Florida Senate - 2016                              CS for SB 986
       By the Committee on Banking and Insurance; and Senator Simpson
       597-02874-16                                           2016986c1
    1                        A bill to be entitled                      
    2         An act relating to workers’ compensation system
    3         administration; amending s. 440.05, F.S.; deleting a
    4         required item to be listed on a notice of election to
    5         be exempt; revising specified rules regarding the
    6         maintenance of business records by an officer of a
    7         corporation; removing the requirement that the
    8         Department of Financial Services issue a specified
    9         stop-work order; amending s. 440.107, F.S.; requiring
   10         that the department allow an employer who has not
   11         previously been issued an order of penalty assessment
   12         to receive a specified credit to be applied to the
   13         penalty; prohibiting the application of a specified
   14         credit unless the employer provides specified
   15         documentation and proof of payment to the department
   16         within a specified period; requiring the department to
   17         reduce the final assessed penalty by a specified
   18         percentage for employers who have not been previously
   19         issued a stop-work order or order of penalty
   20         assessment; revising the penalty calculation for the
   21         imputed weekly payroll for an employee; amending s.
   22         440.13, F.S.; eliminating the certification
   23         requirements when an expert medical advisor is
   24         selected by a judge of compensation claims; providing
   25         requirements for the selection of an expert medical
   26         advisor; amending s. 440.185, F.S.; deleting the
   27         requirement that employers notify the department
   28         within 24 hours of any injury resulting in death;
   29         amending s. 440.49, F.S.; revising definitions;
   30         revising the requirements for filing a claim; deleting
   31         the preferred worker program; deleting the
   32         notification fees on certain filed claims which
   33         supplement the Special Disability Trust Fund;
   34         conforming cross-references; amending s. 440.52, F.S.;
   35         deleting a fee for certain registration of insurance
   36         carriers; amending ss. 440.021, 440.42, 440.50, and
   37         624.4626, F.S.; conforming cross-references; providing
   38         an effective date.
   40  Be It Enacted by the Legislature of the State of Florida:
   42         Section 1. Subsections (1), (2), (3), (5), (10), and (11)
   43  of section 440.05, Florida Statutes, are amended to read:
   44         440.05 Election of exemption; revocation of election;
   45  notice; certification.—
   46         (1) Each corporate officer who elects not to accept the
   47  provisions of this chapter or who, after electing such
   48  exemption, revokes that exemption shall submit mail to the
   49  department in Tallahassee notice to such effect in accordance
   50  with a form to be prescribed by the department.
   51         (2) Each sole proprietor or partner who elects to be
   52  included in the definition of “employee” or who, after such
   53  election, revokes that election must submit mail to the
   54  department in Tallahassee notice to such effect, in accordance
   55  with a form to be prescribed by the department.
   56         (3) Each officer of a corporation who is engaged in the
   57  construction industry and who elects an exemption from this
   58  chapter or who, after electing such exemption, revokes that
   59  exemption must submit a notice to such effect to the department
   60  on a form prescribed by the department. The notice of election
   61  to be exempt must be electronically submitted to the department
   62  by the officer of a corporation who is allowed to claim an
   63  exemption as provided by this chapter and must list the name,
   64  federal tax identification number, date of birth, driver license
   65  number or Florida identification card number, and all certified
   66  or registered licenses issued pursuant to chapter 489 held by
   67  the person seeking the exemption, the registration number of the
   68  corporation filed with the Division of Corporations of the
   69  Department of State, and the percentage of ownership evidencing
   70  the required ownership under this chapter. The notice of
   71  election to be exempt must identify each corporation that
   72  employs the person electing the exemption and must list the
   73  social security number or federal tax identification number of
   74  each such employer and the additional documentation required by
   75  this section. In addition, the notice of election to be exempt
   76  must provide that the officer electing an exemption is not
   77  entitled to benefits under this chapter, must provide that the
   78  election does not exceed exemption limits for officers provided
   79  in s. 440.02, and must certify that any employees of the
   80  corporation whose officer elects an exemption are covered by
   81  workers’ compensation insurance. Upon receipt of the notice of
   82  the election to be exempt, receipt of all application fees, and
   83  a determination by the department that the notice meets the
   84  requirements of this subsection, the department shall issue a
   85  certification of the election to the officer, unless the
   86  department determines that the information contained in the
   87  notice is invalid. The department shall revoke a certificate of
   88  election to be exempt from coverage upon a determination by the
   89  department that the person does not meet the requirements for
   90  exemption or that the information contained in the notice of
   91  election to be exempt is invalid. The certificate of election
   92  must list the name of the corporation listed in the request for
   93  exemption. A new certificate of election must be obtained each
   94  time the person is employed by a new or different corporation
   95  that is not listed on the certificate of election. A notice copy
   96  of the certificate of election must be sent to each workers’
   97  compensation carrier identified in the request for exemption.
   98  Upon filing a notice of revocation of election, an officer who
   99  is a subcontractor or an officer of a corporate subcontractor
  100  must notify her or his contractor. Upon revocation of a
  101  certificate of election of exemption by the department, the
  102  department shall notify the workers’ compensation carriers
  103  identified in the request for exemption.
  104         (5) A notice given under subsection (1), subsection (2), or
  105  subsection (3) shall become effective when issued by the
  106  department or 30 days after it an application for an exemption
  107  is received by the department, whichever occurs first. However,
  108  if an accident or occupational disease occurs less than 30 days
  109  after the effective date of the insurance policy under which the
  110  payment of compensation is secured or the date the employer
  111  qualified as a self-insurer, such notice is effective as of
  112  12:01 a.m. of the day following the date it is submitted mailed
  113  to the department in Tallahassee.
  114         (10) Each officer of a corporation who is actively engaged
  115  in the construction industry and who elects an exemption from
  116  this chapter shall maintain business records as specified by the
  117  department by rule, which rules must include the provision that
  118  any corporation with exempt officers engaged in the construction
  119  industry must maintain written statements of those exempted
  120  persons affirmatively acknowledging each such individual’s
  121  exempt status.
  122         (11) Any corporate officer permitted by this chapter to
  123  claim an exemption must be listed on the records of this state’s
  124  Secretary of State, Division of Corporations, as a corporate
  125  officer. The department shall issue a stop-work order under s.
  126  440.107(7) to any corporation who employs a person who claims to
  127  be exempt as a corporate officer but who fails or refuses to
  128  produce the documents required under this subsection to the
  129  department within 3 business days after the request is made.
  130         Section 2. Paragraphs (d) and (e) of subsection (7) of
  131  section 440.107, Florida Statutes, are amended to read:
  132         440.107 Department powers to enforce employer compliance
  133  with coverage requirements.—
  134         (7)
  135         (d)1. In addition to any penalty, stop-work order, or
  136  injunction, the department shall assess against any employer who
  137  has failed to secure the payment of compensation as required by
  138  this chapter a penalty equal to 2 times the amount the employer
  139  would have paid in premium when applying approved manual rates
  140  to the employer’s payroll during periods for which it failed to
  141  secure the payment of workers’ compensation required by this
  142  chapter within the preceding 2-year period or $1,000, whichever
  143  is greater.
  144         a. For employers who have not been previously issued a
  145  stop-work order or order of penalty assessment, the department
  146  must allow the employer to receive a credit for the initial
  147  payment of the estimated annual workers’ compensation policy
  148  premium, as determined by the carrier, to be applied to the
  149  penalty. Before applying the credit to the penalty, the employer
  150  must provide the department with documentation reflecting that
  151  the employer has secured the payment of compensation pursuant to
  152  s. 440.38 and proof of payment to the carrier. In order for the
  153  department to apply a credit for an employer that has secured
  154  workers’ compensation for leased employees by entering into an
  155  employee leasing contract with a licensed employee leasing
  156  company, the employer must provide the department with a written
  157  confirmation, by a representative from the employee leasing
  158  company, of the dollar or percentage amount attributable to the
  159  initial estimated workers’ compensation expense for leased
  160  employees, and proof of payment to the employee leasing company.
  161  The credit may not be applied unless the employer provides the
  162  documentation and proof of payment to the department within 28
  163  days after service of the stop-work order or first order of
  164  penalty assessment upon the employer.
  165         b. For employers who have not been previously issued a
  166  stop-work order or order of penalty assessment, the department
  167  must reduce the final assessed penalty by 25 percent if the
  168  employer has complied with administrative rules adopted pursuant
  169  to subsection (5) and has provided such business records to the
  170  department within 10 business days after the employer’s receipt
  171  of the written request to produce business records.
  172         c. The $1,000 penalty shall be assessed against the
  173  employer even if the calculated penalty after the credit and 25
  174  percent reduction have has been applied is less than $1,000.
  175         2. Any subsequent violation within 5 years after the most
  176  recent violation shall, in addition to the penalties set forth
  177  in this subsection, be deemed a knowing act within the meaning
  178  of s. 440.105.
  179         (e) When an employer fails to provide business records
  180  sufficient to enable the department to determine the employer’s
  181  payroll for the period requested for the calculation of the
  182  penalty provided in paragraph (d), for penalty calculation
  183  purposes, the imputed weekly payroll for each employee,
  184  corporate officer, sole proprietor, or partner shall be the
  185  statewide average weekly wage as defined in s. 440.12(2)
  186  multiplied by 1.5 2.
  187         Section 3. Paragraph (a) of subsection (7) and paragraphs
  188  (a), (c), and (f) of subsection (9) of section 440.13, Florida
  189  Statutes, are amended to read:
  190         440.13 Medical services and supplies; penalty for
  191  violations; limitations.—
  193         (a) Any health care provider, carrier, or employer who
  194  elects to contest the disallowance or adjustment of payment by a
  195  carrier under subsection (6) must, within 45 days after receipt
  196  of notice of disallowance or adjustment of payment, petition the
  197  department to resolve the dispute. The petitioner must serve a
  198  copy of the petition on the carrier and on all affected parties
  199  by certified mail. The petition must be accompanied by all
  200  documents and records that support the allegations contained in
  201  the petition. Failure of a petitioner to submit such
  202  documentation to the department results in dismissal of the
  203  petition.
  204         (9) EXPERT MEDICAL ADVISORS.—
  205         (a) The department shall certify expert medical advisors in
  206  each specialty to assist the department and the judges of
  207  compensation claims within the advisor’s area of expertise as
  208  provided in this section. The department shall, in a manner
  209  prescribed by rule, in certifying, recertifying, or decertifying
  210  an expert medical advisor, consider the qualifications,
  211  training, impartiality, and commitment of the health care
  212  provider to the provision of quality medical care at a
  213  reasonable cost. As a prerequisite for certification or
  214  recertification, the department shall require, at a minimum,
  215  that an expert medical advisor have specialized workers’
  216  compensation training or experience under the workers’
  217  compensation system of this state and board certification or
  218  board eligibility.
  219         (c) If there is disagreement in the opinions of the health
  220  care providers, if two health care providers disagree on medical
  221  evidence supporting the employee’s complaints or the need for
  222  additional medical treatment, or if two health care providers
  223  disagree that the employee is able to return to work, the
  224  department may, and the judge of compensation claims shall, upon
  225  his or her own motion or within 15 days after receipt of a
  226  written request by either the injured employee, the employer, or
  227  the carrier, order the injured employee to be evaluated by an
  228  expert medical advisor. The injured employee and the employer or
  229  carrier may agree on the health care provider to serve as an
  230  expert medical advisor. If the parties do not agree, the judge
  231  of compensation claims shall select an expert medical advisor
  232  from the department’s list of certified expert medical advisors.
  233  If a certified medical advisor within the relevant medical
  234  specialty is unavailable, the judge of compensation claims shall
  235  appoint any otherwise qualified health care provider to serve as
  236  an expert medical advisor without obtaining the department’s
  237  certification. The opinion of the expert medical advisor is
  238  presumed to be correct unless there is clear and convincing
  239  evidence to the contrary as determined by the judge of
  240  compensation claims. The expert medical advisor appointed to
  241  conduct the evaluation shall have free and complete access to
  242  the medical records of the employee. An employee who fails to
  243  report to and cooperate with such evaluation forfeits
  244  entitlement to compensation during the period of failure to
  245  report or cooperate.
  246         (f) If the department or a judge of compensation claims
  247  orders the services of an a certified expert medical advisor to
  248  resolve a dispute under this section, the party requesting such
  249  examination must compensate the advisor for his or her time in
  250  accordance with a schedule adopted by the department. If the
  251  employee prevails in a dispute as determined in an order by a
  252  judge of compensation claims based upon the expert medical
  253  advisor’s findings, the employer or carrier shall pay for the
  254  costs of such expert medical advisor. If a judge of compensation
  255  claims, upon his or her motion, finds that an expert medical
  256  advisor is needed to resolve the dispute, the carrier must
  257  compensate the advisor for his or her time in accordance with a
  258  schedule adopted by the department. The department may assess a
  259  penalty not to exceed $500 against any carrier that fails to
  260  timely compensate an advisor in accordance with this section.
  261         Section 4. Subsection (3) of section 440.185, Florida
  262  Statutes, is amended to read:
  263         440.185 Notice of injury or death; reports; penalties for
  264  violations.—
  265         (3) In addition to the requirements of subsection (2), the
  266  employer shall notify the department within 24 hours by
  267  telephone or telegraph of any injury resulting in death.
  268  However, this special notice shall not be required when death
  269  results subsequent to the submission to the department of a
  270  previous report of the injury pursuant to subsection (2).
  271         Section 5. Paragraph (b) of subsection (2), paragraph (c)
  272  of subsection (4), paragraph (c) of subsection (6), paragraphs
  273  (c) and (d) of subsection (7), subsection (8), and paragraph (d)
  274  of subsection (9) of section 440.49, Florida Statutes, are
  275  amended to read:
  276         440.49 Limitation of liability for subsequent injury
  277  through Special Disability Trust Fund.—
  278         (2) DEFINITIONS.—As used in this section, the term:
  279         (b) “Preferred worker” means a worker who, because of a
  280  permanent impairment resulting from a compensable injury or
  281  occupational disease, is unable to return to the worker’s
  282  regular employment.
  284  In addition to the definitions contained in this subsection, the
  285  department may by rule prescribe definitions that are necessary
  286  for the effective administration of this section.
  290         (c) Temporary compensation and medical benefits;
  291  aggravation or acceleration of preexisting condition or
  292  circumstantial causation.—If an employee who has a preexisting
  293  permanent physical impairment experiences an aggravation or
  294  acceleration of the preexisting permanent physical impairment as
  295  a result of an injury or occupational disease arising out of and
  296  in the course of her or his employment, or suffers an injury as
  297  a result of a merger as defined in paragraph (2)(b) (2)(c), the
  298  employer shall provide all benefits provided by this chapter,
  299  but, subject to the limitations specified in subsection (7), the
  300  employer shall be reimbursed by the Special Disability Trust
  301  Fund created by subsection (9) for 50 percent of its payments
  302  for temporary, medical, and attendant care benefits.
  304         (c) An employer’s or carrier’s right to apportionment or
  305  deduction pursuant to ss. 440.02(1), 440.15(5)(b), and
  306  440.151(1)(c) does not preclude reimbursement from such fund,
  307  except when the merger comes within the definition of paragraph
  308  (2)(b) (2)(c) and such apportionment or deduction relieves the
  309  employer or carrier from providing the materially and
  310  substantially greater permanent disability benefits otherwise
  311  contemplated in those paragraphs.
  313         (c) A proof of claim must be filed on each notice of claim
  314  on file as of June 30, 1997, within 1 year after July 1, 1997,
  315  or the right to reimbursement of the claim shall be barred. A
  316  notice of claim on file on or before June 30, 1997, may be
  317  withdrawn and refiled if, at the time refiled, the notice of
  318  claim remains within the limitation period specified in
  319  paragraph (a). Such refiling shall not toll, extend, or
  320  otherwise alter in any way the limitation period applicable to
  321  the withdrawn and subsequently refiled notice of claim. Each
  322  proof of claim filed shall be accompanied by a proof-of-claim
  323  fee as provided in paragraph (9)(d). The Special Disability
  324  Trust Fund shall, within 120 days after receipt of the proof of
  325  claim, serve notice of the acceptance of the claim for
  326  reimbursement. This paragraph shall apply to all claims
  327  notwithstanding the provisions of subsection (12).
  328         (d) Each notice of claim filed or refiled on or after July
  329  1, 1997, must be accompanied by a notification fee as provided
  330  in paragraph (9)(d). A proof of claim must be filed within 1
  331  year after the date the notice of claim is filed or refiled,
  332  accompanied by a proof-of-claim fee as provided in paragraph
  333  (9)(d), or the claim shall be barred. The notification fee shall
  334  be waived if both the notice of claim and proof of claim are
  335  submitted together as a single filing. The Special Disability
  336  Trust Fund shall, within 180 days after receipt of the proof of
  337  claim, serve notice of the acceptance of the claim for
  338  reimbursement. This paragraph shall apply to all claims
  339  notwithstanding the provisions of subsection (12).
  340         (8) PREFERRED WORKER PROGRAM.—The Department of Education
  341  or administrator shall issue identity cards to preferred workers
  342  upon request by qualified employees and the Department of
  343  Financial Services shall reimburse an employer, from the Special
  344  Disability Trust Fund, for the cost of workers’ compensation
  345  premium related to the preferred workers payroll for up to 3
  346  years of continuous employment upon satisfactory evidence of
  347  placement and issuance of payroll and classification records and
  348  upon the employee’s certification of employment. The Department
  349  of Financial Services and the Department of Education may by
  350  rule prescribe definitions, forms, and procedures for the
  351  administration of the preferred worker program. The Department
  352  of Education may by rule prescribe the schedule for submission
  353  of forms for participation in the program.
  354         (8)(9) SPECIAL DISABILITY TRUST FUND.—
  355         (d) The Special Disability Trust Fund shall be supplemented
  356  by a $250 notification fee on each notice of claim filed or
  357  refiled after July 1, 1997, and a $500 fee on each proof of
  358  claim filed in accordance with subsection (7). Revenues from the
  359  fee shall be deposited into the Special Disability Trust Fund
  360  and are exempt from the deduction required by s. 215.20. The
  361  fees provided in this paragraph shall not be imposed upon any
  362  insurer which is in receivership with the department.
  363         Section 6. Subsection (1) of section 440.52, Florida
  364  Statutes, is amended to read:
  365         440.52 Registration of insurance carriers; notice of
  366  cancellation or expiration of policy; suspension or revocation
  367  of authority.—
  368         (1) Each insurance carrier who desires to write workers’
  369  such compensation insurance in compliance with this chapter
  370  shall be required, before writing such insurance, to register
  371  with the department and pay a registration fee of $100. This
  372  shall be deposited by the department in the fund created by s.
  373  440.50.
  374         Section 7. Section 440.021, Florida Statutes, is amended to
  375  read:
  376         440.021 Exemption of workers’ compensation from chapter
  377  120.—Workers’ compensation adjudications by judges of
  378  compensation claims are exempt from chapter 120, and no judge of
  379  compensation claims shall be considered an agency or a part
  380  thereof. Communications of the result of investigations by the
  381  department pursuant to s. 440.185(3) s. 440.185(4) are exempt
  382  from chapter 120. In all instances in which the department
  383  institutes action to collect a penalty or interest which may be
  384  due pursuant to this chapter, the penalty or interest shall be
  385  assessed without hearing, and the party against which such
  386  penalty or interest is assessed shall be given written notice of
  387  such assessment and shall have the right to protest within 20
  388  days of such notice. Upon receipt of a timely notice of protest
  389  and after such investigation as may be necessary, the department
  390  shall, if it agrees with such protest, notify the protesting
  391  party that the assessment has been revoked. If the department
  392  does not agree with the protest, it shall refer the matter to
  393  the judge of compensation claims for determination pursuant to
  394  s. 440.25(2)-(5). Such action of the department is exempt from
  395  the provisions of chapter 120.
  396         Section 8. Subsection (3) of section 440.42, Florida
  397  Statutes, is amended to read:
  398         440.42 Insurance policies; liability.—
  399         (3) No contract or policy of insurance issued by a carrier
  400  under this chapter shall expire or be canceled until at least 30
  401  days have elapsed after a notice of cancellation has been sent
  402  to the department and to the employer in accordance with the
  403  provisions of s. 440.185(6) s. 440.185(7). For cancellation due
  404  to nonpayment of premium, the insurer shall mail notification to
  405  the employer at least 10 days prior to the effective date of the
  406  cancellation. However, when duplicate or dual coverage exists by
  407  reason of two different carriers having issued policies of
  408  insurance to the same employer securing the same liability, it
  409  shall be presumed that only that policy with the later effective
  410  date shall be in force and that the earlier policy terminated
  411  upon the effective date of the latter. In the event that both
  412  policies carry the same effective date, one of the policies may
  413  be canceled instanter upon filing a notice of cancellation with
  414  the department and serving a copy thereof upon the employer in
  415  such manner as the department prescribes by rule. The department
  416  may by rule prescribe the content of the notice of retroactive
  417  cancellation and specify the time, place, and manner in which
  418  the notice of cancellation is to be served.
  419         Section 9. Paragraph (b) of subsection (1) of section
  420  440.50, Florida Statutes, is amended to read:
  421         440.50 Workers’ Compensation Administration Trust Fund.—
  422         (1)
  423         (b) The department is authorized to transfer as a loan an
  424  amount not in excess of $250,000 from such special fund to the
  425  Special Disability Trust Fund established by s. 440.49(8) s.
  426  440.49(9), which amount shall be repaid to the said special fund
  427  in annual payments equal to not less than 10 percent of moneys
  428  received for the such Special Disability Trust Fund.
  429         Section 10. Subsection (2) of section 624.4626, Florida
  430  Statutes, is amended to read:
  431         624.4626 Electric cooperative self-insurance fund.—
  432         (2) A self-insurance fund that meets the requirements of
  433  this section is subject to the assessments set forth in ss.
  434  440.49(8) ss. 440.49(9), 440.51(1), and 624.4621(7), but is not
  435  subject to any other provision of s. 624.4621 and is not
  436  required to file any report with the department under s.
  437  440.38(2)(b) which is uniquely required of group self-insurer
  438  funds qualified under s. 624.4621.
  439         Section 11. This act shall take effect October 1, 2016.