Several procedural changes to the workers’
compensation law were passed during the 2002 Regular Session of the
Florida Legislature. Some
of the amendments were passed to overturn case law. While there were changes in the transfer of the Division of
Workers Compensation and a bill on solvency issues, all affecting
workers compensation, this memo is directed solely to the changes made
in SB 108.
I understand that there may be a constitutional
challenge to SB 108 by the Cities and Counties and possibly the State
to that portion of the bill that relates to all law enforcement
officers, correctional officers and correctional probation officers
being given presumptions that tuberculosis, heart disease, or
hypertension suffered in
the line of duty is work related. See Sections One through Four of the bill. The challenge will
be based on the single subject issue.
In s. 440.l3(12)(d), a section was created to
establish a study regarding charges for medical treatment of all
health care providers. The
Three Member Panel, with staff from Department of Insurance, is to
determine if fees paid to health care providers under the medical fee
schedule and the 75% of usual and customary or per diem rates charged
by hospitals are sufficient, excessive, or if changes should be made
to insure that there is availability and accessibility of workers
compensation health care delivery systems to injured workers. The study is due to the Legislature on or before
January 1, 2003
Section 440.13(14) exempted the fee paid for Independent Medical
Examinations from the fee schedule to correct the Napier decision of the First District.
Section 440.134 was amended to clarify that the
legislative intent in 2001 when the managed care system provisions
were made voluntary rather than mandatory. ACHA had originally ruled that the “opt out” of managed
care was substantive rather that procedural. This would have created a dual system by carriers for accidents
if a carrier opted out of managed care. One system for accidents before
October 1, 2001
, and one system for
October 1, 2001
. ACHA later backed off of
its original opinion and determined that the decision of when managed
care would apply would be left up to the Judges of Compensation Claims
in each case.
III. PROCEDURAL CHANGES AS
TO HOW CASES ARE LITIGATED
Several amendments were adopted to
Sections 440.191 and 440.25 to streamline the litigation process:
1. The Employee Assistance and Ombudsman Office was
made voluntary rather than mandatory. The
major impact of this change is that the Request for Assistance was
2. The Division will be allowed to initiate contact with
the injured employee or the employee’s representative after
receiving notice of an injury rather than after a petition.
3. The Petition is filed by certified mail to the employer,
the Office of the Judges of Compensation Claims in
– not to be confused with the Judge of Compensation Claims - and
with the carrier. (This is current law and has not changed.) The only
change is that there is no need to file a Request for Assistance prior
to filing a Petition.
4. Once the Petition is filed, the carrier has 30 days from
receipt of the Petition to either pay the Petition or file a Response
to Petition before becoming responsible for the claimant’s
attorney’s fees. Note: The law has not changed that benefits are due within 14 days
from the time the benefits are to be paid. That is current law and still applies. Although no fees attach against the employer/carrier, penalties
and interest are still due
for late payment.
5. A mediation conference must be held within 90 days after
the petition is filed. NOTE: The filing of the Petition and the serving of the Petition is
the time starts from the date it was received at the Office of the
Judges of Compensation Claims.
6. Within 40 days after such petition is filed, - (the
petition is not final until 30 days after receipt.) - the Judge of
Compensation Claims is to notify all parties by order that a mediation
will be held and the date by which such mediation must be held. It is
important to note that this is effective on
July 1, 2002
January 1, 2003
, if there are not enough state mediators to hold mediations within 90
days from the date that the Petition is filed, the parties are
required to schedule a mediation within the 90 day time frame with a
private mediator at the expense of the employer/carrier.
NOTE: To insure that the law is complied with starting July 1, 2002, and knowing that there is no way most state mediators can
schedule all petitions within 90 days from the date the petition is
filed, parties should begin on July 1, 2002 setting mediations with
private mediators if one is not scheduled with a state mediator within
the 90 day timeframe to insure that all mediations are held within the
90 day time frame. This is
due to the fact that all final hearings must be held within 210 days
from the filing of the petition.
8. The private mediator that the parties use must be
certified under s. 44.106.
9. Once the Judge of Compensation Claims issues the order as to
the date mediation must be held, a continuance cannot be granted
unless the party requesting such continuance can show that
circumstances beyond the party’s control has occurred.
10. If the parties do not agree upon a mediator within l0 days
after the date of the order to pursue private mediation, the claimant
shall notify the judge in writing and the judge shall appoint a
mediator within 7 days.
11. Any order that grants a continuance of the mediation must set
forth the date of the rescheduled mediation which still must be
held within 90 days from the filing of the petition.
12. No mediation conference with state mediators can be used for
the sole purpose of mediating attorneys’ fees.
13. The parties must complete the pretrial stipulation before the
conclusion of the mediation conference, if the claims, not including
attorney’s fees and costs, have not been settled or issues on the
petition remain unresolved.
14. Sanctions can be imposed against any party that fails to
complete the pretrial conference before the conclusion of the
15. If the parties fail to agree upon written submission of
the pretrial stipulation at the mediation, the Judge of Compensation
Claims must order a pretrial conference within 14 days after the date
of the mediation ordered by the Judge of Compensation Claims.
16. The parties will be given at least 60 days to conduct
17. The final hearing must be held within 90 days after the
mediation conference but
in no event more than 210 days after the receipt of the petition.
NOTE: The Legislature did not make the same mistake it did in 1993
when it set deadlines in the statute for holding mediations, pretrial
conferences and final hearings. All
dates run from the date of receipt or the filing of the Petition for
18. The same rule applies for continuances of final hearings
as it does for mediations. The
judge must determine if the reason for the continuance is beyond the
control of the requesting party. The
order must set forth the date and time of the rescheduled final
hearing. However, it must
still be held within 210 days from the receipt of the Petition for
19. Res judicata has been adopted by requiring that any benefit due
but not raised at the final hearing that is ripe, due or owing is
20. If the Judge of Compensation Claims grants two or more
continuances, that must be
reported to the Deputy Chief Judge in the Office of the Judges of
21. Although the law under s. 440.25(4)(h) has for years
allowed for expedited resolution of issues without hearing, but with
submission of brief written statements and expedited discovery and
docketing, except for the “emergency conference” in (g), it is
rarely used. An
amendment was adopted that allows a Judge of Compensation Claims to
determine the issue of average weekly wage without hearing.
22. Further, the law under s. 440.25(4)(i) has allowed for
years for expedited resolution of benefits for less than $5,000, by
providing for expedited
and limited discovery of such cases, it also is rarely, if ever, used. An amendment was adopted to (i) to include claims for $5,000 or
less for medical benefits only and for reimbursement for mileage for
expedited resolution under (i).
23. Allows a Judge of Compensation Claims, upon a motion by a
party, or on the judge’s own motion, to dismiss a petition for lack
of prosecution, if a petition, response, motion, order, request for
hearing, or notice of deposition has not been filed during the
previous 12 months, unless good cause can be shown why a petition has been inactive for l2 months or
more. This motion does not
require a hearing. NOTE:
The filing of a Request to Produce will not stop this dismissal.
24. The Judge of Compensation Claims cannot award interest on
unpaid medical bills and the amount of such bills may not be used to
calculate the amount of interest awarded.
Regardless of the date benefits were
initially requested in a Petition for Benefits, attorneys’ fees do
not attach against the employer/carrier until 30 days after the date
that the employer/carrier or self-insured employer receives the
Petition for Benefits.
An amendment to 440.34(3)(a) overturns the Allen vs. Tryone Square case by substituting the word “petition” for the word
Clarifies the original intent of the statute by changing the word
“injury” in s. 440.34(3)(d) to “accident” to insure that fees are due from the employer/carrier of
self-insured employer when it denies that an accident rather than an injury has occurred.
V. PAYROLL AUDITS
When an application for coverage is completed, the application
must contain a sworn statement by the agent attesting that the agent
explained to the employer or officer of the corporation, the
classification codes that are used for premium calculations. s. 440.381(2).
At the completion of an audit performed by the
carrier that all sources of payments to employees, subcontractors, and
independent contractors have been reviewed for the accuracy of
classification of employees, s.
440.381(3) now provides that the employer or officer of the
corporation and the auditor must print and sign their names on the
audit document and attach proof of identification to the audit
VI. ANTI-FRAUD REWARD PROGRAM
All employers must post a
notice pursuant to s.
440.40(2) that an award of up to $25,000 will be paid to anyone by the Department of
Insurance providing information to the Department of Insurance leading
to the arrest and conviction of persons committing insurance fraud,
including employers who illegally fail to obtain workers compensation
VII. JUDGES OF COMPENSATION CLAIMS
An amendment to s.
440.45(l)(a) clarifies that the Division of Administrative Hearings is
not only the agency head for all purposes relating to the Judges Of
Compensation Claims, it also includes, but is not limited to,
rulemaking and establishing agency policies and procedures.
Ann Stiles, Esquire
Stiles, Taylor & Grace, P. A.
315 Plant Avenue
Phone – 813-251-2880