  Subsections (2), (3), and (6) of section

  4  440.381, Florida Statutes, are amended to read:

  5         440.381  Application for coverage; reporting payroll;

  6  payroll audit procedures; penalties.--

  7         (2)  The application must contain a statement that the

  8  filing of an application containing false, misleading, or

  9  incomplete information with the purpose of avoiding or

10  reducing the amount of premiums for workers' compensation

11  coverage is a felony of the third degree, punishable as

12  provided in s. 775.082, s. 775.083, or s. 775.084. The

13  application must contain a sworn statement by the employer

14  attesting to the accuracy of the information submitted and

15  acknowledging the provisions of former s. 440.37(4). The

16  application must contain a sworn statement by the agent

17  attesting that the agent explained to the employer or officer

18  the classification codes that are used for premium

19  calculations.

20         (3)  The Department of Insurance and the Department of

21  Labor and Employment Security shall establish by rule minimum

22  requirements for audits of payroll and classifications in

23  order to ensure that the appropriate premium is charged for

24  workers' compensation coverage. The rules shall ensure that

25  audits performed by both carriers and employers are adequate

26  to provide that all sources of payments to employees,

27  subcontractors, and independent contractors have been reviewed

28  and that the accuracy of classification of employees has been

29  verified. The rules shall provide that employers in all

30  classes other than the construction class be audited not less

31  frequently than biennially and may provide for more frequent

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  1  audits of employers in specified classifications based on

  2  factors such as amount of premium, type of business, loss

  3  ratios, or other relevant factors. In no event shall employers

  4  in the construction class, generating more than the amount of

  5  premium required to be experience rated, be audited less than

  6  annually. The annual audits required for construction classes

  7  shall consist of physical onsite audits. Failure by the

  8  carrier to comply with these auditing requirements shall be a

  9  violation of the Insurance Code, as provided in s. 624.4211,

10  and shall result in a fine of at least $1,000 for each

11  instance of noncompliance. Payroll verification audit rules

12  must include, but need not be limited to, the use of state and

13  federal reports of employee income, payroll and other

14  accounting records, certificates of insurance maintained by

15  subcontractors, and duties of employees. At the completion of

16  an audit, the employer or officer of the corporation and the

17  auditor must print and sign their names on the audit document

18  and attach proof of identification to the audit document.

19         (6)  If an employer intentionally understates or

20  conceals payroll, or misrepresents or conceals employee duties

21  so as to avoid proper classification for premium calculations,

22  or misrepresents or conceals information pertinent to the

23  computation and application of an experience rating

24  modification factor, the employer, or the employer's agent or

25  attorney, shall pay to the insurance carrier a penalty of 10

26  times the amount of the difference in premium paid and the

27  amount the employer should have paid and reasonable attorney's

28  fees. The penalty may be enforced in the circuit courts of

29  this state.

30         Section 10.  Section 440.40, Florida Statutes, is

31  amended to read:

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  1         440.40  Compensation notice.--Every employer who has

  2  secured compensation under the provisions of this chapter

  3  shall keep posted in a conspicuous place or places in and

  4  about her or his place or places of business typewritten or

  5  printed notices, in accordance with a form prescribed by the

  6  division, the following:

  7         (1)  A notice stating that such employer has secured

  8  the payment of compensation in accordance with the provisions

  9  of this chapter. Such notices shall contain the name and

10  address of the carrier, if any, with whom the employer has

11  secured payment of compensation and the date of the expiration

12  of the policy. The division may by rule prescribe the form of

13  the notices and require carriers to provide the notices to

14  policyholders.

15         (2)  A notice stating:  "Anti-Fraud Reward

16  Program.--Rewards of up to $25,000 may be paid to persons

17  providing information to the Department of Insurance leading

18  to the arrest and conviction of persons committing insurance

19  fraud, including employers who illegally fail to obtain

20  workers' compensation coverage. Persons may report suspected

21  fraud to the department at...(Phone No.).... A person is not

22  subject to civil liability for furnishing such information, if

23  such person acts without malice, fraud, or bad faith."

24         Section 11.  Subsection (1) of section 440.45, Florida

25  Statutes, is amended to read:

26         440.45  Office of the Judges of Compensation Claims.--

27         (1)(a)  There is created the Office of the Judges of

28  Compensation Claims within the Department of Management

29  Services. The Office of the Judges of Compensation Claims

30  shall be headed by the Deputy Chief Judge of Compensation

31  Claims. The Deputy Chief Judge shall report to the director of

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  1  the Division of Administrative Hearings. The Deputy Chief

  2  Judge shall be appointed by the Governor for a term of 4 years

  3  from a list of three names submitted by the statewide

  4  nominating commission created under subsection (2). The Deputy

  5  Chief Judge must demonstrate prior administrative experience

  6  and possess the same qualifications for appointment as a judge

  7  of compensation claims, and the procedure for reappointment of

  8  the Deputy Chief Judge will be the same as for reappointment

  9  of a judge of compensation claims. The office shall be a

10  separate budget entity and the director of the Division of

11  Administrative Hearings shall be its agency head for all

12  purposes, including, but not limited to, rulemaking pursuant

13  to subsection (4) and establishing agency policies and

14  procedures.  The Department of Management Services shall

15  provide administrative support and service to the office to

16  the extent requested by the director of the Division of

17  Administrative Hearings but shall not direct, supervise, or

18  control the Office of the Judges of Compensation Claims in any

19  manner, including, but not limited to, personnel, purchasing,

20  budgetary matters, or property transactions. The operating

21  budget of the Office of the Judges of Compensation Claims

22  shall be paid out of the Workers' Compensation Administration

23  Trust Fund established in s. 440.50.

24         (b)  The current term of the Chief Judge of

25  Compensation Claims shall expire October 1, 2001. Effective

26  October 1, 2001, the position of Deputy Chief Judge of

27  Compensation Claims is created.

28         Section 12.  Section 489.114, Florida Statutes, is

29  amended to read:

30         489.114  Evidence of workers' compensation

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

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  1  business organization, or qualifying agent engaged in the

  2  business of contracting in this state and certified or

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

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

  5  certificate of authority of the contractor, provide to the

  6  Construction Industry Licensing Board, as provided by board

  7  rule, evidence of workers' compensation coverage pursuant to

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

  9  Compensation of the Department of Labor and Employment

10  Security receives notice of the cancellation of a policy of

11  workers' compensation insurance insuring a person or entity

12  governed by this section, the Division of Workers'

13  Compensation shall certify and identify all persons or

14  entities by certification or registration license number to

15  the department after verification is made by the Division of

16  Workers' Compensation that such cancellation has occurred or

17  that persons or entities governed by this section are no

18  longer covered by workers' compensation insurance.  Such

19  certification and verification by the Division of Workers'

20  Compensation may shall result solely from records furnished to

21  the Division of Workers' Compensation by the persons or

22  entities governed by this section or an investigation

23  completed by the Division of Workers' Compensation.  The

24  department shall notify the persons or entities governed by

25  this section who have been determined to be in noncompliance

26  with chapter 440, and the persons or entities notified shall

27  provide certification of compliance with chapter 440 to the

28  department and pay an administrative fine in the amount of

29  $500 as provided by rule.  The failure to maintain workers'

30  compensation coverage as required by law shall be grounds for

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

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  1  of a certificate, registration, or certificate of authority of

  2  the contractor under the provisions of s. 489.129.

  3         Section 13.  Section 489.510, Florida Statutes, is

  4  amended to read:

  5         489.510  Evidence of workers' compensation

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

  7  business organization, or qualifying agent engaged in the

  8  business of contracting in this state and certified or

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

10  the issuance or renewal of a certificate or registration of

11  the contractor, provide to the Electrical Contractors'

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

13  workers' compensation coverage pursuant to chapter 440.  In

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

15  Department of Labor and Employment Security receives notice of

16  the cancellation of a policy of workers' compensation

17  insurance insuring a person or entity governed by this

18  section, the Division of Workers' Compensation shall certify

19  and identify all persons or entities by certification or

20  registration license number to the department after

21  verification is made by the Division of Workers' Compensation

22  that such cancellation has occurred or that persons or

23  entities governed by this section are no longer covered by

24  workers' compensation insurance.  Such certification and

25  verification by the Division of Workers' Compensation may

26  shall result solely from records furnished to the Division of

27  Workers' Compensation by the persons or entities governed by

28  this section or an investigation completed by the Division of

29  Workers' Compensation. The department shall notify the persons

30  or entities governed by this section who have been determined

31  to be in noncompliance with chapter 440, and the persons or

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  1  entities notified shall provide certification of compliance

  2  with chapter 440 to the department and pay an administrative

  3  fine in the amount of $500 as provided by rule.  The failure

  4  to maintain workers' compensation coverage as required by law

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

  6  issuance or renewal of a certificate or registration of the

  7  contractor under the provisions of s. 489.533.

  8         Section 14.  Subsection (2) of section 626.9892,

  9  Florida Statutes, is amended to read:

10         626.9892  Anti-Fraud Reward Program; reporting of

11  insurance fraud.--

12         (2)  The department may pay rewards of up to $25,000 to

13  persons providing information leading to the arrest and

14  conviction of persons committing complex or organized crimes

15  investigated by the Division of Insurance Fraud arising from

16  violations of s. 440.105, s. 624.15, s. 626.9541, s. 626.989,

17  or s. 817.234.

18         Section 15.  The Department of Insurance, in

19  consultation with the board of governors of the joint

20  underwriting association authorized under s. 627.311, Florida

21  Statutes, shall conduct a study to evaluate the availability

22  and affordability of workers' compensation insurance coverage

23  for persons engaged primarily in the construction industry.

24  The scope of the study shall include a review of workers'

25  compensation insurance currently provided or required in other

26  states and possible alternative coverages. The department

27  shall submit a report with recommendations to the President of

28  the Senate and the Speaker of the House of Representatives on

29  or before February 1, 2003.

30         Section 16.  Except as otherwise expressly provided in

31  this act, this act shall take effect October 1, 2002.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 2304

  3                                 

  4  The committee substitute provides the following changes:

  5  1.   Establishes mandatory appellate mediation. Parties would
         be required to hold a mediation conference, at the
  6       carrier's expense, within 60 days after the filing of the
         notice of appeal of a final order of a judge of
  7       compensation claims.

  8  2.   Revises the exemption criteria for businesses primarily
         engaged in the construction industry by eliminating
  9       exemptions for persons engaged in commercial
         construction. For any commercial construction job-site
10       estimated to be valued at $250,000 or greater, a person
         who is actively engaged in the construction industry
11       would not be considered an independent contractor and
         would be either an employer or employee and would not be
12       exempt from the coverage requirements of ch. 440,F.S.
         Exemptions would continue to be available to persons
13       primarily engaged in residential construction.

14  3.   Provides greater enforcement tools for the Division of
         Workers' Compensation. The division would be required to
15       issue a stop-work order within 72 hours of making a
         determination that a person failed to secure compensation
16       coverage, as required by law. The division would be
         required, rather than allowed, to assess a penalty in the
17       amount of the premium evaded or up to twice the amount of
         the premium evaded, or $1,000, whichever is greater,
18       against employers that failed to secure compensation, as
         required by ch. 440, F.S.
19  
    4.   Revises reward eligibility requirements for the
20       Anti-Fraud Reward Program of the Department of Insurance
         in order to encourage greater participation in the
21       program. The department would be authorized to provide a
         reward of up $25,000 to persons providing information to
22       the department which leads to the arrest and conviction
         of persons committing insurance fraud. An employer would
23       be required to post a notice informing employees of the
         Anti-Fraud Reward Program, for information leading to the
24       arrest and conviction of persons committing insurance
         fraud, including employers who illegally fail to obtain
25       workers' compensation coverage.

26  5.   Revises disclosures on the insurance application form and
         revises auditing provisions for carriers. If an insurance
27       carrier fails to comply with current auditing
         requirements, including mandatory annual audits for
28       construction employers above a certain premium, the
         carrier would be considered in violation of the Insurance
29       Code and subject to a mandatory fine of at least $1,000
         for each instance of noncompliance. The committee
30       substitute also requires that an application for coverage
         contain a sworn statement from the agent attesting that
31       the agent explained to the employer or officer the
         classification codes that are used.
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  1  6.   Eliminates provisions relating to attorney's fees,
         medical fees, benefits, exclusive remedy, and the
  2       Workers' Compensation Joint Underwriting Association.

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