HB 0163 2003
1	A bill to be entitled
2	An act relating to workers' compensation; amending s.
3	440.02, F.S.; revising, providing, and deleting
4	definitions; amending s. 440.05, F.S.; revising
5	requirements relating to submitting notice of election of
6	exemption and maintenance of records; amending s. 440.06,
7	F.S.; revising provisions relating to failure to secure
8	compensation; amending s. 440.077, F.S.; providing that a
9	corporate officer electing to be exempt may not receive
10	benefits under ch. 440, F.S.; amending s. 440.09, F.S.;
11	requiring that certain compensable injuries be established
12	by medical evidence; clarifying compensation for
13	subsequent injuries; amending s. 440.10, F.S.; revising
14	provisions relating to contractors and subcontractors with
15	regard to liability for compensation; requiring
16	subcontractors to provide evidence of workers'
17	compensation coverage or proof of exemption to a
18	contractor; deleting provisions relating to independent
19	contractors; amending s. 440.11, F.S.; clarifying employer
20	immunity from liability for injury or death with regard to
21	intent; amending s. 440.13, F.S.; revising definition of
22	the term "medically necessary" as "medical necessity";
23	requiring the Agency for Health Care Administration to
24	ensure establishment of practice parameters for physician
25	medical services; specifying circumstances under which
26	employers or carriers are responsible for attendant care;
27	providing additional criteria for calculation of the value
28	of nonprofessional attendant care; revising procedures for
29	provision of medical services and supplies; revising
30	hearing procedures; revising provisions that provide for
31	reimbursement allowances; expanding membership of the
32	panel that determines schedules of reimbursement
33	allowances to five members; requiring revision of
34	specified reimbursement schedules; prohibiting specified
35	health care providers from charging certain fees;
36	providing timetable for revision of schedules of maximum
37	reimbursement allowances; revising certain reimbursement
38	allowances; revising procedure for determination of fee-
39	for-service, pharmaceutical, and hospital per diem
40	schedules; amending s. 440.134, F.S.; revising a
41	definition; amending s. 440.14, F.S.; revising provisions
42	relating to calculation of average weekly wage for injured
43	employees; amending s. 440.15, F.S.; providing additional
44	limitations on compensation for permanent total disability
45	and temporary total disability; revising payment schedule
46	for impairment benefits; specifying criteria for payment
47	of impairment benefits for psychiatric impairment;
48	amending s. 440.151, F.S.; revising provisions relating to
49	compensation for certain occupational diseases; revising
50	the definition of "occupational disease"; amending s.
51	440.192, F.S.; revising procedures for resolving benefit
52	disputes; providing conditions for claims to be
53	adjudicated by a judge of compensation claims; correcting
54	a cross reference, to conform; amending s. 440.20, F.S.;
55	revising requirements for settlement of contested claims;
56	clarifying responsibility of employer and carrier with
57	regard to child support information; amending s. 440.25,
58	F.S.; revising procedures for mediation and hearings;
59	specifying conditions for granting of continuance;
60	amending s. 440.271, F.S.; revising provisions for review
61	of order; amending s. 440.29, F.S.; revising provisions
62	relating to evidentiary procedures; creating s. 440.315,
63	F.S.; providing for attorney's fees; amending s. 440.39,
64	F.S.; revising provisions relating to third-party
65	liability; providing for application with regard to
66	preservation of evidence; creating s. 440.4415, F.S.;
67	creating the Workers' Compensation Appeals Commission;
68	providing for membership, authority, powers, duties, and
69	responsibilities; providing that the commission shall
70	review final orders of the judges of compensation claims,
71	under specified circumstances; providing procedures for
72	review; providing for the location, property, personnel,
73	and appropriations of the commission; authorizing
74	destruction of certain records; providing for travel
75	expenses; providing rulemaking authority; amending s.
76	440.45, F.S.; deleting provision for establishment of
77	certain training by the Deputy Chief Judge; correcting
78	references; amending s. 440.51, F.S., relating to expenses
79	of administration; revising limitation of certain
80	expenses; deleting requirement for legislative
81	appropriation in order to transfer certain funds to the
82	workers' compensation joint underwriting plan; repealing
83	s. 440.34, F.S., relating to attorney's fees and costs;
84	providing for severability; providing an effective date.
85
86	Be It Enacted by the Legislature of the State of Florida:
87
88	Section 1. Subsections (1), (8), (15), and (16), paragraph
89	(c) of subsection (17), and subsections (38), (41), and (42) of
90	section 440.02, Florida Statutes, are amended to read:
91	440.02 Definitions.--When used in this chapter, unless the
92	context clearly requires otherwise, the following terms shall
93	have the following meanings:
94	(1) "Accident" means only an unexpected or unusual event
95	or result that happens suddenly. A mental or nervous injury due
96	to stress, fright, or excitement only, or disability or death
97	due to the accidental acceleration or aggravation of a venereal
98	disease or of a disease due to the habitual use of alcohol or
99	controlled substances or narcotic drugs, or a disease that
100	manifests itself in the fear of or dislike for an individual
101	because of the individual's race, color, religion, sex, national
102	origin, age, or handicap is not an injury by accident arising
103	out of the employment. If a preexisting disease or anomaly is
104	accelerated or aggravated by an accident arising out of and in
105	the course of employment, only acceleration of death or
106	acceleration or aggravation of the preexisting condition
107	reasonably attributable to the accident is compensable, with
108	respect to death or permanent impairment.An injury or disease
109	caused by exposure to a toxic substance, including, but not
110	limited to, fungus and mold, is not an injury by accident
111	arising out of the employment unless there is clear and
112	convincing evidence establishing that exposure to the specific
113	substance involved, at the levels to which the employee was
114	exposed, can cause the injury or disease sustained by the
115	employee.
116	(8) "Construction industry" meansany business that
117	carries outfor-profit activities involvingthe carrying out of
118	any building, clearing, filling, excavation, or substantial
119	improvement in the size or use of any structure or the
120	appearance of any land.When appropriate to the context,
121	"construction" refers to the act of construction or the result
122	of construction.However, "construction"doesshallnot mean a
123	homeowner’slandowner'sact of construction or the result of a
124	construction upon his or her own premises, provided such
125	premises are not intended to be sold,orresold, or leased by
126	the owner within 1 year after the commencement of the
127	construction. The division may, by rule, establish those
128	standard industrial classification codes and their definitions
129	which meet the criteria of the term “construction industry” as
130	set forth in this section.
131	(15)(a) "Employee" means any personwho receives
132	remuneration from an employer for the performance of any work or
133	service, whether byengaged in any employment under any
134	appointment or contractforofhire or apprenticeship, express
135	or implied, oral or written, whether lawfully or unlawfully
136	employed, and includes, but is not limited to, aliens and
137	minors.
138	(b) "Employee" includes any person who is an officer of a
139	corporation and who performs services for remuneration for such
140	corporation within this state, whether or not such services are
141	continuous.
142	1. Any officer of a corporation may elect to be exempt
143	from this chapter by filing written notice of the election with
144	the department as provided in s. 440.05.
145	2. As to officers of a corporation who areactively
146	engaged in the construction industry, no more than three
147	officersof a corporation or of any group of affiliated
148	corporationsmay elect to be exempt from this chapter by filing
149	written notice of the election with the department as provided
150	in s. 440.05.Officers must be shareholders, each owning at
151	least 10 percent of the stock of such corporation, in order to
152	elect exemptions under this chapter.However, any exemption
153	obtained by a corporate officer of a corporation actively
154	engaged in the construction industry is not applicable with
155	respect to any commercial building project estimated to be
156	valued at $250,000 or greater.
157	3. An officer of a corporation who elects to be exempt
158	from this chapter by filing a written notice of the election
159	with the department as provided in s. 440.05 is not an employee.
160
161	Services are presumed to have been rendered to the corporation
162	if the officer is compensated by other than dividends upon
163	shares of stock of the corporation which the officer owns.
164	(c)1."Employee" includes:
165	1.A sole proprietor or a partner who devotes full time to
166	the proprietorship or partnership and, except as provided in
167	this paragraph,elects to be included in the definition of
168	employee by filing notice thereof as provided in s. 440.05.
169	2. Any person who is being paid by a construction
170	contractor, except as otherwise permitted by this chapter, for
171	work performed by or as a subcontractor or employee of a
172	subcontractor.
173	3. An independent contractor working or performing
174	services in the construction industry.Partners or sole
175	proprietors actively engaged in the construction industry are
176	considered employees unless they elect to be excluded from the
177	definition of employee by filing written notice of the election
178	with the department as provided in s. 440.05. However, no more
179	than three partners in a partnership that is actively engaged in
180	the construction industry may elect to be excluded.
181	4.A sole proprietoror partnerwho isactivelyengaged in
182	the construction industry anda partner or partnership that is
183	engaged in the construction industry.who elects to be exempt
184	from this chapter by filing a written notice of the election
185	with the department as provided in s. 440.05 is not an employee.
186	For purposes of this chapter, an independent contractor is an
187	employee unless he or she meets all of the conditions set forth
188	in subparagraph (d)1.
189	2. Notwithstanding the provisions of subparagraph 1., the
190	term "employee" includes a sole proprietor or partner actively
191	engaged in the construction industry with respect to any
192	commercial building project estimated to be valued at $250,000
193	or greater. Any exemption obtained is not applicable, with
194	respect to work performed at such a commercial building project.
195	(d) "Employee" does not include:
196	1. An independent contractorthat is not engaged in the
197	construction industry., if:
198	a. The independent contractor maintains a separate
199	business with his or her own work facility, truck, equipment,
200	materials, or similar accommodations;
201	b. The independent contractor holds or has applied for a
202	federal employer identification number, unless the independent
203	contractor is a sole proprietor who is not required to obtain a
204	federal employer identification number under state or federal
205	requirements;
206	c. The independent contractor performs or agrees to
207	perform specific services or work for specific amounts of money
208	and controls the means of performing the services or work;
209	d. The independent contractor incurs the principal
210	expenses related to the service or work that he or she performs
211	or agrees to perform;
212	e. The independent contractor is responsible for the
213	satisfactory completion of work or services that he or she
214	performs or agrees to perform and is or could be held liable for
215	a failure to complete the work or services;
216	f. The independent contractor receives compensation for
217	work or services performed for a commission or on a per-job or
218	competitive-bid basis and not on any other basis;
219	g. The independent contractor may realize a profit or
220	suffer a loss in connection with performing work or services;
221	h. The independent contractor has continuing or recurring
222	business liabilities or obligations; and
223	i. The success or failure of the independent contractor's
224	business depends on the relationship of business receipts to
225	expenditures.
226
227	However, the determination as to whether an individual included
228	in the Standard Industrial Classification Manual of 1987,
229	Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762, 0781, 0782,
230	0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436, 2448, or 2449,
231	or a newspaper delivery person, is an independent contractor is
232	governed not by the criteria in this paragraph but by common-law
233	principles, giving due consideration to the business activity of
234	the individual. Notwithstanding the provisions of this paragraph
235	or any other provision of this chapter, with respect to any
236	commercial building project estimated to be valued at $250,000
237	or greater, a person who is actively engaged in the construction
238	industry is not an independent contractor and is either an
239	employer or an employee who may not be exempt from the coverage
240	requirements of this chapter.
241	2. A real estate salesperson or agent, if that person
242	agrees, in writing, to perform for remuneration solely by way of
243	commission.
244	3. Bands, orchestras, and musical and theatrical
245	performers, including disk jockeys, performing in licensed
246	premises as defined in chapter 562, if a written contract
247	evidencing an independent contractor relationship is entered
248	into before the commencement of such entertainment.
249	4. An owner-operator of a motor vehicle who transports
250	property under a written contract with a motor carrier which
251	evidences a relationship by which the owner-operator assumes the
252	responsibility of an employer for the performance of the
253	contract, if the owner-operator is required to furnish the
254	necessary motor vehicle equipment and all costs incidental to
255	the performance of the contract, including, but not limited to,
256	fuel, taxes, licenses, repairs, and hired help; and the owner-
257	operator is paid a commission for transportation service and is
258	not paid by the hour or on some other time-measured basis.
259	5. A person whose employment is both casual and not in the
260	course of the trade, business, profession, or occupation of the
261	employer.
262	6. A volunteer, except a volunteer worker for the state or
263	a county, municipality, or other governmental entity. A person
264	who does not receive monetary remuneration for services is
265	presumed to be a volunteer unless there is substantial evidence
266	that a valuable consideration was intended by both employer and
267	employee. For purposes of this chapter, the term "volunteer"
268	includes, but is not limited to:
269	a. Persons who serve in private nonprofit agencies and who
270	receive no compensation other than expenses in an amount less
271	than or equivalent to the standard mileage and per diem expenses
272	provided to salaried employees in the same agency or, if such
273	agency does not have salaried employees who receive mileage and
274	per diem, then such volunteers who receive no compensation other
275	than expenses in an amount less than or equivalent to the
276	customary mileage and per diem paid to salaried workers in the
277	community as determined by the department; and
278	b. Volunteers participating in federal programs
279	established under Pub. L. No. 93-113.
280	7.Unless otherwise prohibited by this chapter,any
281	officer of a corporation who elects to be exempt from this
282	chapter.
283	8.AnA sole proprietor orofficer of a corporationwho
284	actively engages in the construction industry, and a partner in
285	a partnershipthat isactivelyengaged in the construction
286	industry,who elects to be exempt from the provisions of this
287	chapter, as otherwise permitted in this chapter. Suchsole
288	proprietor,officer, or partneris not an employee for any
289	reason until the notice of revocation of election filed pursuant
290	to s. 440.05 is effective.
291	9. An exercise rider who does not work for a single horse
292	farm or breeder, and who is compensated for riding on a case-by-
293	case basis, provided a written contract is entered into prior to
294	the commencement of such activity which evidences that an
295	employee/employer relationship does not exist.
296	10. A taxicab, limousine, or other passenger vehicle-for-
297	hire driver who operates said vehicles pursuant to a written
298	agreement with a company which provides any dispatch, marketing,
299	insurance, communications, or other services under which the
300	driver and any fees or charges paid by the driver to the company
301	for such services are not conditioned upon, or expressed as a
302	proportion of, fare revenues.
303	11. A person who performs services as a sports official
304	for an entity sponsoring an interscholastic sports event or for
305	a public entity or private, nonprofit organization that sponsors
306	an amateur sports event. For purposes of this subparagraph, such
307	a person is an independent contractor. For purposes of this
308	subparagraph, the term "sports official" means any person who is
309	a neutral participant in a sports event, including, but not
310	limited to, umpires, referees, judges, linespersons,
311	scorekeepers, or timekeepers. This subparagraph does not apply
312	to any person employed by a district school board who serves as
313	a sports official as required by the employing school board or
314	who serves as a sports official as part of his or her
315	responsibilities during normal school hours.
316	(16)(a)"Employer" means the state and all political
317	subdivisions thereof, all public and quasi-public corporations
318	therein, every person carrying on any employment, and the legal
319	representative of a deceased person or the receiver or trustees
320	of any person. If the employer is a corporation, parties in
321	actual control of the corporation, including, but not limited
322	to, the president, officers who exercise broad corporate powers,
323	directors, and all shareholders who directly or indirectly own a
324	controlling interest in the corporation, are considered the
325	employer for the purposes of ss. 440.105 and 440.106.
326	(b) However, a landowner shall not be considered the
327	employer of a person hired by the landowner to carry out
328	construction on the landowner’s own premises if those premises
329	are not intended for immediate sale or resale.
330	(17)
331	(c) "Employment" does not include service performed by or
332	as:
333	1. Domestic servants in private homes.
334	2. Agricultural labor performed on a farm in the employ of
335	a bona fide farmer, or association of farmers, that employs 5 or
336	fewer regular employees and that employs fewer than 12 other
337	employees at one time for seasonal agricultural labor that is
338	completed in less than 30 days, provided such seasonal
339	employment does not exceed 45 days in the same calendar year.
340	The term "farm" includes stock, dairy, poultry, fruit, fur-
341	bearing animals, fish, and truck farms, ranches, nurseries, and
342	orchards. The term "agricultural labor" includes field foremen,
343	timekeepers, checkers, and other farm labor supervisory
344	personnel.
345	3. Professional athletes, such as professional boxers,
346	wrestlers, baseball, football, basketball, hockey, polo, tennis,
347	jai alai, and similar players, and motorsports teams competing
348	in a motor racing event as defined in s. 549.08.
349	4.Persons performinglabor under a sentence of a court to
350	perform community services as provided in s. 316.193.
351	5. State prisoners or county inmates, except those
352	performing services for private employers or those enumerated in
353	s. 948.03(8)(a).
354	(38) "Catastrophic injury" means a permanent impairment
355	constituted by:
356	(a) Spinal cord injury involving severe paralysis of an
357	arm, a leg, or the trunk;
358	(b) Amputation of an arm, a hand, a foot, or a leg
359	involving the effective loss of use of that appendage;
360	(c) Severe brain or closed-head injury as evidenced by:
361	1. Severe sensory or motor disturbances;
362	2. Severe communication disturbances;
363	3. Severe complex integrated disturbances of cerebral
364	function;
365	4. Severe episodic neurological disorders; or
366	5. Other severe brain and closed-head injury conditions at
367	least as severe in nature as any condition provided in
368	subparagraphs 1.-4.;
369	(d) Second-degree or third-degree burns of 25 percent or
370	more of the total body surface or third-degree burns of 5
371	percent or more to the face and hands;or
372	(e) Total or industrial blindness.; or
373	(f) Any other injury that would otherwise qualify under
374	this chapter of a nature and severity that would qualify an
375	employee to receive disability income benefits under Title II or
376	supplemental security income benefits under Title XVI of the
377	federal Social Security Act as the Social Security Act existed
378	on July 1, 1992, without regard to any time limitations provided
379	under that act.
380	(41) “Specificity” means information on the petition for
381	benefits sufficient to put the employer or carrier on notice of
382	the exact statutory classification and outstanding time period
383	of benefits being requested and includes a detailed explanation
384	of any benefits received that should be increased, decreased,
385	changed, or otherwise modified. If the petition is for medical
386	benefits, the information shall include specific details as to
387	why such benefits are being requested, why such benefits are
388	medically necessary, and why current treatment, if any, is not
389	sufficient.
390	(41) "Commercial building" means any building or structure
391	intended for commercial or industrial use, or any building or
392	structure intended for multifamily use of more than four
393	dwelling units, as well as any accessory use structures
394	constructed in conjunction with the principal structure. The
395	term, "commercial building," does not include the conversion of
396	any existing residential building to a commercial building.
397	(42) "Residential building" means any building or
398	structure intended for residential use containing four or fewer
399	dwelling units and any structures intended as an accessory use
400	to the residential structure.
401	Section 2. Subsections (3), (6), (10), and (13) of section
402	440.05, Florida Statutes, are amended to read:
403	440.05 Election of exemption; revocation of election;
404	notice; certification.--
405	(3) Eachsole proprietor, partner, orofficer of a
406	corporation who isactivelyengaged in the construction industry
407	and who elects an exemption from this chapter or who, after
408	electing such exemption, revokes that exemption, must mail a
409	written notice to such effect to the department on a form
410	prescribed by the department. The notice of election to be
411	exempt from the provisions of this chapter must be notarized and
412	under oath. The notice of election to be exempt which is
413	submitted to the department by thesole proprietor, partner, or
414	officer of a corporationwho is allowed to claim an exemption as
415	provided by this chaptermust list the name, federal tax
416	identification number, social security number, all certified or
417	registered licenses issued pursuant to chapter 489 held by the
418	person seeking the exemption, a copy of relevant documentation
419	as to employment status filed with the Internal Revenue Service
420	as specified by the department, a copy of the relevant
421	occupational license in the primary jurisdiction of the
422	business, and, for corporate officers and partners,the
423	registration number of the corporationor partnershipfiled with
424	the Division of Corporations of the Department of Statealong
425	with a copy of the stock certificate evidencing the required
426	ownership under this chapter. The notice of election to be
427	exempt must identify eachsole proprietorship, partnership, or
428	corporation that employs the person electing the exemption and
429	must list the social security number or federal tax
430	identification number of each such employer and the additional
431	documentation required by this section. In addition, the notice
432	of election to be exempt must provide that thesole proprietor,
433	partner, orofficer electing an exemption is not entitled to
434	benefits under this chapter, must provide that the election does
435	not exceed exemption limits for officersand partnerships
436	provided in s. 440.02, and must certify that any employees of
437	thecorporation whosesole proprietor, partner, orofficer
438	electselectingan exemption are covered by workers'
439	compensation insurance. Upon receipt of the notice of the
440	election to be exempt, receipt of all application fees, and a
441	determination by the department that the notice meets the
442	requirements of this subsection, the department shall issue a
443	certification of the election to thesole proprietor, partner,
444	orofficer, unless the department determines that the
445	information contained in the notice is invalid. The department
446	shall revoke a certificate of election to be exempt from
447	coverage upon a determination by the department that the person
448	does not meet the requirements for exemption or that the
449	information contained in the notice of election to be exempt is
450	invalid. The certificate of election must list thenamenamesof
451	thesole proprietorship, partnership, orcorporation listed in
452	the request for exemption. A new certificate of election must be
453	obtained each time the person is employed by a newsole
454	proprietorship, partnership,ordifferentcorporation that is
455	not listed on the certificate of election. A copy of the
456	certificate of election must be sent to each workers'
457	compensation carrier identified in the request for exemption.
458	Upon filing a notice of revocation of election,ana sole
459	proprietor, partner, orofficer who is a subcontractoror an
460	officer of a corporate subcontractormust notify her or his
461	contractor. Upon revocation of a certificate of election of
462	exemption by the department, the department shall notify the
463	workers' compensation carriers identified in the request for
464	exemption.
465	(6) A construction industry certificate of election to be
466	exempt which is issued in accordance with this section shall be
467	valid for 2 years after the effective date stated thereon. Both
468	the effective date and the expiration date must be listed on the
469	face of the certificate by the department. The construction
470	industry certificate must expire at midnight, 2 years from its
471	issue date, as noted on the face of the exemption certificate.
472	Any person who has received from the division a construction
473	industry certificate of election to be exempt which is in effect
474	on December 31, 1998, shall file a new notice of election to be
475	exempt by the last day in his or her birth month following
476	December 1, 1998. A construction industry certificate of
477	election to be exempt may be revoked before its expiration by
478	thesole proprietor, partner, orofficer for whom it was issued
479	or by the department for the reasons stated in this section. At
480	least 60 days prior to the expiration date of a construction
481	industry certificate of exemption issued after December 1, 1998,
482	the department shall send notice of the expiration date and an
483	application for renewal to the certificateholder at the address
484	on the certificate.
485	(10) Eachsole proprietor, partner, orofficer of a
486	corporation who is actively engaged in the construction industry
487	and who elects an exemption from this chapter shall maintain
488	business records as specified by the division by rule, which
489	rules must include the provision that any corporation with
490	exempt officersand any partnership activelyengaged in the
491	construction industrywith exempt partnersmust maintain written
492	statements of those exempted persons affirmatively acknowledging
493	each such individual's exempt status.
494	(13) Any corporate officerpermitted by this chapter to
495	claimclaimingan exemptionunder this sectionmust be listed on
496	the records of this state's Secretary of State, Division of
497	Corporations, as a corporate officer.If the person who claims
498	an exemption as a corporate officer is not so listed on the
499	records of the Secretary of State, the individual must provide
500	to the division, upon request by the division, a notarized
501	affidavit stating that the individual is a bona fide officer of
502	the corporation and stating the date his or her appointment or
503	election as a corporate officer became or will become effective.
504	The statement must be signed under oath by both the officer and
505	the president or chief operating officer of the corporation and
506	must be notarized.The division shall issue a stop-work order
507	under s. 440.107(1) to any corporation who employs a person who
508	claims to be exempt as a corporate officer but who fails or
509	refuses to produce the documents required under this subsection
510	to the division within 3 business days after the request is
511	made.
512	Section 3. Section 440.06, Florida Statutes, is amended to
513	read:
514	440.06 Failure to secure compensation; effect.--Every
515	employer who fails to secure the payment of compensation, as
516	provided in s. 440.10, by failing to meet the requirements of
517	under this chapter as provided ins. 440.38 may not, in any suit
518	brought against him or her by an employee subject to this
519	chapter to recover damages for injury or death, defend such a
520	suit on the grounds that the injury was caused by the negligence
521	of a fellow servant, that the employee assumed the risk of his
522	or her employment, or that the injury was due to the comparative
523	negligence of the employee.
524	Section 4. Section 440.077, Florida Statutes, is amended
525	to read:
526	440.077 When acorporatesole proprietor, partner, or
527	officer rejects chapter, effect.--AnA sole proprietor, partner,
528	orofficer of a corporation who ispermitted to elect an
529	exemption under this chapteractively engaged in the
530	construction industryand who elects to be exempt from the
531	provisions of this chapter may not recover benefits under this
532	chapter.
533	Section 5. Subsection (1) of section 440.09, Florida
534	Statutes, is amended to read:
535	440.09 Coverage.--
536	(1) The employer shall pay compensation or furnish
537	benefits required by this chapter if the employee suffers an
538	accidentalcompensableinjury or death arising out of work
539	performed in the course and the scope of employment. The injury,
540	its occupational cause, and any resulting manifestations or
541	disability shall be established to a reasonable degree of
542	medical certainty and by objective medical findings. Mental or
543	nervous injuries occurring as a manifestation of an injury
544	compensable under this section shall be demonstrated by clear
545	and convincing evidence.In cases involving occupational disease
546	or repetitive exposure, both causation and sufficient exposure
547	to support causation shall be proven by clear and convincing
548	evidence.
549	(a) This chapter does not require any compensation or
550	benefits for any subsequent injury the employee suffers as a
551	result of an original injury arising out of and in the course of
552	employment unless the original injury is the major contributing
553	cause of the subsequent injury.The work-related accident must
554	be more than 50-percent responsible for the injury and
555	subsequent disability or need for treatment in order for it to
556	be the major contributing cause.
557	(b) If an injury arising out of and in the course of
558	employment combines with a preexisting disease or condition to
559	cause or prolong disability or need for treatment, the employer
560	must pay compensation or benefits required by this chapter only
561	to the extent that the injury arising out of and in the course
562	of employment is and remainsmore than 50-percent responsible
563	for the injury and therefore remainsthe major contributing
564	cause of the disability or need for treatment.
565	(c) Death resulting from an operation by a surgeon
566	furnished by the employer for the cure of hernia as required in
567	s. 440.15(6) shall for the purpose of this chapter be considered
568	to be a death resulting from the accident causing the hernia.
569	(d) If an accident happens while the employee is employed
570	elsewhere than in this state, which would entitle the employee
571	or his or her dependents to compensation if it had happened in
572	this state, the employee or his or her dependents are entitled
573	to compensation if the contract of employment was made in this
574	state, or the employment was principally localized in this
575	state. However, if an employee receives compensation or damages
576	under the laws of any other state, the total compensation for
577	the injury may not be greater than is provided in this chapter.
578	Section 6. Subsection (1) of section 440.10, Florida
579	Statutes, is amended to read:
580	440.10 Liability for compensation.--
581	(1)(a) Every employer coming within the provisions of this
582	chapter, including any brought within the chapter by waiver of
583	exclusion or of exemption,shall be liable for, and shall
584	secure, the payment to his or her employees, or any physician,
585	surgeon, or pharmacist providing services under the provisions
586	of s. 440.13, of the compensation payable under ss. 440.13,
587	440.15, and 440.16. Any contractor or subcontractor who engages
588	in any public or private construction in the state shall secure
589	and maintain compensation for his or her employees under this
590	chapter as provided in s. 440.38.
591	(b) In case a contractor sublets any part or parts of his
592	or her contract work to a subcontractor or subcontractors, all
593	of the employees of such contractor and subcontractor or
594	subcontractors engaged on such contract work shall be deemed to
595	be employed in one and the same business or establishment; and
596	the contractor shall be liable for, and shall secure, the
597	payment of compensation to all such employees, except to
598	employees of a subcontractor who has secured such payment.
599	(c) A contractorshallmayrequire a subcontractor to
600	provide evidence of workers' compensation insuranceor a copy of
601	his or her certificate of election. A subcontractorthat is a
602	corporation and that has an officer who electselectingto be
603	exempt aspermitted under this chaptera sole proprietor,
604	partner, or officer of a corporationshall provide a copy of his
605	or her certificate ofexemptionelectionto the contractor.
606	(d)1. If a contractor becomes liable for the payment of
607	compensation to the employees of a subcontractor who has failed
608	to secure such payment in violation of s. 440.38, the contractor
609	or other third-party payor shall be entitled to recover from the
610	subcontractor all benefits paid or payable plus interest unless
611	the contractor and subcontractor have agreed in writing that the
612	contractor will provide coverage.
613	2. If a contractor or third-party payor becomes liable for
614	the payment of compensation to thecorporate officeremployeeof
615	a subcontractor who isactivelyengaged in the construction
616	industry and has elected to be exempt from the provisions of
617	this chapter, but whose election is invalid, the contractor or
618	third-party payor may recover from the claimant, partnership,or
619	corporation all benefits paid or payable plus interest, unless
620	the contractor and the subcontractor have agreed in writing that
621	the contractor will provide coverage.
622	(e) A subcontractor is not liable for the payment of
623	compensation to the employees of another subcontractor on such
624	contract work and is not protected by the exclusiveness-of-
625	liability provisions of s. 440.11 from action at law or in
626	admiralty on account of injury of such employee of another
627	subcontractor.
628	(f) If an employer fails to secure compensation as
629	required by this chapter, the department may assess against the
630	employer a penalty not to exceed $5,000 for each employee of
631	that employer who is classified by the employer as an
632	independent contractor but who is found by the department to not
633	meet the criteria for an independent contractor that are set
634	forth in s. 440.02. The division shall adopt rules to administer
635	the provisions of this paragraph.
636	(g) For purposes of this section, a person is conclusively
637	presumed to be an independent contractor if:
638	1. The independent contractor provides the general
639	contractor with an affidavit stating that he or she meets all
640	the requirements of s. 440.02; and
641	2. The independent contractor provides the general
642	contractor with a valid certificate of workers' compensation
643	insurance or a valid certificate of exemption issued by the
644	department.
645
646	AnA sole proprietor, partner, orofficer of a corporation who
647	elects exemption from this chapter by filing a certificate of
648	election under s. 440.05 may not recover benefits or
649	compensation under this chapter.An independent contractor who
650	provides the general contractor with both an affidavit stating
651	that he or she meets the requirements of s. 440.02 and a
652	certificate of exemption is not an employee under s. 440.02 and
653	may not recover benefits under this chapter.For purposes of
654	determining the appropriate premium for workers' compensation
655	coverage, carriers may not consider anyofficer of a corporation
656	personwhovalidlymeets the requirements of thissubsection
657	paragraphto be an employee.
658	Section 7. Subsection (1) of section 440.11, Florida
659	Statutes, is amended to read:
660	440.11 Exclusiveness of liability.--
661	(1)Except if an employer acts with the intent to
662	cause injury or death,the liability of an employer prescribed
663	in s. 440.10 shall be exclusive and in place of all other
664	liability, including any vicarious liability,of such employer
665	to any third-party tortfeasor and to the employee, the legal
666	representative thereof, husband or wife, parents, dependents,
667	next of kin, and anyone otherwise entitled to recover damages
668	from such employer at law or in admiralty on account of such
669	injury or death, except that if an employer fails to secure
670	payment of compensation, in accordance with s. 440.38as
671	required by this chapter, an injured employee, or the legal
672	representative thereof in case death results from the injury,
673	may elect to claim compensation under this chapter or to
674	maintain an action at law or in admiralty for damages on account
675	of such injury or death. In such action the defendant may not
676	plead as a defense that the injury was caused by negligence of a
677	fellow employee, that the employee assumed the risk of the
678	employment, or that the injury was due to the comparative
679	negligence of the employee. The same immunities from liability
680	enjoyed by an employer shall extend as well to each employee of
681	the employer when such employee is acting in furtherance of the
682	employer's business and the injured employee is entitled to
683	receive benefits under this chapter. Such fellow-employee
684	immunities shall not be applicable to an employee who acts, with
685	respect to a fellow employee, with willful and wanton disregard
686	or unprovoked physical aggression or with gross negligence when
687	such acts result in injury or death or such acts proximately
688	cause such injury or death, nor shall such immunities be
689	applicable to employees of the same employer when each is
690	operating in the furtherance of the employer's business but they
691	are assigned primarily to unrelated works within private or
692	public employment. The same immunity provisions enjoyed by an
693	employer shall also apply to anysole proprietor,partner,
694	corporate officer or director, supervisor, or other person who
695	in the course and scope of his or her duties acts in a
696	managerial or policymaking capacity and the conduct which caused
697	the alleged injury arose within the course and scope of said
698	managerial or policymaking duties and was not a violation of a
699	law, whether or not a violation was charged, for which the
700	maximum penalty which may be imposed does not exceed 60 days'
701	imprisonment as set forth in s. 775.082. The immunity from
702	liability provided in this subsection extends to county
703	governments with respect to employees of county constitutional
704	officers whose offices are funded by the board of county
705	commissioners."Intent" includes only those actions or conduct
706	of the employer where the employer actually intended that the
707	consequences of its actions or conduct would be injury or death.
708	Proof of intent shall include only evidence of a deliberate and
709	knowing intent to harm. In the event that an employee recovers
710	damages from an employer either by judgment or settlement under
711	this subsection, the workers' compensation carrier for the
712	employer, or the employer if self-insured, shall have an offset
713	against any workers' compensation benefits to which the employee
714	would be entitled under this chapter and a lien against recovery
715	for any benefits paid prior to the recovery pursuant to this
716	chapter after deduction for attorney's fees and taxable costs
717	expended by the employee in the prosecution of the claim against
718	the employer.
719	Section 8. Paragraph (m) of subsection (1), paragraphs (b)
720	and (f) of subsection (2), paragraphs (d) and (j) of subsection
721	(3), paragraphs (a), (c), and (e) of subsection (5), subsection
722	(12), and paragraphs (a) and (c) of subsection (15) of section
723	440.13, Florida Statutes, are amended to read:
724	440.13 Medical services and supplies; penalty for
725	violations; limitations.--
726	(1) DEFINITIONS.--As used in this section, the term:
727	(m) "Medical necessityMedically necessary" means any
728	medical service or medical supply which is used to identify or
729	treat an illness or injury, is appropriate to the patient's
730	diagnosis and status of recoveryand recommended to the employer
731	or carrier in writing by an authorized treating physician, and
732	is consistent with the location of service, the level of care
733	provided, and applicable practice parameters. The service should
734	be widely accepted among practicing health care providers, based
735	on scientific criteria, and determined to be reasonably safe.
736	The service must not be of an experimental, investigative, or
737	research nature, except in those instances in which prior
738	approval of the Agency for Health Care Administration has been
739	obtained. The Agency for Health Care Administration shall adopt
740	rules providing for such approval on a case-by-case basis when
741	the service or supply is shown to have significant benefits to
742	the recovery and well-being of the patient.The Agency for
743	Health Care Administration shall ensure that applicable practice
744	parameters are established for physician medical services,
745	including, but not limited to, pain management and psychiatric
746	treatment.
747	(2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.--
748	(b) The employer shall provide appropriate professional or
749	nonprofessional attendant care performed only at the direction
750	and control of a physician when such care is medically
751	necessary.The physician shall prescribe such care in writing.
752	The employer or carrier is not responsible for such care until
753	the prescription for attendant care, which shall specify the
754	time periods for such care, the level of care required, and the
755	type of assistance required, has been received by the employer
756	or carrier from the authorized treating physician.The value of
757	nonprofessional attendant care provided by a family member must
758	be determined as follows:
759	1. If the family member is not employed, the per-hour
760	value equals the federal minimum hourly wage.
761	2. If the family member is employed and elects to leave
762	that employment to provide attendant or custodial care, the per-
763	hour value of that care equals the per-hour value of the family
764	member's former employment, not to exceed the per-hour value of
765	such care available in the community at large.
766	3. If the family member remains employed while providing
767	attendant or custodial care, the per-hour value of that care
768	equals the per-hour value of the family member's employment, not
769	to exceed the per-hour value of such care available in the
770	community at large.
771	4.A family member or a combination of family members
772	providing nonprofessional attendant care under this paragraph
773	may not be compensated for more than a total of 12 hours per
774	day.
775	(f) Upon the written request of the employee, the carrier
776	shall give the employee the opportunity for one change of
777	physician during the course of treatment for any one accident.
778	The employee shall be entitled to select anothersuchphysician
779	from among not fewer than three carrier-authorized physicians
780	who are not professionally affiliated.
781	(3) PROVIDER ELIGIBILITY; AUTHORIZATION.--
782	(d) A carrier must respond, by telephone or in writing, to
783	a request for authorizationfrom an authorized health care
784	providerby the close of the third business day after receipt of
785	the request. A carrier who fails to respond to a written request
786	for authorization for referral for medical treatment by the
787	close of the third business day after receipt of the request
788	consents to the medical necessity for such treatment. All such
789	requests must be made to the carrierfrom an authorized health
790	care provider. Notice to the carrier does not include notice to
791	the employer.
792	(j) Notwithstanding anything in this chapter to the
793	contrary, a sick or injured employee shall be entitled, at all
794	times, to free, full, and absolute choice in the selection of
795	the pharmacy or pharmacist dispensing and filling prescriptions
796	for medicines required under this chapter. It is expressly
797	forbidden for the agency, an employer, or a carrier, or any
798	agent or representative of the agency, an employer, or a carrier
799	to select the pharmacy or pharmacist which the sick or injured
800	employee must use; condition coverage or payment on the basis of
801	the pharmacy or pharmacist utilized; or to otherwise interfere
802	in the selection by the sick or injured employee of a pharmacy
803	or pharmacist.
804	(5) INDEPENDENT MEDICAL EXAMINATIONS.--
805	(a) In any dispute concerning overutilization, medical
806	benefits, compensability, or disability under this chapter, the
807	carrier or the employee may select an independent medical
808	examiner.If the parties agree,the examiner may be a health
809	care provider treating or providing other care to the employee.
810	An independent medical examiner may not render an opinion
811	outside his or her area of expertise, as demonstrated by
812	licensure and applicable practice parameters.The independent
813	medical examiner may not provide followup care unless both
814	parties agree on when such recommendation for care is found to
815	be medically necessary. Upon the written request of the
816	employee, the carrier shall pay the cost of only one independent
817	medical examination per accident. The cost of any additional
818	independent medical examination, including the cost of any
819	independent medical examination deposition, shall be borne by
820	the party requesting the additional independent medical
821	examination. Only the cost of independent medical examinations
822	and the cost of such depositions expressly relied upon by the
823	judge of compensation claims to award benefits in the final
824	compensation order shall be taxable costs under s. 440.34(3).
825	(c) The carrier may, at its election, contact the claimant
826	directly to schedule a reasonable time for an independent
827	medical examination. The carrier must confirm the scheduling
828	agreement in writing within 5 days and notify claimant's
829	counsel, if any, at least 7 days before the date upon which the
830	independent medical examination is scheduled to occur. An
831	attorney representing a claimant is not authorized to schedule
832	the employer or the carrier forindependent medical evaluations
833	under this subsection.Neither the employer nor the carrier
834	shall be responsible for scheduling any independent medical
835	examination other than an employer or a carrier independent
836	medical examination.
837	(e) No medical opinion other than the opinion of a medical
838	advisor appointed by the judge of compensation claims or agency,
839	an independent medical examiner, or an authorized treating
840	provider is admissible in proceedings before the judges of
841	compensation claims.The employee and the carrier may each
842	submit into evidence, and the judge of compensation claims shall
843	admit, the medical opinion of no more than one qualified
844	independent medical examiner per specialty. In cases involving
845	occupational disease or repetitive trauma, medical opinions are
846	not admissible unless based on reliable scientific principles
847	sufficiently established to have gained general acceptance in
848	the pertinent area of specialty.
849	(12) CREATION OFFIVE-MEMBERTHREE-MEMBERPANEL; GUIDES OF
850	MAXIMUM REIMBURSEMENT ALLOWANCES.--
851	(a) Afive-memberthree-memberpanel is created,
852	consisting of the Insurance Commissioner, or the Insurance
853	Commissioner's designee, andfourtwomembers to be appointed by
854	the Governor, subject to confirmation by the Senate, one member
855	who, on account of present or previous vocation, employment, or
856	affiliation, shall be classified as a representative of
857	employers;,thesecondothermember who, on account of previous
858	vocation, employment, or affiliation, shall be classified as a
859	representative of employees; effective September 1, 2003, the
860	third member who shall be a physician licensed in this state
861	experienced in workers' compensation medical provision; and,
862	effective September 1, 2003, the fourth member who is an
863	accredited insurer actuary experienced in workers' compensation
864	medical provision. The panel shall determine statewide schedules
865	of maximum reimbursement allowances for medically necessary
866	treatment, care, and attendance provided by physicians,
867	hospitals, ambulatory surgical centers, work-hardening programs,
868	pain programs, and durable medical equipment. The maximum
869	reimbursement allowances for inpatient hospital care shall be
870	based on a schedule of per diem rates, to be approved by the
871	three-memberpanel no later than March 1, 1994, to be used in
872	conjunction with a precertification manual as determined by the
873	agency. All compensable charges for hospital outpatientsurgical
874	care shall be reimbursed atthe same per diem schedule for
875	inpatient hospital and ambulatory surgical centers care,
876	effective January 1, 200475 percent of usual and customary
877	charges.Effective January 1, 2004, medical treatment other than
878	surgical care, including, but not limited to, laboratory,
879	radiology, and occupational therapy and physical therapy
880	services, performed at a hospital or ambulatory surgical center
881	shall be paid at the lesser of the workers' compensation health
882	care provider fee-for-service schedule otherwise applicable; 75
883	percent of the usual and customary charges; at an amount
884	mutually negotiated between the hospital or ambulatory surgical
885	center and the employer or insurer; or at the amount billed by
886	the health care provider. Through and including December 31,
887	2003Until the three-member panel approves a schedule of per
888	diem rates for inpatient hospital care and it becomes effective,
889	all compensable charges for hospitaloutpatientinpatientcare
890	must be reimbursed at 75 percent of their usual and customary
891	charges.The five-member panel shall establish a revised per
892	diem charge for hospitals to cover all the costs associated with
893	hospital inpatient and outpatient care, including, but not
894	limited to, medical hardware used in the human body. This revised
895	per diem fee schedule shall reduce the current fee schedule by
896	not less than 15 percent and shall be implemented effective
897	January 1, 2004. The per diem charge applicable shall be prorated
898	on the basis of four 6-hour periods of hospitalization.
899	Irrespective of the length of stay ordered by the physician, the
900	amount to be reimbursed shall be determined by the actual length
901	of hospitalization. The applicable fee schedule may take into
902	account a distinction between a surgical and a nonsurgical stay,
903	as well as the distinction between acute and trauma care. The
904	five-member panel shall revise the current workers' compensation
905	health care provider fee-for-service schedule applicable to
906	physicians and other health care providers, which shall be
907	implemented on January 1, 2004. This fee-for-service schedule
908	shall include, but not be limited to, office visits, inpatient or
909	outpatient care in a hospital or at an ambulatory surgical
910	center, and physical therapy, work-hardening, and pain programs;
911	provided, however, that the health care provider and the employer
912	or its insurer may contract with each other to pay an amount less
913	than the fee-for-service schedule amount. Notwithstanding any
914	rule issued by any administrative agency, effective January 1,
915	2004, no hospital, ambulatory surgical center, physician, or
916	other health care provider may charge a workers' compensation
917	health care provider fee-for-service fee or hospital per diem
918	fee, other than a negotiated fee for an initial consultation,
919	higher than the applicable fee-for-service schedule, regardless
920	of its actual cost. No hospital, ambulatory surgical center,
921	physician, or other health care provider may charge the employer,
922	insurer, or injured worker for any difference above the amount
923	allowed in such schedule. The revised fee-for-service and per
924	diem schedules shall be implemented no later than January 1,
925	2004. In addition to complying with all applicable provisions in
926	paragraph (c), revisions must result in no overall increase in
927	costs to employers or insurers over the total cost of the current
928	fee-for-service schedule and the hospital per diem fee schedule,
929	as well as the usual and customary cost, to the extent
930	applicable. Within that restriction, it is the intention and
931	mandate of the Legislature that the health care provider fee-for-
932	service schedule be raised, using the savings produced by a no
933	less than 15-percent overall reduction from the current hospital
934	per diem schedule. The health care provider fee-for-service
935	schedule and the hospital per diem schedules may be adjusted to
936	achieve the standards otherwise applicable to paragraph (c). This
937	provision shall be applicable only to the health care provider
938	fee-for-service and the hospital per diem schedules effective
939	January 1, 2004, but need not be implemented with regard to the
940	subsequent biennial adjustments. Every 2 years after January 1,
941	2004, the five-member panel shall review, revise, andAnnually,
942	the three-member panel shalladopt schedules of maximum
943	reimbursement allowances for physicians, hospital inpatient
944	care, hospital outpatient care, ambulatory surgical centers,
945	work-hardening programs, and pain programs.The revisions shall
946	take effect no later than January 1 of each even-numbered year
947	and shall be published at least 6 months prior to that date.
948	However, the maximum percentage of increase in the individual
949	reimbursement allowance may not exceed the percentage of
950	increase in the Consumer Price Index for the previous year.An
951	individual physician, hospital, ambulatory surgical center, pain
952	program, or work-hardening program shall be reimbursed either
953	the usual and customary charge for treatment, care, and
954	attendance, the agreed-upon contract price, or the maximum
955	reimbursement allowance in the appropriate schedule, whichever
956	is less.
957	(b) As to reimbursement for a prescription medication, the
958	reimbursement amount for a prescription shall be the average
959	wholesale pricetimes 1.2plus$2$4.18for the dispensing fee,
960	except where the carrier has contracted for a lower amount. Fees
961	for pharmaceuticals and pharmaceutical services shall be
962	reimbursable at the applicable fee schedule amount. Where the
963	employer or carrier has contracted for such services and the
964	employee elects to obtain them through a provider not a party to
965	the contract, the carrier shall reimburse at the schedule,
966	negotiated, or contract price, whichever islowestlower.
967	(c) Reimbursement for all fees and other charges for such
968	treatment, care, and attendance, including treatment, care, and
969	attendance provided by any hospital or other health care
970	provider, ambulatory surgical center, work-hardening program, or
971	pain program, must not exceed the amounts provided by the
972	uniform schedule of maximum reimbursement allowances as
973	determined by the panel or as otherwise provided in this
974	section. This subsection also applies to independent medical
975	examinations performed by health care providers under this
976	chapter. UntilDecember 31, 2003, or untilthethree-member
977	panel approves a uniform schedule of maximum reimbursement
978	allowances, whichever occurs first,and it becomes effective,
979	all compensable charges for treatment, care, and attendance
980	provided by physicians, ambulatory surgical centers, work-
981	hardening programs, or pain programs shall be reimbursed at the
982	lowest maximum reimbursement allowance across all 1992 schedules
983	of maximum reimbursement allowances for the services provided
984	regardless of the place of service. In determining thehealth
985	care provider fee-for-service schedule, the pharmaceutical
986	schedule, and the hospital per diemuniformschedule, the panel
987	shall first approve the data which it finds representative of
988	prevailing charges in the state for similar treatment, care, and
989	attendance of injured persons.The most current American Medical
990	Association procedural terminology codes with associated modified
991	relative values as published by the Centers for Medicare and
992	Medicaid Services shall be adopted for uniform reporting by
993	health care providers, hospitals, employers, and insurers and
994	updated annually no later than 45 days after the Centers for
995	Medicare and Medicaid Services notices are published in the
996	annual update in the Federal Reporter. The most current medical
997	fee-for-service and hospital per diem schedules adopted from time
998	to time by the Centers for Medicare and Medicaid Services shall
999	serve as the basis upon which the schedules for this state shall
1000	be calculated, adjusted, and set.Each health care provider,
1001	health care facility, ambulatory surgical center, work-hardening
1002	program, or pain program receiving workers' compensation
1003	payments shall maintain records verifying their usual charges.
1004	In establishing the uniform schedule of maximum reimbursement
1005	allowances, the panel must consider:
1006	1. The levels of reimbursement for similar treatment,
1007	care, and attendance made by other health care programs or
1008	third-party providers;
1009	2. The impact upon cost to employers for providing a level
1010	of reimbursement for treatment, care, and attendance which will
1011	ensure the availability of treatment, care, and attendance
1012	required by injured workers;
1013	3. The financial impact of the reimbursement allowances
1014	upon health care providers and health care facilities, including
1015	trauma centers as defined in s. 395.4001, and its effect upon
1016	their ability to make available to injured workers such
1017	medically necessary remedial treatment, care, and attendance.
1018	The uniform schedule of maximum reimbursement allowances must be
1019	reasonable, must promote health care cost containment and
1020	efficiency with respect to the workers' compensation health care
1021	delivery system, and must be sufficient to ensure availability
1022	of such medically necessary remedial treatment, care, and
1023	attendance to injured workers; and
1024	4.The effectiveness of utilization review procedures and
1025	practice parameters, whether they need to be changed, and how to
1026	improve the quality of care at a reasonable price.The most
1027	recent average maximum allowable rate of increase for hospitals
1028	determined by the Health Care Board under chapter 408.
1029	(d) In addition to establishing the uniform schedule of
1030	maximum reimbursement allowances, the panel shall:
1031	1. Take testimony, receive records, and collect data to
1032	evaluate the adequacy of the workers' compensation fee schedule,
1033	nationally recognized fee schedules and alternative methods of
1034	reimbursement to certified health care providers and health care
1035	facilities for inpatient and outpatient treatment and care.
1036	2. Survey certified health care providers and health care
1037	facilities to determine the availability and accessibility of
1038	workers' compensation health care delivery systems for injured
1039	workers.
1040	3. Survey carriers to determine the estimated impact on
1041	carrier costs and workers' compensation premium rates by
1042	implementing changes to the carrier reimbursement schedule or
1043	implementing alternative reimbursement methods.
1044	4. Submit recommendations on or before January 1, 2003,
1045	and biennially thereafter, to the President of the Senate and
1046	the Speaker of the House of Representatives on methods to
1047	improve the workers' compensation health care delivery system.
1048
1049	The division shall provide data to the panel, including but not
1050	limited to, utilization trends in the workers' compensation
1051	health care delivery system. The division shall provide the
1052	panel with an annual report regarding the resolution of medical
1053	reimbursement disputes and any actions pursuant to s. 440.13(8).
1054	The division shall provide administrative support and service to
1055	the panel to the extent requested by the panel.
1056	(15) PRACTICE PARAMETERS.--
1057	(a) The Agency for Health Care Administration, in
1058	conjunction with the department and appropriate health
1059	professional associations and health-related organizations shall
1060	develop andshallmayadopt by rule scientifically sound
1061	practice parameters for medical procedures relevant to workers'
1062	compensation claimants. Practice parameters developed under this
1063	section must focus on identifying effective remedial treatments
1064	and promoting the appropriate utilization of health care
1065	resources. Priority must be given to those procedures that
1066	involve the greatest utilization of resources either because
1067	they are the most costly or because they are the most frequently
1068	performed. Practice parameters for treatment of the 10 top
1069	procedures associated with workers' compensation injuries,
1070	including the remedial treatment of lower-back injuries, pain
1071	management, and psychiatry,must be developed by December 31,
1072	20031994.
1073	(c) Procedures must be instituted which provide for the
1074	periodic review and revision of practice parameters based on the
1075	latest outcomes data, research findings, technological
1076	advancements, and clinical experiences, at least once every23
1077	years.
1078	Section 9. Paragraph (d) of subsection (1) of section
1079	440.134, Florida Statutes, is amended to read:
1080	440.134 Workers' compensation managed care arrangement.--
1081	(1) As used in this section, the term:
1082	(d) "Grievance" meansa written complaint, other than a
1083	petition for benefits, filed by the injured worker pursuant to
1084	the requirements of the managed care arrangement expressing
1085	dissatisfaction with themedical care provided by aninsurer's
1086	workers' compensation managed carearrangement's refusal to
1087	provide medical care or dissatisfaction with the medical care
1088	providedarrangement health care providers, expressed in writing
1089	by an injured worker.
1090	Section 10. Subsection (1) of section 440.14, Florida
1091	Statutes, is amended to read:
1092	440.14 Determination of pay.--
1093	(1) Except as otherwise provided in this chapter, the
1094	average weekly wages of the injured employeeon the date of the
1095	accidentat the time of the injuryshall be taken as the basis
1096	upon which to compute compensation and shall be determined,
1097	subject to the limitations of s. 440.12(2), as follows:
1098	(a) If the injured employee has worked in the employment
1099	in which she or he was workingon the date of the accidentat
1100	the time of the injury, whether for the same or another
1101	employer, during substantially the whole of 13 weeks immediately
1102	preceding theaccidentinjury, her or his average weekly wage
1103	shall be one-thirteenth of the total amount of wages earned in
1104	such employment during the 13 weeks. As used in this paragraph,
1105	the term "substantially the whole of 13 weeks"means the
1106	calendarshall be deemed to mean and refer to a constructive
1107	period of 13 weeks as a whole, which shall be defined asthe 13
1108	calendar weeks before the date of the accident, excluding the
1109	week during which the accident occurred.a consecutive period of
1110	91 days, andThe term "during substantially the whole of 13
1111	weeks" shall be deemed to mean during not less than7590
1112	percent of the total customaryfull-timehours of employment
1113	within such period considered as a whole.
1114	(b) If the injured employee has not worked in such
1115	employment during substantially the whole of 13 weeks
1116	immediately preceding theaccidentinjury, the wages of a
1117	similar employee in the same employment who has worked
1118	substantially the whole of such 13 weeks shall be used in making
1119	the determination under the preceding paragraph.
1120	(c) If an employee is a seasonal worker and the foregoing
1121	method cannot be fairly applied in determining the average
1122	weekly wage, then the employee may use, instead of the 13 weeks
1123	immediately preceding theaccidentinjury, the calendar year or
1124	the 52 weeks immediately preceding theaccidentinjury. The
1125	employee will have the burden of proving that this method will
1126	be more reasonable and fairer than the method set forth in
1127	paragraphs (a) and (b) and, further, must document prior
1128	earnings with W-2 forms, written wage statements, or income tax
1129	returns. The employer shall have 30 days following the receipt
1130	of this written proof to adjust the compensation rate, including
1131	the making of any additional payment due for prior weekly
1132	payments, based on the lower rate compensation.
1133	(d) If any of the foregoing methods cannot reasonably and
1134	fairly be applied, the full-time weekly wages of the injured
1135	employee shall be used, except as otherwise provided in
1136	paragraph (e) or paragraph (f).
1137	(e) If it is established that the injured employee was
1138	under 22 years of age whenthe accident occurredinjuredand
1139	that under normal conditions her or his wages should be expected
1140	to increase during the period of disability, the fact may be
1141	considered in arriving at her or his average weekly wages.
1142	(f) If it is established that the injured employee was a
1143	part-time workeron the date of the accidentat the time of the
1144	injury, that she or he had adopted part-time employment as a
1145	customary practice, and that under normal working conditions she
1146	or he probably would have remained a part-time worker during the
1147	period of disability, these factors shall be considered in
1148	arriving at her or his average weekly wages. For the purpose of
1149	this paragraph, the term "part-time worker" means an individual
1150	who customarily works less than the full-time hours or full-time
1151	workweek of a similar employee in the same employment.
1152	(g) If compensation is due for a fractional part of the
1153	week, the compensation for such fractional part shall be
1154	determined by dividing the weekly compensation rate by the
1155	number of days employed per week to compute the amount due for
1156	each day.
1157	Section 11. Subsections (1), (2), and (3) of section
1158	440.15, Florida Statutes, are amended to read:
1159	440.15 Compensation for disability.--Compensation for
1160	disability shall be paid to the employee, subject to the limits
1161	provided in s. 440.12(2), as follows:
1162	(1) PERMANENT TOTAL DISABILITY.--
1163	(a) In case of total disability adjudged to be permanent,
1164	662/3 percent of the average weekly wages shall be paid to the
1165	employee during the continuance of such total disability.
1166	(b)In the absence of conclusive proof of a substantial
1167	earning capacity,only a catastrophic injury as defined in s.
1168	440.02(38)shallbe presumed to, in the absence of conclusive
1169	proof of a substantial earning capacity,constitute permanent
1170	total disability.No compensation shall be payable under
1171	paragraph (a) if the employee is engaged in or is physically
1172	capable of engaging in any work, including sheltered employment.
1173	The burden is on the employee to establish that he or she is
1174	unable to work on a full-time or part-time basis as a result of
1175	the industrial accident, if such work is available within a 50-
1176	mile radius of the employee’s residence or within a greater
1177	distance as determined by the judge to be reasonable under the
1178	circumstances. Such benefits shall be payable until the employee
1179	reaches his or her 70th birthday, notwithstanding any age limits.
1180	If the accident occurred on or after the employee’s 65th
1181	birthday, benefits shall be payable during the continuance of
1182	permanent total disability, not to exceed 5 years following the
1183	determination of permanent total disability.Only claimants with
1184	catastrophic injuries are eligible for permanent total benefits.
1185	In no other case may permanent total disability be awarded.
1186	(c) In cases of permanent total disability resulting from
1187	injuries that occurred prior to July 1, 1955, such payments
1188	shall not be made in excess of 700 weeks.
1189	(d) If an employee who is being paid compensation for
1190	permanent total disability becomes rehabilitated to the extent
1191	that she or he establishes an earning capacity, the employee
1192	shall be paid, instead of the compensation provided in paragraph
1193	(a), benefits pursuant to subsection (3). The department shall
1194	adopt rules to enable a permanently and totally disabled
1195	employee who may have reestablished an earning capacity to
1196	undertake a trial period of reemployment without prejudicing her
1197	or his return to permanent total status in the case that such
1198	employee is unable to sustain an earning capacity.
1199	(e)1. The employer's or carrier's right to conduct
1200	vocational evaluations or testing pursuant to s. 440.491
1201	continues even after the employee has been accepted or
1202	adjudicated as entitled to compensation under this chapter. This
1203	right includes, but is not limited to, instances in which such
1204	evaluations or tests are recommended by a treating physician or
1205	independent medical-examination physician, instances warranted
1206	by a change in the employee's medical condition, or instances in
1207	which the employee appears to be making appropriate progress in
1208	recuperation. This right may not be exercised more than once
1209	every calendar year.
1210	2. The carrier must confirm the scheduling of the
1211	vocational evaluation or testing in writing, and must notify
1212	employee's counsel, if any, at least 7 days before the date on
1213	which vocational evaluation or testing is scheduled to occur.
1214	3. Pursuant to an order of the judge of compensation
1215	claims, the employer or carrier may withhold payment of benefits
1216	for permanent total disability or supplements for any period
1217	during which the employee willfully fails or refuses to appear
1218	without good cause for the scheduled vocational evaluation or
1219	testing.
1220	(f)1. If permanent total disability results from injuries
1221	that occurred subsequent to June 30, 1955, and for which the
1222	liability of the employer for compensation has not been
1223	discharged under s. 440.20(11), the injured employee shall
1224	receive additional weekly compensation benefits equal to 5
1225	percent of her or his weekly compensation rate, as established
1226	pursuant to the law in effect on the date of her or his injury,
1227	multiplied by the number of calendar years since the date of
1228	injury. The weekly compensation payable and the additional
1229	benefits payable under this paragraph, when combined, may not
1230	exceed the maximum weekly compensation rate in effect at the
1231	time of payment as determined pursuant to s. 440.12(2).
1232	Entitlement toThese supplemental payments shallnot be paid or
1233	payable after the employee attainscease atage 62, whether or
1234	notifthe employeehas applied for or is ineligible to applyis
1235	eligiblefor social security benefits under 42 U.S.C. ss. 402
1236	and 423, whether or not the employee has applied for such
1237	benefits. These supplemental benefits shall be paid by the
1238	department out of the Workers' Compensation Administration Trust
1239	Fund when the injury occurred subsequent to June 30, 1955, and
1240	before July 1, 1984. These supplemental benefits shall be paid
1241	by the employer when the injury occurred on or after July 1,
1242	1984. Supplemental benefits are not payable for any period prior
1243	to October 1, 1974.
1244	2.a. The department shall provide by rule for the periodic
1245	reporting to the department of all earnings of any nature and
1246	social security income by the injured employee entitled to or
1247	claiming additional compensation under subparagraph 1. Neither
1248	the department nor the employer or carrier shall make any
1249	payment of those additional benefits provided by subparagraph 1.
1250	for any period during which the employee willfully fails or
1251	refuses to report upon request by the department in the manner
1252	prescribed by such rules.
1253	b. The department shall provide by rule for the periodic
1254	reporting to the employer or carrier of all earnings of any
1255	nature and social security income by the injured employee
1256	entitled to or claiming benefits for permanent total disability.
1257	The employer or carrier is not required to make any payment of
1258	benefits for permanent total disability for any period during
1259	which the employee willfully fails or refuses to report upon
1260	request by the employer or carrier in the manner prescribed by
1261	such rules or if any employee who is receiving permanent total
1262	disability benefits refuses to apply for or cooperate with the
1263	employer or carrier in applying for social security benefits.
1264	3. When an injured employee receives a full or partial
1265	lump-sum advance of the employee's permanent total disability
1266	compensation benefits, the employee's benefits under this
1267	paragraph shall be computed on the employee's weekly
1268	compensation rate as reduced by the lump-sum advance.
1269	(2) TEMPORARY TOTAL DISABILITY.--
1270	(a) In case of disability total in character but temporary
1271	in quality, 662/3 percent of the average weekly wages shall be
1272	paid to the employee during the continuance thereof, not to
1273	exceed 104 weeks except as provided in this subsection, s.
1274	440.12(1), and s. 440.14(3). Once the employee reaches the
1275	maximum number of weeks allowed, or the employee reaches the
1276	date of maximum medical improvement, whichever occurs earlier,
1277	temporary disability benefits shall cease and the injured
1278	worker's permanent impairment shall be determined.
1279	(b) Notwithstanding the provisions of paragraph (a), an
1280	employee who has sustained the loss of an arm, leg, hand, or
1281	foot, has been rendered a paraplegic, paraparetic, quadriplegic,
1282	or quadriparetic, or has lost the sight of both eyes shall be
1283	paid temporary total disability of 80 percent of her or his
1284	average weekly wage. The increased temporary total disability
1285	compensation provided for in this paragraph must not extend
1286	beyond 6 months from the date of the accident; however, such
1287	benefits are not due or payable if the employee is eligible for,
1288	entitled to, or collecting permanent total disability benefits.
1289	The compensation provided by this paragraph is not subject to
1290	the limits provided in s. 440.12(2), but instead is subject to a
1291	maximum weekly compensation rate of $700. If, at the conclusion
1292	of this period of increased temporary total disability
1293	compensation, the employee is still temporarily totally
1294	disabled, the employee shall continue to receive temporary total
1295	disability compensation as set forth in paragraphs (a) and (c).
1296	The period of time the employee has received this increased
1297	compensation will be counted as part of, and not in addition to,
1298	the maximum periods of time for which the employee is entitled
1299	to compensation under paragraph (a) but not paragraph (c).
1300	(c) Temporary total disability benefits paid pursuant to
1301	this subsection shall include such period as may be reasonably
1302	necessary for training in the use of artificial members and
1303	appliances, and shall include such period as the employee may be
1304	receiving training and education under a program pursuant to s.
1305	440.491. Notwithstanding s. 440.02, the date of maximum medical
1306	improvement for purposes of paragraph (3)(b) shall be no earlier
1307	than the last day for which such temporary disability benefits
1308	are paid.
1309	(d) The department shall, by rule, provide for the
1310	periodic reporting to the department, employer, or carrier of
1311	all earned income, including income from social security, by the
1312	injured employee who is entitled to or claiming benefits for
1313	temporary total disability. The employer or carrier is not
1314	required to make any payment of benefits for temporary total
1315	disability for any period during which the employee willfully
1316	fails or refuses to report upon request by the employer or
1317	carrier in the manner prescribed by the rules. The rule must
1318	require the claimant to personally sign the claim form and
1319	attest that she or he has reviewed, understands, and
1320	acknowledges the foregoing.
1321	(3) PERMANENT IMPAIRMENTAND WAGE-LOSSBENEFITS.--
1322	(a) Impairment benefits.--
1323	1. Once the employee has reached the date of maximum
1324	medical improvement, impairment benefits are due and payable
1325	within 20 days after the carrier has knowledge of the
1326	impairment.
1327	2. The three-member panel, in cooperation with the
1328	department, shall establish and use a uniform permanent
1329	impairment rating schedule. This schedule must be based on
1330	medically or scientifically demonstrable findings as well as the
1331	systems and criteria set forth in the American Medical
1332	Association's Guides to the Evaluation of Permanent Impairment;
1333	the Snellen Charts, published by American Medical Association
1334	Committee for Eye Injuries; and the Minnesota Department of
1335	Labor and Industry Disability Schedules. The schedule should be
1336	based upon objective findings. The schedule shall be more
1337	comprehensive than the AMA Guides to the Evaluation of Permanent
1338	Impairment and shall expand the areas already addressed and
1339	address additional areas not currently contained in the guides.
1340	On August 1, 1979, and pending the adoption, by rule, of a
1341	permanent schedule, Guides to the Evaluation of Permanent
1342	Impairment, copyright 1977, 1971, 1988, by the American Medical
1343	Association, shall be the temporary schedule and shall be used
1344	for the purposes hereof. For injuries after July 1, 1990,
1345	pending the adoption by rule of a uniform disability rating
1346	agency schedule, the Minnesota Department of Labor and Industry
1347	Disability Schedule shall be used unless that schedule does not
1348	address an injury. In such case, the Guides to the Evaluation of
1349	Permanent Impairment by the American Medical Association shall
1350	be used. Determination of permanent impairment under this
1351	schedule must be made by a physician licensed under chapter 458,
1352	a doctor of osteopathic medicine licensed under chapters 458 and
1353	459, a chiropractic physician licensed under chapter 460, a
1354	podiatric physician licensed under chapter 461, an optometrist
1355	licensed under chapter 463, or a dentist licensed under chapter
1356	466, as appropriate considering the nature of the injury. No
1357	other persons are authorized to render opinions regarding the
1358	existence of or the extent of permanent impairment.
1359	3. All impairment income benefits shall be based on an
1360	impairment rating using the impairment schedule referred to in
1361	subparagraph 2. Impairment income benefits are paidbiweekly
1362	weeklyatatherateequal toof 50 percent ofthe employee's
1363	compensation rate,average weekly temporary total disability
1364	benefitnot to exceed the maximum weekly benefit under s.
1365	440.12. An employee's entitlement to impairment income benefits
1366	begins the day after the employee reaches maximum medical
1367	improvement or the expiration of temporary benefits, whichever
1368	occurs earlier, and continues until the earlier of:
1369	a. The expiration of a period computed at the rate of 3
1370	weeks for each percentage point of impairment; or
1371	b. The death of the employee.
1372	4. After the employee has been certified by a doctor as
1373	having reached maximum medical improvement or 6 weeks before the
1374	expiration of temporary benefits, whichever occurs earlier, the
1375	certifying doctor shall evaluate the condition of the employee
1376	and assign an impairment rating, using the impairment schedule
1377	referred to in subparagraph 2. Compensation is not payable for
1378	the mental, psychological, or emotional injury arising out of
1379	depression from being out of work, from preexisting mental,
1380	psychological, or emotional conditions, or due to chronic pain
1381	which cannot be substantiated by objective medical findings. If
1382	the certification and evaluation are performed by a doctor other
1383	than the employee's treating doctor, the certification and
1384	evaluation must be submitted to the treating doctor, and the
1385	treating doctor must indicate agreement or disagreement with the
1386	certification and evaluation. The certifying doctor shall issue
1387	a written report to the department, the employee, and the
1388	carrier certifying that maximum medical improvement has been
1389	reached, stating the impairment rating, and providing any other
1390	information required by the department by rule. If the employee
1391	has not been certified as having reached maximum medical
1392	improvement before the expiration of 102 weeks after the date
1393	temporary total disability benefits begin to accrue, the carrier
1394	shall notify the treating doctor of the requirements of this
1395	section.
1396	5. The carrier shall pay the employee impairment income
1397	benefits for a period based on the impairment rating.
1398	6. The department may by rule specify forms and procedures
1399	governing the method of payment of wage loss and impairment
1400	benefits for dates of accidents before January 1, 1994, and for
1401	dates of accidents on or after January 1, 1994.
1402
1403	Impairment benefits as defined by this paragraph are only
1404	payable for impairment ratings for physical impairments.
1405	Impairment benefits for permanent psychiatric impairment are
1406	limited to the payment of impairment benefits, as calculated
1407	under subparagraph 3., for a 1-percent permanent psychiatric
1408	impairment resulting from the work injury.
1409	(b) Supplemental benefits.--
1410	1. All supplemental benefits must be paid in accordance
1411	with this subsection. An employee is entitled to supplemental
1412	benefits as provided in this paragraph as of the expiration of
1413	the impairment period, if:
1414	a. The employee has an impairment rating from the
1415	compensable injury of 20 percent or more as determined pursuant
1416	to this chapter;
1417	b. The employee has not returned to work or has returned
1418	to work earning less than 80 percent of the employee's average
1419	weekly wage as a direct result of the employee's impairment; and
1420	c. The employee has in good faith attempted to obtain
1421	employment commensurate with the employee's ability to work.
1422	2. If an employee is not entitled to supplemental benefits
1423	at the time of payment of the final weekly impairment income
1424	benefit because the employee is earning at least 80 percent of
1425	the employee's average weekly wage, the employee may become
1426	entitled to supplemental benefits at any time within 1 year
1427	after the impairment income benefit period ends if:
1428	a. The employee earns wages that are less than 80 percent
1429	of the employee's average weekly wage for a period of at least
1430	90 days;
1431	b. The employee meets the other requirements of
1432	subparagraph 1.; and
1433	c. The employee's decrease in earnings is a direct result
1434	of the employee's impairment from the compensable injury.
1435	3. If an employee earns wages that are at least 80 percent
1436	of the employee's average weekly wage for a period of at least
1437	90 days during which the employee is receiving supplemental
1438	benefits, the employee ceases to be entitled to supplemental
1439	benefits for the filing period. Supplemental benefits that have
1440	been terminated shall be reinstated when the employee satisfies
1441	the conditions enumerated in subparagraph 2. and files the
1442	statement required under subparagraph 4. Notwithstanding any
1443	other provision, if an employee is not entitled to supplemental
1444	benefits for 12 consecutive months, the employee ceases to be
1445	entitled to any additional income benefits for the compensable
1446	injury. If the employee is discharged within 12 months after
1447	losing entitlement under this subsection, benefits may be
1448	reinstated if the employee was discharged at that time with the
1449	intent to deprive the employee of supplemental benefits.
1450	4. After the initial determination of supplemental
1451	benefits, the employee must file a statement with the carrier
1452	stating that the employee has earned less than 80 percent of the
1453	employee's average weekly wage as a direct result of the
1454	employee's impairment, stating the amount of wages the employee
1455	earned in the filing period, and stating that the employee has
1456	in good faith sought employment commensurate with the employee's
1457	ability to work. The statement must be filed quarterly on a form
1458	and in the manner prescribed by the department. The department
1459	may modify the filing period as appropriate to an individual
1460	case. Failure to file a statement relieves the carrier of
1461	liability for supplemental benefits for the period during which
1462	a statement is not filed.
1463	5. The carrier shall begin payment of supplemental
1464	benefits not later than the seventh day after the expiration
1465	date of the impairment income benefit period and shall continue
1466	to timely pay those benefits. The carrier may request a
1467	mediation conference for the purpose of contesting the
1468	employee's entitlement to or the amount of supplemental income
1469	benefits.
1470	6. Supplemental benefits are calculated quarterly and paid
1471	monthly. For purposes of calculating supplemental benefits, 80
1472	percent of the employee's average weekly wage and the average
1473	wages the employee has earned per week are compared quarterly.
1474	For purposes of this paragraph, if the employee is offered a
1475	bona fide position of employment that the employee is capable of
1476	performing, given the physical condition of the employee and the
1477	geographic accessibility of the position, the employee's weekly
1478	wages are considered equivalent to the weekly wages for the
1479	position offered to the employee.
1480	7. Supplemental benefits are payable at the rate of 80
1481	percent of the difference between 80 percent of the employee's
1482	average weekly wage determined pursuant to s. 440.14 and the
1483	weekly wages the employee has earned during the reporting
1484	period, not to exceed the maximum weekly income benefit under s.
1485	440.12.
1486	8. The department may by rule define terms that are
1487	necessary for the administration of this section and forms and
1488	procedures governing the method of payment of supplemental
1489	benefits for dates of accidents before January 1, 1994, and for
1490	dates of accidents on or after January 1, 1994.
1491	(c) Duration of temporary impairment and supplemental
1492	income benefits.--The employee's eligibility for temporary
1493	benefits, impairment income benefits, and supplemental benefits
1494	terminates on the expiration of 401 weeks after the date of
1495	injury.
1496	Section 12. Paragraph (e) of subsection (1) and subsection
1497	(2) of section 440.151, Florida Statutes, are amended to read:
1498	440.151 Occupational diseases.--
1499	(1)
1500	(e) No compensation shall be payable for disability or
1501	death resulting from tuberculosis arising out of and in the
1502	course of employment by the Department of Health at a state
1503	tuberculosis hospital, or aggravated by such employment, when
1504	the employee had suffered from said disease at any time prior to
1505	the commencement of such employment.Both causation and
1506	sufficient exposure to a specific harmful substance shown to be
1507	present in the workplace to support causation shall be proven by
1508	clear and convincing evidence.
1509	(2) Whenever used in this section the term "occupational
1510	disease" shall be construed to mean only a disease which is due
1511	to causes and conditions which are characteristic of and
1512	peculiar to a particular trade, occupation, process, or
1513	employment, and to exclude all ordinary diseases of life to
1514	which the general public is exposed, unless the incidence of the
1515	disease is substantially higher in the particular trade,
1516	occupation, process, or employment than for the general public.
1517	"Occupational disease" means only a disease for which there are
1518	epidemiological studies showing that exposure to the specific
1519	substance involved, at the levels to which the employee was
1520	exposed, can cause the precise disease sustained by the
1521	employee.
1522	Section 13. Subsections (1), (2), (5), (7), and (8) of
1523	section 440.192, Florida Statutes, are amended, and a new
1524	subsection (9) is added to said section, to read:
1525	440.192 Procedure for resolving benefit disputes.--
1526	(1) Subject to s. 440.191, any employee who has not
1527	received a benefit to which the employee believes she or he is
1528	entitled under this chapter shall file by certified mail, or by
1529	electronic means approved by the Deputy Chief Judge, with the
1530	Office of the Judges of Compensation Claims a petition for
1531	benefits which meets the requirements of this section. The
1532	Office of the Judges of Compensation Claimsdepartmentshall
1533	inform employees of the location of the Office of the Judges of
1534	Compensation Claims for purposes of filing a petition for
1535	benefits. The employee shall also serve copies of the petition
1536	for benefits by certified mail, or by electronic means approved
1537	by the Deputy Chief Judge, upon the employer,andthe employer's
1538	carrier, and the Office of the Judges of Compensation Claims.
1539	The Deputy Chief Judge shall refer the petitions to the
1540	presidingjudges of compensation claims.
1541	(2) Upon receiptof a petition, the Office of the Judges
1542	of Compensation Claims shall review each petition and shall
1543	dismiss each petition or any portion of such a petition, upon
1544	the judge's own motion. A judge of compensation claims shall
1545	dismiss, upon the judge's own motionor upon the motion of any
1546	party,a petition for benefits or any portion thereofthat does
1547	not on its face specifically identify or itemize the following:
1548	(a) Name, address, telephone number, and social security
1549	number of the employee.
1550	(b) Name, address, and telephone number of the employer.
1551	(c) A detailed description of the injury and cause of the
1552	injury, including the location of the occurrence and the date or
1553	dates of the accident.
1554	(d) A detailed description of the employee's job, work
1555	responsibilities, and work the employee was performing when the
1556	injury occurred.
1557	(e) The time period for which compensation and the
1558	specific classification of compensation were not timely
1559	provided.
1560	(f) Date of maximum medical improvement, character of
1561	disability, and specific statement of all benefits or
1562	compensation that the employee is seeking.
1563	(g) All specific travel costs to which the employee
1564	believes she or he is entitled, including dates of travel and
1565	purpose of travel, means of transportation, and mileage and
1566	including the date the request for mileage was filed with the
1567	carrier and a copy of the request filed with the carrier.
1568	(h) Specific listing of all medical charges alleged
1569	unpaid, including the name and address of the medical provider,
1570	the amounts due, and the specific dates of treatment.
1571	(i) The type or nature of treatment care or attendance
1572	sought and the justification for such treatment.If the employee
1573	is under the care of a physician for the injury identified under
1574	paragraph (c), a copy of the physician's request, authorization,
1575	or recommendation for treatment, care, or attendance must
1576	accompany the petition.
1577	(j) Specific explanation of any other disputed issue that
1578	a judge of compensation claims will be called to rule upon.
1579	(k) Any other information and documentation the Deputy
1580	Chief Judge may require by rule.
1581
1582	The dismissal of any petition or portion of such a petition
1583	under this section is without prejudice and does not require a
1584	hearing.
1585	(5) All motions to dismiss must state with particularity
1586	the basis for the motion. The judge of compensation claims shall
1587	enter an order upon such motions without hearing, unless good
1588	cause for hearing is shown. When any petition or portion of a
1589	petition is dismissed for lack of specificity under this
1590	subsection, the claimant mustfile an amended petition withinbe
1591	allowed20 days after the date of the order of dismissalin
1592	which to file an amended petition. Any grounds for dismissal for
1593	lack of specificity under this section which are not assertedby
1594	a response to petition or motion to dismisswithin6030days
1595	after receipt of the petition for benefits are thereby waived.
1596	(7)Notwithstanding the provisions of s. 440.34,A judge
1597	of compensation claims may not award attorney's fees payable by
1598	the carrier for services expended or costs incurred prior to the
1599	filing of a petition that does not meet the requirements of this
1600	section.
1601	(8) Within3014days after receipt of a petition for
1602	benefits by certified mail, the carrier must either payor deny
1603	the requested benefitsandwithout prejudice to its right to
1604	deny within 120 days from receipt of the petition orfile a
1605	response to petition with the Office of the Judges of
1606	Compensation Claimsthat lists. The carrier must listall
1607	benefits requested but not paid andexplainsexplainits
1608	justification for nonpayment in the response to petition.A
1609	carrier that does not deny compensability in accordance with s.
1610	440.20(4) is deemed to have accepted the employee's injuries as
1611	compensable, unless it can establish material facts relevant to
1612	the issue of compensability that could not have been discovered
1613	through reasonable investigation within the 120-day period.The
1614	carrier shall provide copies of the response to the filing
1615	party, employer, and claimant by certified mail.
1616	(9) Unless stipulated in writing by the parties, only
1617	claims that have been properly raised by a petition for benefits
1618	and have undergone mediation may be considered for adjudication
1619	by a judge of compensation claims.
1620	Section 14. Paragraphs (a) and (d) of subsection (11) of
1621	section 440.20, Florida Statutes, are amended to read:
1622	440.20 Time for payment of compensation; penalties for
1623	late payment.--
1624	(11)(a) When a claimant is not represented by counsel,
1625	upon joint petition of all interested parties, a lump-sum
1626	payment in exchange for the employer's or carrier's release from
1627	liability for future medical expenses, as well as future
1628	payments of compensation expenses and any other benefits
1629	provided under this chapter, shall be allowed at any time in any
1630	case in which the employer or carrier has filed a written notice
1631	of denialwithin 120 days after the employer receives notice of
1632	the injury,and the judge of compensation claims at a hearing to
1633	consider the settlement proposal finds a justiciable controversy
1634	as to legal or medical compensability of the claimed injury or
1635	the alleged accident. The employer or carrier may not pay any
1636	attorney's fees on behalf of the claimant for any settlement
1637	under this section unless expressly authorized elsewhere in this
1638	chapter. Upon the joint petition of all interested parties and
1639	after giving due consideration to the interests of all
1640	interested parties, the judge of compensation claims may enter a
1641	compensation order approving and authorizing the discharge of
1642	the liability of the employer for compensation and remedial
1643	treatment, care, and attendance, as well as rehabilitation
1644	expenses, by the payment of a lump sum. Such a compensation
1645	order so entered upon joint petition of all interested parties
1646	is not subject to modification or review under s. 440.28. If the
1647	settlement proposal together with supporting evidence is not
1648	approved by the judge of compensation claims, it shall be
1649	considered void. Upon approval of a lump-sum settlement under
1650	this subsection, the judge of compensation claims shall send a
1651	report to the Chief Judge of the amount of the settlement and a
1652	statement of the nature of the controversy. The Chief Judge
1653	shall keep a record of all such reports filed by each judge of
1654	compensation claims and shall submit to the Legislature a
1655	summary of all such reports filed under this subsection annually
1656	by September 15.
1657	(d)1. With respect to any lump-sum settlement under this
1658	subsection, a judge of compensation claims must consider at the
1659	time of the settlement, whether the settlement allocation
1660	provides for the appropriate recovery of child support
1661	arrearages.Neither the employer nor the carrier has a duty to
1662	investigate or collect information regarding child support
1663	arrearages.
1664	2. When reviewing any settlement of lump-sum payment
1665	pursuant to this subsection, judges of compensation claims shall
1666	consider the interests of the worker and the worker's family
1667	when approving the settlement, which must consider and provide
1668	for appropriate recovery of past due support.
1669	Section 15. Subsection (1) and paragraph (d) of subsection
1670	(4) of section 440.25, Florida Statutes, are amended to read:
1671	440.25 Procedures for mediation and hearings.--
1672	(1) Within 90 days after a petition for benefits is filed
1673	under s. 440.192, a mediation conference concerning such
1674	petition shall be held. Within 40 days, but not sooner than 30
1675	daysafter such petition is filed, the judge of compensation
1676	claims shall notify the interested parties by order that astate
1677	mediation conference concerning such petition will be held
1678	unless the parties have notified the Office of the Judges of
1679	Compensation Claims that aprivatemediation has been held. Such
1680	order must give the date by which the mediation conference must
1681	be heldif a state mediation has not been or will not be
1682	scheduled. Such order may be served personally upon the
1683	interested parties or may be sent to the interested parties by
1684	mail. The claimant or the adjuster of the employer or carrier
1685	may, at the mediator's discretion, attend the mediation
1686	conference by telephone or, if agreed to by the parties, other
1687	electronic means. A continuance may be granted if the requesting
1688	party demonstrates to the judge of compensation claims that the
1689	reason for requesting the continuance arises from circumstances
1690	beyond the party's control. Any order granting a continuance
1691	must set forth the date of the rescheduled mediation conference.
1692	A mediation conference may not be used solely for the purpose of
1693	mediating attorney's fees. (4)
1694	(d) The final hearing shall be held within 210 days after
1695	receipt of the petition for benefits in the county where the
1696	injury occurred, if the injury occurred in this state, unless
1697	otherwise agreed to between the parties and authorized by the
1698	judge of compensation claims in the county where the injury
1699	occurred. If the injury occurred outside the state and is one
1700	for which compensation is payable under this chapter, then the
1701	final hearing may be held in the county of the employer's
1702	residence or place of business, or in any other county of the
1703	state that will, in the discretion of the Deputy Chief Judge, be
1704	the most convenient for a hearing.Continuances may be granted
1705	only if the requesting party demonstrates to the judge of
1706	compensation claims that the reason for requesting the
1707	continuance arises from circumstances beyond the party's
1708	control. The written consent of the claimant must be obtained
1709	before any request from a claimant's attorney is granted for an
1710	additional continuance after the initial continuance has been
1711	granted.The final hearing shall be conducted by a judge of
1712	compensation claims, who shall, within 30 days after final
1713	hearing or closure of the hearing record, unless otherwise
1714	agreed by the parties, enter a final order on the merits of the
1715	disputed issues. The judge of compensation claims may enter an
1716	abbreviated final order in cases in which compensability is not
1717	disputed. Either party may request separate findings of fact and
1718	conclusions of law. At the final hearing, the claimant and
1719	employer may each present evidence with respect to the claims
1720	presented by the petition for benefits and may be represented by
1721	any attorney authorized in writing for such purpose. When there
1722	is a conflict in the medical evidence submitted at the hearing,
1723	the provisions of s. 440.13 shall apply. The report or testimony
1724	of the expert medical advisor shall be made a part of the record
1725	of the proceeding and shall be given the same consideration by
1726	the judge of compensation claims as is accorded other medical
1727	evidence submitted in the proceeding; and all costs incurred in
1728	connection with such examination and testimony may be assessed
1729	as costs in the proceeding, subject to the provisions of s.
1730	440.13. No judge of compensation claims may make a finding of a
1731	degree of permanent impairment that is greater than the greatest
1732	permanent impairment rating given the claimant by any examining
1733	or treating physician, except upon stipulation of the parties.
1734	Any benefit due but not raised at the final hearing which was
1735	ripe, due, or owing at the time of the final hearing is waived.
1736	Section 16. Section 440.271, Florida Statutes, is amended
1737	to read:
1738	440.271 Appeal of order ofWorkers’ Compensation Appeals
1739	Commissionjudge of compensation claims.--Review of any order of
1740	the Workers’ Compensation Appeals Commissiona judge of
1741	compensation claimsentered pursuant to this chapter shall be
1742	subject to review only by notice ofbyappeal to the District
1743	Court of Appealin the appellate district in which the issues
1744	were decided before the judge of compensation claims, First
1745	District. Appeals shall be filed in accordance with rules of
1746	procedure prescribed by the Supreme Court for review of such
1747	orders. The department shall be given notice of any proceedings
1748	pertaining to s. 440.25, regarding indigency, or s. 440.49,
1749	regarding the Special Disability Trust Fund, and shall have the
1750	right to intervene in any proceedings.
1751	Section 17. Subsection (4) of section 440.29, Florida
1752	Statutes, is amended to read:
1753	440.29 Procedure before the judge of compensation claims.-
1754	-
1755	(4) All medical reports of authorized treating health care
1756	providersor independent medical examiners, whose medical
1757	opinions are submitted under s. 440.13(5)(e),relating to the
1758	claimant and subject accident shall be received into evidence by
1759	the judge of compensation claims upon proper motion. However,
1760	such records must be served on the opposing party at least 30
1761	days before the final hearing. This section does not limit any
1762	right of further discovery, including, but not limited to,
1763	depositions.
1764	Section 18. Section 440.315, Florida Statutes, is created
1765	to read:
1766	440.315 Attorney's fees.--
1767	(1) All attorney’s fees owed for services rendered to a
1768	claimant under this chapter shall be the sole responsibility of
1769	the claimant and shall be paid by the claimant in the amount
1770	equal to 20 percent of the first $5,000 of the amount of the
1771	benefits secured, 15 percent of the next $5,000 of the amount of
1772	the benefits secured, 10 percent of the remaining amount of the
1773	benefits secured, to be provided during the first 10 years after
1774	the date the claim is filed, and 5 percent of the benefits
1775	secured after 10 years after the date the claim is filed. The
1776	term “benefits secured” means benefits obtained as a result of
1777	the claimant’s attorney’s legal services rendered in connection
1778	with a petition for benefits. As to any settlement under s.
1779	440.20(11)(c), the attorney’s fee shall be paid by the claimant
1780	in an amount up to and including 15 percent of the settlement
1781	amount.
1782	(2) Notwithstanding subsection (1), a claimant shall be
1783	entitled to recover a reasonable attorney’s fee, which shall be
1784	in an amount equal to the formula set out in subsection (1),
1785	from an employer or carrier against whom she or he successfully
1786	asserts a petition for medical benefits only, if the claimant
1787	has not filed or is not entitled to file at such time a petition
1788	for benefits seeking disability, permanent impairment, wage
1789	loss, or death benefits, or any other compensation benefit under
1790	this chapter arising out of the same accident. If any attorney’s
1791	fee is owed under this subsection, the judge of compensation
1792	claims may approve an additional attorney’s fee, not to exceed
1793	$1,000 per accident, based on a reasonable hourly rate, if the
1794	judge of compensation claims expressly finds that the attorney’s
1795	fee, based on benefits secured, fails to fairly compensate the
1796	attorney for disputed medical claims only as provided in this
1797	subsection and as the circumstances of the particular case
1798	warrant such action.
1799	(3) In a proceeding in which a carrier or employer denies
1800	that an accident occurred for which compensation benefits are
1801	payable, and the claimant prevails on the issue of
1802	compensability at a final hearing, the carrier or employer shall
1803	be responsible for the claimant’s attorney’s fees based on the
1804	formula set forth in subsection (1).
1805	(4) In awarding a reasonable claimant’s attorney’s fee
1806	under this section, the judge of compensation claims shall
1807	consider only those benefits to the claimant that the attorney
1808	is responsible for securing. The amount, statutory basis, and
1809	type of benefits obtained through legal representation shall be
1810	listed on all attorney’s fees awarded by the judge of
1811	compensation claims. For purposes of this section, the term
1812	“benefits secured” means benefits obtained as a result of the
1813	claimant’s attorney’s legal services rendered in connection with
1814	the petition for benefits. However, such term does not include
1815	future medical benefits to be provided on any date more than 5
1816	years after the date of the petition for benefits is filed.
1817	(5) The judge of compensation claims shall not approve a
1818	compensation order, a joint stipulation for a lump-sum
1819	settlement, a stipulation or agreement between a claimant and
1820	his or her attorney, or any other agreement related to benefits
1821	under this chapter that provides for an attorney’s fee in excess
1822	of the amount permitted by this section.
1823	(6) The employee, the employer, or the carrier shall not
1824	be responsible for attorney’s fees, whether or not a petition
1825	for benefits is filed, for securing payment of a medical bill,
1826	when the claimant has, in fact, received the medical service,
1827	treatment, care, or attendance for which the provider seeks
1828	payment. In such cases, the provider claiming such payment by
1829	way of a petition or otherwise shall be solely responsible for
1830	any attorney’s fees for securing payment for services that have
1831	been provided to the claimant.
1832	(7) Regardless of the date benefits were initially
1833	requested, any right to attorney’s fees to be paid by the
1834	employer or carrier shall not attach under this subsection
1835	unless the basis for such fee exists as of the 30th day after the
1836	date the employer, if self-insured, or the carrier, receives the
1837	petition.
1838	Section 19. Section 440.39, Florida Statutes, is amended
1839	to read:
1840	440.39 Compensation for injuries when third persons are
1841	liable.--
1842	(1) If an employee, subject to the provisions of the
1843	Workers' Compensation Law, is injured or killed in the course of
1844	his or her employment by the negligence or wrongful act of a
1845	third-party tortfeasor, such injured employee or, in the case of
1846	his or her death, the employee's dependents may accept
1847	compensation benefits under the provisions of this law, and at
1848	the same time such injured employee or his or her dependents or
1849	personal representatives may pursue his or her remedy by action
1850	at law or otherwise against such third-party tortfeasor.
1851	(2)(a)If the employee or his or her dependents accept
1852	compensation or other benefits under this law or begin
1853	proceedings therefor, the employer or, in the event the employer
1854	is insured against liability hereunder, the insurer shall be
1855	subrogated to the rights of the employee or his or her
1856	dependents against such third-party tortfeasor, to the extent of
1857	the amount of compensation benefits paid or to be paid as
1858	provided by subsection (3). If the injured employee or his or
1859	her dependents recovers from a third-party tortfeasor by
1860	judgment or settlement, either before or after the filing of
1861	suit, before the employee has accepted compensation or other
1862	benefits under this chapter or before the employee has filed a
1863	written claim for compensation benefits, the amount recovered
1864	from the tortfeasor shall be set off against any compensation
1865	benefits other than for remedial care, treatment and attendance
1866	as well as rehabilitative services payable under this chapter.
1867	The amount of such offset shall be reduced by the amount of all
1868	court costs expended in the prosecution of the third-party suit
1869	or claim, including reasonableattorney’sattorneyfees for the
1870	plaintiff's attorney. In no event shall the setoff provided in
1871	this section in lieu of payment of compensation benefits
1872	diminish the period for filing a claim for benefits as provided
1873	in s. 440.19.
1874	(b) The employer or, in the event the employer is insured
1875	against liability hereunder, its workers' compensation carrier
1876	shall be entitled to subrogate to the rights of the employee on
1877	an employer’s uninsured/underinsured (UI/UIM) motorist coverage
1878	under a commercial automobile policy, to the extent of the
1879	amount of compensation benefits paid or to be paid as provided
1880	by this section.
1881	(3)(a) In all claims or actions at law against a third-
1882	party tortfeasor, the employee, or his or her dependents or
1883	those entitled by law to sue in the event he or she is deceased,
1884	shall sue for the employee individually and for the use and
1885	benefit of the employer, if a self-insurer, or employer's
1886	insurance carrier, in the event compensation benefits are
1887	claimed or paid; and such suit may be brought in the name of the
1888	employee, or his or her dependents or those entitled by law to
1889	sue in the event he or she is deceased, as plaintiff or, at the
1890	option of such plaintiff, may be brought in the name of such
1891	plaintiff and for the use and benefit of the employer or
1892	insurance carrier, as the case may be. Upon suit being filed,
1893	the employer or the insurance carrier, as the case may be, may
1894	file in the suit a notice of payment of compensation and medical
1895	benefits to the employee or his or her dependents, which notice
1896	shall constitute a lien upon any judgment or settlement
1897	recovered to the extent that the court may determine to be their
1898	pro rata share for compensation and medical benefits paid or to
1899	be paid under the provisions of this law, less their pro rata
1900	share of all court costs expended by the plaintiff in the
1901	prosecution of the suit including reasonable attorney's fees for
1902	the plaintiff's attorney. In determining the employer's or
1903	carrier's pro rata share of those costs and attorney's fees, the
1904	employer or carrier shall have deducted from its recovery a
1905	percentage amount equal to the percentage of the judgment or
1906	settlement which is for costs and attorney's fees. Subject to
1907	this deduction, the employer or carrier shall recover from the
1908	judgment or settlement, after costs and attorney's fees incurred
1909	by the employee or dependent in that suit have been deducted,
1910	100 percent of what it has paid and future benefits to be paid,
1911	except, if the employee or dependent can demonstrate to the
1912	court that he or she did not recover the full value of damages
1913	sustained, the employer or carrier shall recover from the
1914	judgment or settlement, after costs and attorney's fees incurred
1915	by the employee or dependent in that suit have been deducted, a
1916	percentage of what it has paid and future benefits to be paid
1917	equal to the percentage that the employee's net recovery is of
1918	the full value of the employee's damages; provided, the failure
1919	by the employer or carrier to comply with the duty to cooperate
1920	imposed by subsection (7) may be taken into account by the trial
1921	court in determining the amount of the employer's or carrier's
1922	recovery, and such recovery may be reduced, as the court deems
1923	equitable and appropriate under the circumstances, including as
1924	a mitigating factor whether a claim or potential claim against a
1925	third party is likely to impose liability upon the party whose
1926	cooperation is sought, if it finds such a failure has occurred.
1927	The burden of proof will be upon the employee. The determination
1928	of the amount of the employer's or carrier's recovery shall be
1929	made by the judge of the trial court upon application therefor
1930	and notice to the adverse party. Notice of suit being filed
1931	shall be served upon the employer and compensation carrier and
1932	upon all parties to the suit or their attorneys of record by the
1933	employee. Notice of payment of compensation benefits shall be
1934	served upon the employee and upon all parties to the suit or
1935	their attorneys of record by the employer and compensation
1936	carrier. However, if a migrant worker prevails under a private
1937	cause of action under the Migrant and Seasonal Agricultural
1938	Worker Protection Act (AWPA) 96 Stat. 2583, as amended, 29
1939	U.S.C. ss. 1801 et seq. (1962 ed. and Supp. V), any recovery by
1940	the migrant worker under this act shall be offset 100 percent
1941	against any recovery under AWPA.
1942	(b) If the employer or insurance carrier has given written
1943	notice of his or her rights of subrogation to the third-party
1944	tortfeasor, and, thereafter, settlement of any such claim or
1945	action at law is made, either before or after suit is filed, and
1946	the parties fail to agree on the proportion to be paid to each,
1947	the circuit court of the county in which the cause of action
1948	arose shall determine the amount to be paid to each by such
1949	third-party tortfeasor in accordance with the provisions of
1950	paragraph (a).
1951	(4)(a) If the injured employee or his or her dependents,
1952	as the case may be, fail to bring suit against such third-party
1953	tortfeasor within 1 year after the cause of action thereof has
1954	accrued, the employer, if a self-insurer, and if not, the
1955	insurance carrier, may, after giving 30 days' notice to the
1956	injured employee or his or her dependents and the injured
1957	employee's attorney, if represented by counsel, institute suit
1958	against such third-party tortfeasor, either in his or her own
1959	name or as provided by subsection (3), and, in the event suit is
1960	so instituted, shall be subrogated to and entitled to retain
1961	from any judgment recovered against, or settlement made with,
1962	such third party, the following: All amounts paid as
1963	compensation and medical benefits under the provisions of this
1964	law and the present value of all future compensation benefits
1965	payable, to be reduced to its present value, and to be retained
1966	as a trust fund from which future payments of compensation are
1967	to be made, together with all court costs, including attorney's
1968	fees expended in the prosecution of such suit, to be prorated as
1969	provided by subsection (3). The remainder of the moneys derived
1970	from such judgment or settlement shall be paid to the employee
1971	or his or her dependents, as the case may be.
1972	(b) If the carrier or employer does not bring suit within
1973	2 years following the accrual of the cause of action against a
1974	third-party tortfeasor, the right of action shall revert to the
1975	employee or, in the case of the employee's death, those entitled
1976	by law to sue, and in such event the provisions of subsection
1977	(3) shall apply.
1978	(5) In all cases under subsection (4) involving third-
1979	party tortfeasors in which compensation benefits under this law
1980	are paid or are to be paid, settlement may not be made either
1981	before or after suit is instituted except upon agreement of the
1982	injured employee or his or her dependents and the employer or
1983	his or her insurance carrier, as the case may be.
1984	(6) Any amounts recovered under this section by the
1985	employer or his or her insurance carrier shall be credited
1986	against the loss experience of such employer.
1987	(7) The employee, employer, and carrier have a duty to
1988	cooperate with each other in investigating and prosecuting
1989	claims and potential claims against third-party tortfeasors by
1990	producing nonprivileged documents and allowing inspection of
1991	premises, but only to the extent necessary for such purpose.
1992	Such documents and the results of such inspections are
1993	confidential and exempt from the provisions of s. 119.07(1), and
1994	shall not be used or disclosed for any other purpose.
1995	(8) This section does not impose on the employer a duty to
1996	preserve evidence pertaining to third-party actions arising out
1997	of the industrial accident unless the injured employee or
1998	claimant has placed the employer on specific written notice
1999	within 60 days after the industrial accident of the injured
2000	employee or claimant’s desire that any item of evidence should
2001	be preserved.
2002	(9) This section does not impose on the carrier a duty to
2003	preserve evidence pertaining to third-party actions arising out
2004	of the industrial accident.
2005	Section 20. Section 440.4415, Florida Statutes, is created
2006	to read:
2007	440.4415 Workers’ Compensation Appeals Commission.–-
2008	(1)(a)1. There is created under the Cabinet a Workers’
2009	Compensation Appeals Commission to consist of a presiding
2010	commissioner and four other commissioners, all to be appointed
2011	by the Governor after October 1, 2003, but before May 15, 2004,
2012	and all to serve full-time. Each commissioner shall be selected
2013	by the Governor from a list of three commissioners nominated by
2014	the judges of each of the five district courts of appeal. The
2015	seats on the commission shall be numbered one through five.
2016	Nominations for the commissioner of seat one shall be made by
2017	the judges of the First District Court of Appeal. Nominations
2018	for the commissioner of seat two shall be made by all the judges
2019	of the Second District Court of Appeal. Nominations for the
2020	commissioner of seat three shall be made by all the judges of
2021	the Third District Court of Appeal. Nominations for the
2022	commissioner of seat four shall be made by all the judges of the
2023	Fourth District Court of Appeal. Nominations for the
2024	commissioner of seat five shall be made by all the judges of the
2025	Fifth District Court of Appeal. The commissioners shall elect a
2026	presiding commissioner from among their number by majority vote.
2027	Each commissioner shall have the qualifications required by law
2028	for judges of the district courts of appeal. In addition to
2029	these qualifications, the commissioners nominated by the judges
2030	from the five district courts of appeal shall be substantially
2031	experienced in the field of workers’ compensation.
2032	2. Each commissioner shall be appointed for a term of 4
2033	years but may be removed for cause by the Governor.
2034	3. Each appeal from an order of a judge of compensation
2035	claims shall be considered by a commission panel which shall
2036	consist of two commissioners and the presiding commissioner.
2037	4. Prior to the expiration of the term of office of a
2038	commissioner, the conduct of such commissioner shall be reviewed
2039	by the statewide nominating commission. A report of the
2040	statewide nominating commission regarding retention shall be
2041	furnished to the Governor no later than 6 months prior to the
2042	expiration of the term of the commissioner. If the statewide
2043	nominating commission recommends retention, the Governor shall
2044	reappoint the commissioner. However, if the statewide nominating
2045	commission does not recommend retention, the judges of the
2046	respective district courts of appeal shall issue a report to the
2047	Governor which shall include a list of three candidates for
2048	appointment. In the event a vacancy occurs during an unexpired
2049	term of a commissioner on the Workers’ Compensation Appeals
2050	Commission, the judges of the respective district courts of
2051	appeal shall nominate at least three candidates in accordance
2052	with the procedures set forth in this section.
2053	5. The commission is subject to the Code of Judicial
2054	Conduct set forth in s. 440.442.
2055	(b) The presiding commissioner may, by order filed in the
2056	records of the commission and with the approval of the Governor,
2057	appoint associate commissioners to serve as temporary
2058	commissioners on the commission. Such appointment may be made
2059	only of a currently commissioned judge of compensation claims.
2060	This appointment shall be for such period of time as not to
2061	cause an undue burden on the caseload in the judge’s
2062	jurisdiction. Each associate commissioner appointed shall
2063	receive no additional pay during the appointment, except for
2064	expenses incurred in the performance of the additional duties.
2065	(c) The total salaries and benefits of all commissioners
2066	on the commission are to be paid from the Workers’ Compensation
2067	Administration Trust Fund established in s. 440.50.
2068	Notwithstanding any other provision of law, the commissioners
2069	shall be paid a salary equal to that paid under state law to the
2070	judges of district courts of appeal.
2071	(2)(a) The commission is vested with all authority,
2072	powers, duties, and responsibilities relating to review of
2073	orders of judges of compensation claims in workers’ compensation
2074	proceedings under this chapter. The commission shall review by
2075	appeal final orders of the judges of compensation claims entered
2076	pursuant to this chapter. The First District Court of Appeal
2077	shall retain jurisdiction over all workers’ compensation
2078	proceedings pending before it on October 1, 2003. The commission
2079	may hold sessions and conduct hearings at any place within the
2080	state. A panel of three commissioners shall consider each case
2081	and the concurrence of two shall be necessary for a decision.
2082	Any commissioner may request an en banc hearing for review of a
2083	final order of a judge of compensation claims.
2084	(b) The commission shall be located within the State Board
2085	of Administration but, in the performance of its powers and
2086	duties under this chapter, shall not be subject to control,
2087	supervision, or direction by the state board. The commission is
2088	not an agency for purposes of chapter 120.
2089	(c) The property, personnel, and appropriations related to
2090	the commission’s specified authority, powers, duties, and
2091	responsibilities shall be provided to the commission by the
2092	Department of Labor and Employment Security.
2093	(3) The commission shall make such expenditures, including
2094	expenditures for personnel services and rent at the seat of the
2095	government and elsewhere, law books, reference materials,
2096	periodicals, furniture, equipment, and supplies, and for
2097	printing and binding, as may be necessary in exercising its
2098	authority and powers and in carrying out its duties and
2099	responsibilities. Expenditures of the commission shall be
2100	allowed and paid from the Workers' Compensation Administration
2101	Trust Fund, upon the presentation of itemized vouchers therefor
2102	approved by the presiding commissioner.
2103	(4) The commission may charge, in its discretion, for
2104	publications, subscriptions, and copies of records and
2105	documents. Such fees shall be deposited in the Workers'
2106	Compensation Administration Trust Fund.
2107	(5)(a) The presiding commissioner shall exercise
2108	administrative supervision over the Workers’ Compensation
2109	Appeals Commission and shall have the power to:
2110	1. Assign commissioners to hear appeals from final orders
2111	of judges of compensation claims.
2112	2. Hire and assign clerks and staff.
2113	3. Regulate the use of courtrooms.
2114	4. Supervise dockets and calendars.
2115	5. Do everything necessary to promote the prompt and
2116	efficient administration of justice in the courts over which he
2117	or she presides.
2118	(b) The presiding commissioner may appoint an executive
2119	assistant to perform such duties as the presiding commissioner
2120	may direct. The commission shall be authorized to employ
2121	research assistants or law clerks to assist the commissioners in
2122	performing their duties under this section.
2123	(6)(a) The commission shall maintain and keep open during
2124	reasonable business hours a clerk’s office, provided in the
2125	Capitol Complex or some other suitable building in Leon County,
2126	for the transaction of its business. All books, papers, records,
2127	files, and the seal of the commission shall be kept at this
2128	office. The office shall be furnished and equipped by the
2129	commission.
2130	(b) The commission shall appoint a clerk who shall hold
2131	office at the pleasure of the commission. Before entering upon
2132	discharge of his or her duties, the clerk shall give bond in the
2133	sum of $5,000, payable to the Governor, to be approved by a
2134	majority of the members of the commission conditioned upon the
2135	faithful discharge of the duties of the office, which bond shall
2136	be filed in the office of the Secretary of State.
2137	(c) The clerk shall be paid an annual salary pursuant to
2138	chapter 25.
2139	(d) The clerk is authorized to employ such deputies and
2140	clerical assistants as may be necessary. Their number and
2141	compensation shall be approved by the commission and paid from
2142	the annual appropriation for the commission from the Workers’
2143	Compensation Administration Trust Fund.
2144	(e) The clerk, upon filing of a certified copy of a notice
2145	of appeal or petition, shall charge and collect a filing fee of
2146	$250 for each case docketed and shall charge and collect for
2147	copying, certifying, or furnishing opinions, records, papers, or
2148	other instruments and for other services the same service
2149	charges as provided for in s. 28.24. The state or an agency
2150	thereof, when appearing as appellant or petitioner, is exempt
2151	from the filing fee required in this paragraph.
2152	(f) The clerk of the commission shall prepare a statement
2153	of all fees collected in duplicate each month and remit one copy
2154	of said statement, together with all fees collected by the
2155	clerk, to the Chief Financial Officer, who shall place the same
2156	to the credit of the Workers’ Compensation Administration Trust
2157	Fund.
2158	(7) The commission shall have a seal for authentication of
2159	its orders, awards, and proceedings, upon which shall be
2160	inscribed the words “State of Florida Workers’ Compensation
2161	Appeals Commission–Seal,” and it shall be judicially noticed.
2162	(8) The commission is expressly authorized to destroy
2163	obsolete records of the commission.
2164	(9) Commissioners shall be reimbursed for travel expenses
2165	as provided in s. 112.061.
2166	(10) The practice and procedure before the commission and
2167	judges of compensation claims shall be governed by rules adopted
2168	by the commission pursuant to ss. 120.536(1) and 120.54, except
2169	to the extent that such rules conflict with the provisions of
2170	this chapter.
2171	Section 21. Paragraph (c) of subsection (2) and subsection
2172	(3) of section 440.45, Florida Statutes, are amended, and
2173	present subsections (4) and (5) of said section are renumbered
2174	as subsections (3) and (4), respectively, to read:
2175	440.45 Office of the Judges of Compensation Claims.--
2176	(2)
2177	(c) Each judge of compensation claims shall be appointed
2178	for a term of 4 years, but during the term of office may be
2179	removed by the Governor for cause. Prior to the expiration of a
2180	judge's term of office, the statewide nominating commission
2181	shall review the judge's conduct and determine whether the
2182	judge's performance is satisfactory. Effective July 1, 2002, in
2183	determining whether a judge's performance is satisfactory, the
2184	commission shall consider the extent to which the judge has met
2185	the requirements of this chapter, including, but not limited to,
2186	the requirements of ss. 440.25(1) and (4)(a)-(f),440.315
2187	440.34(2), and 440.442. If the judge's performance is deemed
2188	satisfactory, the commission shall report its finding to the
2189	Governor no later than 6 months prior to the expiration of the
2190	judge's term of office. The Governor shall review the
2191	commission's report and may reappoint the judge for an
2192	additional 4-year term. If the Governor does not reappoint the
2193	judge, the Governor shall inform the commission. The judge shall
2194	remain in office until the Governor has appointed a successor
2195	judge in accordance with paragraphs (a) and (b). If a vacancy
2196	occurs during a judge's unexpired term, the statewide nominating
2197	commission does not find the judge's performance is
2198	satisfactory, or the Governor does not reappoint the judge, the
2199	Governor shall appoint a successor judge for a term of 4 years
2200	in accordance with paragraph (b).
2201	(3) The Deputy Chief Judge shall establish training and
2202	continuing education for new and sitting judges.
2203	Section 22. Paragraph (b) of subsection (13) and
2204	subsection (14) of section 440.51, Florida Statutes, are amended
2205	to read:
2206	440.51 Expenses of administration.--
2207	(13) As used in s. 440.50 and this section, the term:
2208	(b) "Fixed administrative expenses" means the expenses of
2209	the plan, not to exceed$1,500,000$750,000, which are directly
2210	related to the plan's administration but which do not vary in
2211	direct relationship to the amount of premium written by the plan
2212	and which do not include loss adjustment premiums.
2213	(14) Before July 1 in each year, the plan shall notify the
2214	department of the amount of the plan's gross written premiums
2215	for the preceding calendar year. Whenever the plan's gross
2216	written premiums reported to the department are less than $30
2217	million, the department shall transfer to the plan, subject to
2218	appropriation by the Legislature,an amount not to exceed the
2219	plan's fixed administrative expenses for the preceding calendar
2220	year.
2221	Section 23.Section 440.34, Florida Statutes, is repealed.
2222	Section 24.If any provision of this act or its
2223	application to any person or circumstance is held invalid, the
2224	invalidity shall not affect other provisions or applications of
2225	the act which can be given effect without the invalid provision
2226	or application, and to this end the provisions of this act are
2227	declared severable.
2228	Section 25. This act shall take effect upon becoming a
2229	law.
2230