Florida Senate - 2021                                    SB 1724
       
       
        
       By Senator Perry
       
       
       
       
       
       8-01659B-21                                           20211724__
    1                        A bill to be entitled                      
    2         An act relating to workers’ compensation; amending s.
    3         440.02, F.S.; including the terms “specific” and
    4         “specifically” as defined terms along with the term
    5         “specificity” and revising the associated definition;
    6         amending s. 440.11, F.S.; deleting an exception from
    7         applicability of fellow-employee immunities; creating
    8         s. 440.1915, F.S.; requiring injured employees and
    9         other claimants to sign and attest to a specified
   10         statement relating to the payment of attorney fees
   11         before engaging an attorney or any other
   12         representative for certain purposes; prohibiting such
   13         injured employees or claimants from proceeding with a
   14         petition for benefits, except pro se, until the
   15         signature is obtained; amending s. 440.192, F.S.;
   16         revising conditions under which a petition for
   17         benefits or a portion thereof must be dismissed by the
   18         Office of the Judges of Compensation Claims or the
   19         assigned judge of compensation claims; revising the
   20         information required in such petitions; providing
   21         construction; requiring claimants and their attorneys
   22         to make a good faith effort to resolve the dispute
   23         before filing a petition; requiring that petitions
   24         include evidence demonstrating such good faith effort;
   25         authorizing judges of compensation claims to determine
   26         if such effort was made; requiring the judge of
   27         compensation claims to dismiss the petition, and
   28         authorizing the judge to impose sanctions, including
   29         attorney fees, if he or she finds such effort was not
   30         made; providing that certain dismissals are without
   31         prejudice; specifying timeframes within which a judge
   32         of compensation claims must enter an order on certain
   33         motions to dismiss; revising conditions under which
   34         judges of compensation claims are prohibited from
   35         awarding attorney fees; amending s. 440.25, F.S.;
   36         requiring that the pretrial outline under a certain
   37         expedited dispute resolution process contain a
   38         specified personal attestation by the claimant’s
   39         attorney relating to hours to date; revising the
   40         timeframe and conditions under which attorney fees
   41         attach to certain proceedings; providing an effective
   42         date.
   43          
   44  Be It Enacted by the Legislature of the State of Florida:
   45  
   46         Section 1. Subsection (40) of section 440.02, Florida
   47  Statutes, is amended to read:
   48         440.02 Definitions.—When used in this chapter, unless the
   49  context clearly requires otherwise, the following terms shall
   50  have the following meanings:
   51         (40) “Specific,” “specifically,” or “specificity” means,
   52  for purposes of determining the adequacy of a petition for
   53  benefits under s. 440.192, that information on the petition is
   54  for benefits sufficient to put the employer or carrier on notice
   55  of the exact statutory classification and outstanding time
   56  period for each requested benefit, the specific amount of each
   57  requested benefit, the calculation used for computing the
   58  specific amount of each requested benefit, and of benefits being
   59  requested and includes a detailed explanation of any such
   60  benefit benefits received that should be increased, decreased,
   61  changed, or otherwise modified. If the petition is for medical
   62  benefits, the information must shall include specific details as
   63  to why such benefits are being requested, including details
   64  demonstrating that such benefits have specifically been denied
   65  by the adjuster responsible for determining whether benefits are
   66  payable to the claimant; why such benefits are medically
   67  necessary;, and why current treatment, if any, is not
   68  sufficient. Any petition requesting alternate or other medical
   69  care, including, but not limited to, petitions requesting
   70  psychiatric or psychological treatment, must specifically
   71  identify the physician, as defined in s. 440.13(1), who is
   72  recommending such treatment. A copy of a report from such
   73  physician making the recommendation for alternate or other
   74  medical care must shall also be attached to the petition and
   75  must include specific allegations and statements of fact
   76  rebutting the specific denial by the adjuster handling payment
   77  of benefits to the injured employee. A judge of compensation
   78  claims may shall not order such treatment if a physician is not
   79  recommending such treatment.
   80         Section 2. Subsection (1) of section 440.11, Florida
   81  Statutes, is amended to read:
   82         440.11 Exclusiveness of liability.—
   83         (1) The liability of an employer prescribed in s. 440.10 is
   84  shall be exclusive and in place of all other liability,
   85  including vicarious liability, of such employer to any third
   86  party tortfeasor and to the employee, the employee’s legal
   87  representative thereof, husband or wife, parents, dependents,
   88  next of kin, and anyone otherwise entitled to recover damages
   89  from such employer at law or in admiralty on account of such
   90  injury or death, except as follows:
   91         (a) If an employer fails to secure payment of compensation
   92  as required by this chapter, an injured employee, or the
   93  employee’s legal representative thereof in case death results
   94  from the injury, may elect to claim compensation under this
   95  chapter or to maintain an action at law or in admiralty for
   96  damages on account of such injury or death. In such action the
   97  defendant may not plead as a defense that the injury was caused
   98  by negligence of a fellow employee, that the employee assumed
   99  the risk of the employment, or that the injury was due to the
  100  comparative negligence of the employee.
  101         (b) When an employer commits an intentional tort that
  102  causes the injury or death of the employee. For purposes of this
  103  paragraph, an employer’s actions are shall be deemed to
  104  constitute an intentional tort and not an accident only when the
  105  employee proves, by clear and convincing evidence, that:
  106         1. The employer deliberately intended to injure the
  107  employee; or
  108         2. The employer engaged in conduct that the employer knew,
  109  based on prior similar accidents or on explicit warnings
  110  specifically identifying a known danger, was virtually certain
  111  to result in injury or death to the employee, and the employee
  112  was not aware of the risk because the danger was not apparent
  113  and the employer deliberately concealed or misrepresented the
  114  danger so as to prevent the employee from exercising informed
  115  judgment about whether to perform the work.
  116  
  117  The same immunities from liability enjoyed by an employer shall
  118  extend as well to each employee of the employer when such
  119  employee is acting in furtherance of the employer’s business and
  120  the injured employee is entitled to receive benefits under this
  121  chapter. Such fellow-employee immunities do not apply shall not
  122  be applicable to an employee who acts, with respect to a fellow
  123  employee, with willful and wanton disregard or unprovoked
  124  physical aggression or with gross negligence when such acts
  125  result in injury or death or such acts proximately cause such
  126  injury or death, nor shall such immunities be applicable to
  127  employees of the same employer when each is operating in the
  128  furtherance of the employer’s business but they are assigned
  129  primarily to unrelated works within private or public
  130  employment. The same immunity provisions enjoyed by an employer
  131  shall also apply to any sole proprietor, partner, corporate
  132  officer or director, supervisor, or other person who in the
  133  course and scope of his or her duties acts in a managerial or
  134  policymaking capacity and the conduct that which caused the
  135  alleged injury arose within the course and scope of said
  136  managerial or policymaking duties and was not a violation of a
  137  law, whether or not a violation was charged, for which the
  138  maximum penalty that which may be imposed does not exceed 60
  139  days’ imprisonment as provided set forth in s. 775.082. The
  140  immunity from liability provided in this subsection extends to
  141  county governments with respect to employees of county
  142  constitutional officers whose offices are funded by the board of
  143  county commissioners.
  144         Section 3. Section 440.1915, Florida Statutes, is created
  145  to read:
  146         440.1915Notice regarding payment of attorney fees.—Before
  147  engaging an attorney or any other representative for services
  148  related to a petition for benefits under s. 440.192 or s.
  149  440.25, an injured employee or any other party making a claim
  150  for benefits under this chapter through an attorney shall attest
  151  with his or her personal signature that he or she has reviewed,
  152  understands, and acknowledges the following statement, which
  153  must be in at least 14-point bold type: “THE WORKERS’
  154  COMPENSATION LAW REQUIRES YOU TO PAY YOUR OWN ATTORNEY FEES.
  155  YOUR EMPLOYER AND ITS INSURANCE CARRIER ARE NOT REQUIRED TO PAY
  156  YOUR ATTORNEY FEES EXCEPT IN CERTAIN CIRCUMSTANCES. EVEN THEN,
  157  YOU MAY BE RESPONSIBLE FOR PAYING ATTORNEY FEES IN ADDITION TO
  158  ANY AMOUNT YOUR EMPLOYER OR ITS CARRIER MAY BE REQUIRED TO PAY
  159  OR AGREE TO PAY, DEPENDING ON THE DETAILS OF YOUR AGREEMENT WITH
  160  YOUR ATTORNEY. CAREFULLY READ AND MAKE SURE YOU UNDERSTAND ANY
  161  AGREEMENT OR RETAINER FOR REPRESENTATION BEFORE YOU SIGN IT.” If
  162  the injured employee or other party does not sign or refuses to
  163  sign the document attesting that he or she has reviewed,
  164  understands, and acknowledges the statement, the injured
  165  employee or other party making a claim under this chapter may
  166  not proceed with a petition for benefits under s. 440.192 or s.
  167  440.25, except pro se, until such signature is obtained.
  168         Section 4. Subsections (2), (4), (5), and (7) of section
  169  440.192, Florida Statutes, are amended, and subsection (1) of
  170  that section is republished, to read:
  171         440.192 Procedure for resolving benefit disputes.—
  172         (1) Any employee may, for any benefit that is ripe, due,
  173  and owing, file with the Office of the Judges of Compensation
  174  Claims a petition for benefits which meets the requirements of
  175  this section and the definition of specificity in s. 440.02. An
  176  employee represented by an attorney shall file by electronic
  177  means approved by the Deputy Chief Judge. An employee not
  178  represented by an attorney may file by certified mail or by
  179  electronic means approved by the Deputy Chief Judge. The
  180  department shall inform employees of the location of the Office
  181  of the Judges of Compensation Claims and the office’s website
  182  address for purposes of filing a petition for benefits. The
  183  employee shall also serve copies of the petition for benefits by
  184  certified mail, or by electronic means approved by the Deputy
  185  Chief Judge, upon the employer and the employer’s carrier. The
  186  Deputy Chief Judge shall refer the petitions to the judges of
  187  compensation claims.
  188         (2) Upon receipt of a petition, the Office of the Judges of
  189  Compensation Claims, or, upon motion, the assigned judge of
  190  compensation claims, shall review the each petition and shall
  191  dismiss the each petition or any portion of the such a petition
  192  which that does not comply with the requirements of this
  193  section, does not meet the definition of specificity under s.
  194  440.02(40), and does not on its face specifically identify or
  195  itemize the following:
  196         (a) The name, address, and telephone number, and social
  197  security number of the employee.
  198         (b) The name, address, and telephone number of the
  199  employer.
  200         (c) A detailed description of the injury and cause of the
  201  injury, including the location of the occurrence and the date or
  202  dates of the accident and the county in this state or, if the
  203  accident occurred outside of this state, the state where the
  204  accident occurred.
  205         (d) A detailed description of the employee’s job, work
  206  responsibilities, and work the employee was performing when the
  207  injury occurred.
  208         (e) The specific time period for which compensation and the
  209  specific classification of compensation were not timely
  210  provided.
  211         (f) The specific date of maximum medical improvement,
  212  character of disability, and specific statement of all benefits
  213  or compensation that the employee is seeking. A claim for
  214  permanent benefits must include the specific date of maximum
  215  medical improvement and the specific date on which such
  216  permanent benefits are claimed to begin.
  217         (g) All specific travel costs to which the employee
  218  believes she or he is entitled, including dates of travel and
  219  purpose of travel, means of transportation, and mileage and
  220  including the date the request for mileage was filed with the
  221  carrier and a copy of the request filed with the carrier.
  222         (h) Specific listing of all medical charges alleged unpaid,
  223  including the name and address of the medical provider, the
  224  amounts due, and the specific dates of treatment.
  225         (i) The type or nature of treatment care or attendance
  226  sought and the justification for such treatment. If the employee
  227  is under the care of a physician for an injury identified under
  228  paragraph (c), a copy of the physician’s request, authorization,
  229  or recommendation for treatment, care, or attendance must
  230  accompany the petition.
  231         (j) The specific amount of compensation claimed and the
  232  methodology used to calculate the average weekly wage, if the
  233  average weekly wage calculated by the employer or carrier is
  234  disputed. There is a rebuttable presumption that the average
  235  weekly wage and corresponding compensation calculated by the
  236  employer or carrier is accurate.
  237         (k) Specific explanation of any other disputed issue that a
  238  judge of compensation claims will be called to rule upon.
  239         (l)The signed attestation required pursuant to s.
  240  440.1915.
  241         (m)Certification and evidence of a good faith attempt to
  242  resolve the dispute pursuant to subsection (4).
  243  
  244  The dismissal of any petition or portion of such a petition
  245  under this subsection section is without prejudice and does not
  246  require a hearing.
  247         (4)(a)Before filing a petition, the claimant or, if the
  248  claimant is represented by counsel, the claimant’s attorney
  249  shall make a good faith effort to resolve the dispute. The
  250  petition must include:
  251         1. A certification by the claimant or, if the claimant is
  252  represented by counsel, the claimant’s attorney, stating that
  253  the claimant, or attorney if the claimant is represented by
  254  counsel, has made a good faith effort to resolve the dispute and
  255  that the claimant or attorney was unable to resolve the dispute
  256  with the carrier, or the employer if self-insured; and
  257         2.Evidence demonstrating such good faith attempt to
  258  resolve the dispute as described in the certification.
  259         (b)If the petition is not dismissed under subsection (2),
  260  the judge of compensation claims has jurisdiction to determine,
  261  in his or her independent discretion, whether a good faith
  262  effort to resolve the dispute was made by the claimant or the
  263  claimant’s attorney. If the judge of compensation claims
  264  determines that the claimant or the claimant’s attorney did not
  265  make a good faith effort to resolve the dispute before filing
  266  the petition for benefits, the judge of compensation claims must
  267  dismiss the petition and may impose sanctions to ensure
  268  compliance with this subsection, which may include, but are not
  269  limited to, assessment of attorney fees payable by the
  270  claimant’s attorney.
  271         (5)(a) All motions to dismiss must state with particularity
  272  the basis for the motion. The judge of compensation claims shall
  273  enter an order upon such motions without hearing, unless good
  274  cause for hearing is shown. Dismissal of any petition or portion
  275  of a petition under this subsection is without prejudice.
  276         (b)Upon a motion that a petition or a portion of a
  277  petition be dismissed for lack of specificity, a judge of
  278  compensation claims shall enter an order on the motion, unless
  279  stipulated in writing by the parties, within 10 days after the
  280  motion is filed or, if good cause for a hearing is shown, within
  281  20 days after a hearing on the motion. When any petition or
  282  portion of a petition is dismissed for lack of specificity under
  283  this subsection, the claimant must be allowed 20 days after the
  284  date of the order of dismissal in which to file an amended
  285  petition. Any grounds for dismissal for lack of specificity
  286  under this section which are not asserted within 30 days after
  287  receipt of the petition for benefits are thereby waived.
  288         (7) Notwithstanding the provisions of s. 440.34, a judge of
  289  compensation claims may not award attorney attorney’s fees
  290  payable by the employer or carrier for services expended or
  291  costs incurred before: prior to
  292         (a) The filing of a petition that meets the definition of
  293  specificity under s. 440.02(40) and includes all items required
  294  under subsection (2); or
  295         (b)The claimant or the claimant’s attorney, if the
  296  claimant is represented by counsel, has made a good faith effort
  297  to resolve the dispute does not meet the requirements of this
  298  section.
  299         Section 5. Paragraphs (h) and (j) of subsection (4) of
  300  section 440.25, Florida Statutes, are amended to read:
  301         440.25 Procedures for mediation and hearings.—
  302         (4)
  303         (h) To further expedite dispute resolution and to enhance
  304  the self-executing features of the system, those petitions filed
  305  in accordance with s. 440.192 that involve a claim for benefits
  306  of $5,000 or less shall, in the absence of compelling evidence
  307  to the contrary, are be presumed to be appropriate for expedited
  308  resolution under this paragraph; and any other claim filed in
  309  accordance with s. 440.192, upon the written agreement of both
  310  parties and application by either party, may similarly be
  311  resolved under this paragraph. A claim in a petition of $5,000
  312  or less for medical benefits only or a petition for
  313  reimbursement for mileage for medical purposes must shall, in
  314  the absence of compelling evidence to the contrary, be resolved
  315  through the expedited dispute resolution process provided in
  316  this paragraph. For purposes of expedited resolution pursuant to
  317  this paragraph, the Deputy Chief Judge shall make provision by
  318  rule or order for expedited and limited discovery and expedited
  319  docketing in such cases. At least 15 days before the prior to
  320  hearing, the parties shall exchange and file with the judge of
  321  compensation claims a pretrial outline of all issues, defenses,
  322  and witnesses, including a personal attestation by the
  323  claimant’s attorney detailing his or her hours to date, on a
  324  form adopted by the Deputy Chief Judge,; provided that, in no
  325  event shall such hearing may not be held without 15 days’
  326  written notice to all parties. The personal attestation by the
  327  claimant’s attorney must specifically allocate the hours by each
  328  benefit claimed and account for hours relating to multiple
  329  benefits in a manner that apportions such hours by percentage,
  330  in whole numbers, to each benefit. A No pretrial hearing may not
  331  shall be held and a no mediation may not be scheduled unless
  332  requested by a party. The judge of compensation claims shall
  333  limit all argument and presentation of evidence at the hearing
  334  to a maximum of 30 minutes, and such hearings may shall not
  335  exceed 30 minutes in length. Neither party shall be required to
  336  be represented by counsel. The employer or carrier may be
  337  represented by an adjuster or other qualified representative.
  338  The employer or carrier and any witness may appear at such
  339  hearing by telephone. The rules of evidence shall be liberally
  340  construed in favor of allowing introduction of evidence.
  341         (j) A judge of compensation claims may not award interest
  342  on unpaid medical bills and the amount of such bills may not be
  343  used to calculate the amount of interest awarded. Regardless of
  344  the date benefits are were initially requested, attorney
  345  attorney’s fees do not attach under this subsection until 45
  346  business 30 days after the date on which a the carrier or self
  347  insured employer receives the petition is filed with the Office
  348  of the Judges of Compensation Claims and unless the following
  349  conditions are met:
  350         1.Before the petition is filed, the claimant or the
  351  claimant’s attorney, if the claimant is represented by counsel,
  352  makes a good faith effort to resolve the dispute as provided in
  353  s. 440.192(4); and
  354         2.The petition meets the definition of specificity under
  355  s. 440.02(40) and includes all items required under s.
  356  440.192(2).
  357         Section 6. This act shall take effect July 1, 2021.