SUMMARY OF 2003
WORKERS' COMPENSATION LEGISLATION
(SB 50-A)
By
Mary Ann Stiles
General Counsel
Associated Industries of Florida
This summary is intended to provide an outline of
the provisions passed in Senate Bill 50-A during Special Session A in
2003 of the Florida Legislature. It is an outline of the major workers’
compensation bill passed during 2003. This summary is not intended to be
a legal treatise, and all persons should consult the actual bill (SB
50-A) and/or consult with your attorney as to the legal meanings of the
provisions within the reform legislation. |
INDEX
(Click title to locate
in page)
CONSTRUCTION INDUSTRY
1. Effective 1/1/04, defines “construction
industry” to mean any business that carries out certain construction
activities. Additionally, provides “construction” does not mean a
homeowner’s act of construction on his own premises, provided that
the premises are not intended to be sold, resold, or leased by the
owner within one year after the commencement of construction. Current
law does not have the one-year “no-sale or resale” provision.
Allows the division to establish by rule which classification codes
meet the criteria of “construction industry.” Section 2.
§440.02(8).
2. Effective 1/1/04, allows for the exemption of up
to three construction industry officers but only if each of them own
at least ten percent of the corporation. “Affiliated” is tightly
defined to eliminate the abuse of the same three individuals forming
several different corporations to get around the limit of three
corporate officers. Current law has no ownership requirement for an
exemption. Section 2. §440.02(15)(b)(2).
3. Effective 1/1/04, defines “employee” to
include subcontractors in construction. The intent is to eliminate the
construction exemptions for entities, including subcontractors,
independent contractors, more than three corporate
officers/shareholders, partners and sole proprietors and requiring
these entities to have coverage. Protects the “Mom and Pops” in
the construction industry by allowing incorporation and allowing
officers/owners of l0% or more of the corporation to opt out. That is
the only exemption allowed. All others in the construction industry
would have to have workers compensation coverage. Section 2.
§440.02(l5)(b) & (c) 1.
4. Effective 1/1/04, exempts Medicaid-enrolled
clients participating in adult day training services are not
considered employees. Section 2. §440.02(15)(d)12.
5. Effective 1/1/04, includes employment agencies,
employee leasing companies and similar agents who provide employees to
other persons in the definition of “employer.” Section 2.
§440.02(16).
6. Effective 1/1/04, exempts homeowners from
definition of “employer.” Section 2. §440.02(16)(b).
7. Effective 1/1/04, exempts agents of AHCA
providing Adult Day training Services to Medicaid clients from
definition of “employer.” Section 2. §440.02(16)(c).
8. Effective 1/1/04, tightens up the corporate
officer exemption process by requiring that each officer seeking an
exemption must be on file with the Secretary of State as a corporate
officer at the time the exemption is sought. Requires a separate
exemption to be obtained each time the person is employed by a
different corporation. Each officer/shareholder must have a stock
certificate to evidence their ownership. Section 3. §440.05(3).
9. Effective 1/1/04, eliminates all current
statutory provisions that allow partners or sole proprietors to obtain
exemptions. Section 3. §440.05
10. Effective 1/1/04, allows corporate officer
exemptions only for the individual named and applicable to the scope
of the business or trade listed in the exemption. Section 3.
§440.05(12).
11. Effective 1/1/04, exemptions are void if at any
time after filing for exemption, the named person no longer meets the
statutory requirements. Section 3. §440.05(13).
12. Effective 1/1/04, prohibits any officer seeking
an exemption to ever receive compensation benefits or to be included
in premium calculations. Section 3. §440.05(14) and Section 5.
§440.077.
13. Effective 1/1/04, subjects stop work orders and
penalty assessments to any affiliated person of a corporate officer
who is in violation of a stop work order or penalty assessment.
Defines “affiliated persons” to include spouse, any other owner of
10% or more of voting securities of the corporation, any person(s)
under common control, any direct or indirect recipient of the persons
assets, and any officer, director, trustee, partners, owners, joint
venturer or employee performing similar duties or owning such entity
in common. Section 3. §440.05(15)
14. Effective 1/1/04, eliminates all amendments to
construction exemption created in SB 108. (2002)
15. Effective 1/1/04, requires contractors to
require subcontractors to provide evidence of workers’ compensation
insurance and clarifies that any corporate officer/shareholder who is
exempt, must present proof of the exemption to the contractor. Section
8. §440.10(1)(c ).
16. Effective 1/1/04, provides horizontal immunity
between subcontractors working on the same project or contract work
provided the subcontractor has secured workers’ compensation
coverage and that the subcontractor’s own gross negligence was not
the major contributing cause of the injury. Section 8. §440.10(1)(e).
This change means that in addition to the vertical immunity that a
general contractor and his sub contractors have, employees of
subcontractors working on the same job site but not for the same
subcontractor, will not be able to sue both in tort and in workers
compensation for their injuries. The workers compensation system would
be the exclusive remedy to the employee of a subcontractor injured by
the employee of another subcontractor on the same job site. This had
previously been the law in Florida several years ago.
17. Requires proof of workers’ compensation coverage or valid
exemption for issuance of building permit. Section 10. §440.103.
INDEPENDENT CONTRACTOR NOT IN THE CONSTRUCTION
INDUSTRY
18. Changes the criteria for a person to be an
independent contractor rather than an employee. They are automatically
not an employee if 4 of 6 of the statutory criteria are met.
Additionally, the JCC can consider seven additional factors
surrounding the case and determine that the individual is not an
employee. In all such cases, the claimant bears the burden of proof.
s. 440.02(15)(d)1.
DEFINITIONS
19. Defines “accident” to exclude toxic
exposure including fungus and mold unless there is clear and
convincing evidence that the exposure to the specific substance
involved, at the levels to which the employee was exposed, can cause
the injury or disease sustained by the employee. The definition is
also subject to the provisions of §440.15(5), governing subsequent
injury. Section 1. s. 440.02(1).
20. Defines “statement” required on notices,
bills, etc., to be the exact fraud statement language in s.
440.105(7). Section 1. §440.02(40)
21. Defines “specificity” that is required by
the current statute for every Petition filed. Petitions must include
exact benefit requested and documentation of how benefits are
incorrect or lacking. Also requires attachment of medical records,
referrals, etc. when petition seeks medical benefits. Section 1.
§440.02 (41).
OCCUPATIONAL DISEASE
22. Tightens definitions of “occupational disease”
and “repetitive trauma” by requiring the claimant show, by clear
and convincing evidence, both causation and sufficient exposure to
support causation. Partially addresses United States Sugar v. G. J.
Henson. Section 6. s. 440.09 (1).
23. Makes two very important changes relating to
occupational diseases. First, for an occupational disease to be
covered, both causation and sufficient exposure to support causation
must be proven by clear and convincing evidence. Second, in addition
to any other restrictions, to be considered a covered occupational
disease, there must be an epidemiological study showing that exposure
to the specific substance involved, at the levels to which the
employee was exposed, can cause the precise disease sustained by the
employee. Addresses U.S. Sugar v. G. J. Henson. Major
contributing cause can only be shown by physical examination findings
and diagnostic testing. Section 19. §440.151.
MAJOR CONTRIBUTING CAUSE
24. In order to be considered “a major
contributing cause”, the work related accident must be more than 50
percent responsible for the injury and subsequent disability.
Overturns Closet Maid v. Sykes. Major contributing cause can
only be proved by medical evidence. Section 6. s. 440.09 (1).
25. Causal relationship for medical conditions not
readily observable must be supported by physical examination findings
or diagnostic testing. Section 6. §440.09(1).
26. Specifies that pain or subjective complaints
alone is not compensable. Section 6. §440.09(1).
27. Requires employee to provide medical
documentation and other evidence to dispute drug test results
concerning quantities of substances identified in drug testing. This
requires claimants to put forth more evidence than just their personal
denial to prove that they were not under the influence at the time of
the accident. Section 6. §440.09(7)(e).
28. Defines “objective medical evidence” as
objective findings that correlate to the subjective complaints and
confirmed by physical examination findings or diagnostic testing.
Section 6. §440.09.
FRAUD
29. Prohibits recovery of workers compensation
benefits when employee has intentionally engaged in insurance fraud or
any criminal act for purposes of securing workers’ compensation
benefits, including pleas of guilty or nolo contendre. Section
6. §440.09.
30. Allows disclosure of any reported wage
information to the carrier relating to any individual who has filed a
workers’ compensation claim during any quarter that is the subject
of such claim(s). Division to establish forms and rules for obtaining
information. Section 42. 443.1715(2)(b).
31. Requires a carrier to submit an annual report
to the department detailing losses and recoveries attributable to
workers’ compensation fraud and authorizes the department to fine
carriers for noncompliance.
32. Authorizes the Division of Unemployment
Compensation to release information in certain circumstances
concerning an employee’s wages to determine if an injured worker is
employed and receiving workers compensation benefits.
33. Incorporates certain violations of ch. 440 in
the Offense Security Ranking Chart which would assist in the
prosecution and sentencing of workers compensation fraud by adding
certain acts as violations. (See Employer Fraud and Compliance section
below)
MENTAL OR NERVOUS INJURIES
34. Specifies that mental or nervous injury due to
stress, fright or excitement is not an injury for purposes of workers’
compensation. Requires a physical injury to accompany mental or
nervous condition for payment of benefits. Any physical condition
resulting from mental or nervous injuries without physical trauma is
not compensable. Physical work injury must be the major contributing
cause as defined above for the need for mental or nervous treatment
proven by clear and convincing evidence. Prohibit payment of benefits
or provision of treatment for mental or nervous conditions arising out
of depression for being out of work, pre-existing conditions, pain or
other subjective complaints. Section 7. §440.093
35. Limits payment of temporary benefits for mental
or nervous injuries to only 6 months after physical MMI is achieved.
However, TTD/TPD for mental or nervous injuries can still not exceed
104 weeks of total TTD/TPD benefits. Section 7. §440.093(3). (Since
no ttd or tpd is paid after mmi, this can only be used when someone
has a subsequent injury and collects for both injures at the same time
or is mmi from the physical injury.)
OUT OF STATE EMPLOYERS
36. Requires any employer with employees engaged in
work in Florida to hold a Florida workers’ compensation policy or
endorsement. Requires department to adopt rules defining “engaged in
work.” Section 8. §440.10(1)(g).
WORKPLACE SAFETY
37. Extends potential consideration in premium
calculation for private employers utilizing safety programs. Requires
division to publicize availability of free safety programs to
employers. Section 9. §440.1025
EMPLOYER FRAUD AND COMPLIANCE
38. Increases penalty to first degree misdemeanor
for any employer to knowingly coerce employee to obtain certificate of
exemption, discharge or refuse to hire an employee for filing a claim
for benefits, discharge or discipline an employee for reporting
violations of this chapter or to violate a stop-work order. Section
11. §440.105(2).
39. Subjects any employer or carrier who fails to
timely provide any notice of injury to a fine not to exceed $l,000
rather than the current $00, for each failure. Within 1 calendar year,
if an employer fails to timely submit more than l0% of its notices of
injury to its carrier, the employer shall be subject to an
administrative fine not to exceed $2,000 for each failure. Section 21.
s.440.185(9).
40. Includes failure to update applications within
7 days after change in required reporting information within actions
considered a first degree misdemeanor. Section 11. §440.105(3).
41. Includes knowing violation of stop work order
and presentation of false information for purposes of obtaining
employment or workers’ compensation benefits in definition of
insurance fraud. Section 11. §440.105(4).
42. Requires any injured employee making a claim
for benefits to provide personal signature acknowledging the fraud
statement. Refusal to sign results in suspended benefits until
signature is obtained. Section 11. §440.105(7).
43. False reports of insurance fraud constitute
third degree felony. Section 12. §440.1051(3).
44. Classifies an employer’s misrepresentation of
payroll or other information pertinent to experience rating
modification factor as failure to secure proper coverage and subjects
that employer to a stop work order. However, such stop work order has
no effect on the employer/carrier’s duty to furnish benefits.
Section 13. §440.107(2).
45. Allows additional department powers to enforce
workers’ compensation coverage requirements including conducting
investigations, inspecting businesses, examining business records,
issuing subpoenae, etc. Section 13. §440.107(3).
46. Provides that issuance of a stop work order on
an employer is applicable to all of that employers work sites
throughout the state. Provides $1,000 penalty per day for continuation
of business after a stop work order has been issued. Applies stop work
orders to all affiliated business entities engaged in the same or
equivalent activities. Allows fine of 1.5 times the unpaid premium
against any employer misrepresenting payroll. Provides additional
employer penalties for failure to comply with statute or department
rules and provides department additional enforcement powers. Section
13. §440.107(7).
47. Submission of an application for workers’
compensation coverage that contains false information to avoid or
reduce premiums, constitutes a second degree felony. Section 28.
§440.381.
48. Increases late fee for delinquent premium
installments up to $25. Section 33. §627.162
49. Creates a provision for a first degree
misdemeanor for any employer to knowingly create an employment
relationship in which the employee has used false, fraudulent or
misleading oral or written information. This language was added the
last minute of the legislative session to counter the provision that
it is unlawful for an employee to present any false, fraudulent, or
misleading oral or written statement to any person as evidence of
identity for the purpose of obtaining employment or filing or
supporting a claim for benefits. The opponents of this bill convinced
various legislators that this language was intended to discriminate
against illegal aliens. Section 11. §440.105(3)(b) and
440.105(4)(b)9.
EXCLUSIVE LIABILITY
50. Expresses that workers’ compensation is the
employer’s exclusive liability, including vicarious liability. Section
14. §440.11(1).
51. Strengthens the exclusive remedy provision of the
law by stating that an employer who provides workers’ compensation for
his employees is exempt from tort suit unless the employer acts with
actual intent to cause injury or death. Requires that for an employee to
sue in tort, employee must show by clear and convincing evidence that
employee deliberately intended to harm employee or that employer
knew or should have known that action was virtually certain to result in
injury or death, and that employee was not aware of the danger which was
not apparent and employer deliberately concealed the danger, prohibiting
the employee from exercising informed judgment. Addresses Turner v.
PCR. Inc. Section 14. §440.11 (1)(b).
MEDICAL TREATMENT
52. Requires all medical treatment to be furnished
within practice parameters and protocols of treatment, including
utilization review/control. Section 15. §440.13
53. Increases allowable chiropractic treatment from
18 visits or 8 weeks of treatment to 24 visits and increases from 8
weeks to 12 weeks of treatment. Section 15. §440.13(2)(a).
54. Provides that the employer/carrier is not
responsible for attendant care prior to receipt of written request
from the authorized treating physician setting out the time periods,
level of care and nature of assistance prescribed. Prohibits
retroactive prescriptions for attendant care. Section 15.
§440.13(2)(b).
55. If a family member remains employed but
furnishes attendant care during their non-working hours, such care is
paid at federal minimum wage. Also provides that if a family member
remains employed while providing attendant care, per-hour value of
such care is not to exceed family member’s employment hourly rate,
not to exceed value of such care in the community. Eliminates the loop
hole in calculation of average weekly wage when a family member
provides attendant care but remains employed. The statute already
addresses what is paid when the family member is not working or quits
to provide the care. Section 15. §440.13(2)(b).
56. Clarifies that an employee’s ability to
obtain treatment on her own when the employer does not furnish
treatment on request, only applies to the employee’s initial
treatment. Section 15. §440.13(2)(c).
57. Allows change in physician one time per
accident upon claimant’s request. Upon completion of change,
previous physician is de-authorized. Carrier to notify de-authorized
physician in writing. Carrier must provide alternate physician within
5 days (Silent as to whether business or calendar days) upon receipt
of request for change. Current requirement for list of three is
deleted. New physician must not be affiliated with initial physician,
but carrier otherwise gets to select. If carrier fails to provide new
physician, claimant may select on their own and their choice will be
authorized. Failure of carrier to timely comply with this provision
subjects carrier to penalties under §440.525, which range from up to
$2,500 with a max of $10,000 for unknowing pattern or practice of
violation and up to $20,000 with a max of $100,000 for knowing pattern
or practice of violation. Section 15. §440.13(2)(f) and Section 32.
§440.525(4).
58. Clarifies that a carrier must respond by
telephone or in writing to request for authorization for medical care
within 3 business days when the request is from an authorized health
care provider. Section 15. §440.13(3)(d).
59. Will require department to establish forms for
providers to report treatment and billing to carriers. Limits medical
providers charge to the injured employee to only $0.50 per page for
photocopies and actual costs for non-paper copies (x-rays films, etc.)
Section 15. §440.13(4).
60. Requires health care providers to not only
provide medical records to the employee or his attorney but also to
the employer, carrier or its attorney. Section 15. s.440.13(4)
61. Employee waives physician-patient privilege
when seeking medical treatment for which employee is seeking
compensation. Prohibits medical providers from requiring patient’s
consent prior to release of records, before or after petitions for
benefits is filed. If medical providers are out of state, employee
must provide employer/carrier with signed release form. Section 15.
§440.13(4)(c).
62. Limits each side to only 1(one) IME per
accident and requires each party to be responsible for the cost of
their IME. Carrier is no longer responsible for paying for or
scheduling claimant’s IME. Each party schedules their own IME with
notice of provider, date and time to the other party. IME provider may
not provide follow up care. If claimant prevails in proceedings before
JCC, and JCC relies on claimant’s IME opinion, then employer/carrier
must pay for claimant’s IME. Section 15. §440.13(5).
63. Allows parties to agree to “consensus
independent medical examination” other than the IME in the event of
a medical dispute. The findings of such mutually agreed examination
shall be binding on all parties and constitute resolution of the
dispute. Section 15. §440.13(5)(g).
64. Requires agency to establish qualifications for
expert medical advisors, including training and experience with
workers’ compensation system and commitment to practice parameters,
standards of care and protocols of treatment. If the employee prevails
based on the EMA’s opinion, the employer/carrier is responsible for
payment of the EMA, in accordance with agency payment schedule.
Section 15. §440.13(9).
65. Allows audit of medical providers by AHCA to
determine if practice parameters and protocols of treatment are being
followed. Section 15. §440.13(11).
66. Allows department to monitor carriers to
determine if medical bills are paid timely and allows imposition of
fines for each late payment that is below the minimum 95% performance
standard. This is increased from the current 90% minimum performance
standard. Section 15. §440.13(11).
67. Instructs 3 member panel to adopt hospital
reimbursement schedule including maximum hours in which an outpatient
may remain in observation status, not to exceed 23 hours. Section 15.
§440.13(12)(a).
68. Provides legislative intent to increase
schedule of maximum reimbursement for certain physicians effective
January 1, 2004, and to pay for those increases through reductions in
hospital payments. Section 15. §440.13(12)(b).
69. Reduces payments to hospitals for outpatient
physical, occupational and speech therapy and outpatient non-emergency
radiological and clinical laboratory services not related to surgery,
to the same reimbursement schedule as those services performed by
non-hospital providers. Section 15. §440.13(12)(b).
70. Reduces outpatient scheduled surgeries from 75%
to 60% of usual and customary charges. Section 15. §440.13(12)(b)3.
Many of these changes were necessitated due to the fact that some
outpatient charges by hospitals were the highest in the nation. The
savings were used to increase the physician’s fee schedule.
71. Increases reimbursement for services provided
by physicians licensed under ch. 458 or 459(medical doctors and
osteopathic doctors) to greater of 110% of Medicare or schedule
adopted by 3-Member Panel on 1/1/03. Section 15. §440.13(12).
72. Increases reimbursement for surgical procedures
to greater of 140% of Medicare or schedule adopted by 3-Member Panel
on 1/1/03. Section 15. §440.13(12).
73. Changes prescription prices from current level
of 1.2 times wholesale price plus $4.18 to only wholesale price plus
$4.18. Requires carriers to utilize pharmacy providers geographically
accessible to employee. Section 15. §440.13(12)(c).
74. Allows deviation from established fee schedule
when physician agree to in writing to follow identified procedures
aimed at providing quality health care at reasonable costs, including
but not limited to, timely scheduling of appointments, participating
in return to work programs, faster reporting of treatment provided,
continuing education, utilization review, quality assurance,
pre-certification and case management. Section 15. §440.13(14)(b).
75. Establishes that practice parameters applicable
to Chapter 440 are those established by United States Agency for
Healthcare Research and Quality, in effect January 1, 2003. Section
15. §440.13(15).
76. Establishes specific statutory standards of
care for provision of medical treatment. Section 15. §440.13(16).
MANAGED CARE
77. Grievance defined as being in writing, but not
in a Petition, when expressing dissatisfaction of the refusal to
provide or dissatisfaction with medical care. Section 16. §
440.134(1)(d).
78. Allows chiropractors and podiatrists to be
managed care coordinators on managed care cases. Section 16.
§440.134(1).
79. Requires carrier to pay for claimant’s IME if
IME provider is in carrier’s managed care network. Section 16.
§440.134(6).
AVERAGE WEEKLY WAGE
80. Defines wages to be determined from the date of
accident and bases compensation on actual wages earned during the 13
calendar weeks prior to the date of accident (not the date of injury),
excluding the week of accident at not less than 75% rather than
current 90% of hours actually worked. Section 17. §440.14(1)(a).
PERMANENT TOTAL DISABILITY
81. Eliminates the social security language from
the definition of “catastrophic injury” so that the social
security criteria is not used to determine permanent total disability.
In s. 440.15(l), new language is proposed that allows JCC’s to use
discretion when determining permanent total disability based on
claimant’s ability to perform at least sedentary employment within a
50-mile radius of their residence. Section 1. §440.02 (38)(f). (The
law prior to l993 used a l00-mile radius test.) Note these changes
were necessitated due to the fact that Florida has 5 times more
permanent total benefit claims than the region and 3 times the
national average. Further, that since l994, these benefits have
increased from 4% to 22% of the benefits paid in Florida at a time
when Florida has been losing the over age 65 population to other
states.
82. Strengthens the definition of permanent total
disability by eliminating the social security test. Redefines
permanent total disability to be determined when an employee is not
able to be engaged in at least sedentary employment available within a
50 mile radius of his residence. Section 18. §440.15(1)
83. Ceases permanent total disability benefits at
age 75 unless the employee is not eligible for social security because
the work injury prevented them from working sufficient quarters. If
the accident occurs after the claimant’s 70th birthday, then
permanent total disability benefits will not exceed 5 years from the
date following the determination of permanent total disability.
Section 18. § 440.15(1)(b).
84. Clarifies that
employer/carrier’s right to vocational assessment is by the
employer/carrier’s chosen rehabilitation advisor or provider and
costs for such will be borne by employer/carrier. Section 18.
§440.15(1)(e).
85. Reduces supplemental benefits to 3% of weekly
compensation rate, from current 5%. Section 18. §440.15(1)(f).
86. Stops all supplemental benefits at age 62,
unless the employee is ineligible for social security benefits because
the work injury prevented them from working sufficient quarters.
Addressed Burger King Corp. v. Moreno and Wilkins v. Broward
County School Board, and stops supplemental permanent total
benefits for those who become permanently and totally disabled after
age 65, when they are eligible for social security. Supplemental
benefits are already eliminated under current law for those who become
permanently and totally disabled before age 62 and for every PTD
between ages 62 to 65. Section 18. §440.15(1)(f)1.
CATASTROPHIC TEMPORARY
TOTAL DISABILITY
87. Corrects Winter Haven Hospital v. Nevius and clarifies that temporary total catastrophic benefits are paid
only for the first 6 months after the accident, but only to those
who are not eligible for or have not been determined to be
permanently and totally disabled. Returns statute to original intent
since 1974 The First DCA re-interpreted this statute in Nevius.
Section 18. §440.15(2)(b).
88. This is the only change that was made to the
temporary total disability benefits. 93.4% of all injured workers
receive these benefits for approximately 52 weeks even though
eligibility is for l04 weeks.
IMPAIRMENT INCOME
BENEFITS
89. Changes the formula and duration for
impairment benefits from 50% of the employee’s compensation rate
to 75% (subject to the maximum compensation rate under 440.12).
however, such benefits are reduced by 50% for each week in which the
employee has earned income equal to or in excess of their AWW.
Section 18. §440.15(3)(c). Before this change, these benefits are
calculated at 50% of the compensation rate.
90. Impairment income benefits are payable
biweekly. Section 18. §440.15(3)(c).
91. Impairment income benefits are payable for
physical impairments only. Limits psychiatric impairment to 1
percent for the calculation of permanent impairment and requires
psychiatric impairment must be proven to be work related. Section
18. § 440.15(3)(c).
92. MMI and impairment rating must be assigned by
authorized treating physician. If another physician assigns, the
treating physician must be provided with the certification and
rating within 10 days and must indicate agreement or disagreement in
writing to the carrier. Section 18. § 440.15(3)(d).
93. Requires carrier to report to department all
MMI certifications and impairment ratings within 14 days after
overall MMI has been reached. Treating doctor must be notified of
requirements if MMI is not reached within 98 weeks, decreased from
102 weeks. Section 18. §440.15(3)(d).
94. Eliminates the payment of supplemental
benefits based on assignment of impairment rating greater than 20%
in that so few collect so as to increase the benefits for those who
are entitled to impairment benefits. Section 18. §440.15(3).
95. Establishes new schedule for payment of
impairment income benefits based on permanent impairment rating
assigned. 2 weeks per percentage point if impairment rating is
1-10%; 3 weeks per percentage point if impairment rating is 11-15%;
4 weeks per percentage point if impairment rating is 16-20% and 6
weeks per percentage point if impairment rating is 21% or higher.
The system prior to this law change provided that injured workers
entitled to these benefits collect 3 weeks per percentage point of
impairment calculated at 50% of the compensation rate. Section 18.
§440.15(3)(g).
TEMPORARY PARTIAL
DISABILITY BENEFITS
96. Clarifies that payment of temporary partial
disability benefits can be paid on a schedule equivalent to the
employer’s payroll periods if the employee has returned to work
but is earning less than 80% of her AWW. A partial week may be paid
to accomplish this schedule. Section 18. §440.15(4).
97. TPD benefits are only payable if overall MMI
has not been reached and the claimant’s physical injuries from the
work accident prevent them from working full duty. §440.15(4).
98. Once the carrier has notice that employee can
work with restrictions, carrier must furnish TPD informational
letter to employee and employer explaining possible benefits and
responsibilities for TPD. Section 18. §440.15(4)(b).
99. If employee is working but earning less than
80% of AWW, TPD payments are due no later than the 7th day following
the last day of each biweekly work period. Section 18.
§440.15(4)(c).
100. If employee is unable to return to work
within his restrictions, TPD shall be paid no later than the last
day of each biweekly period. Employee’s failure to notify carrier
within 5 days of returning to work, shall result in suspension of
TPD until proper notification is provided. Section 18.
§440.15(4)(d).
101. No TPD is payable if employee is terminated
based on misconduct. Section 18. §440.15(4)(e).
102. Any weeks that an employee refuses
employment are counted in the 104 weeks for purposes of computing
TTD or TPD. Section 18. §440.15(6).
103. If employee leaves employment while on
restricted duty, without just cause as established by JCC, TPD shall
be payable based on deemed earnings as if employee had kept working.
Section 18. §440.15(7).
104. Note the these benefits were not cut nor
were the temporary total disability benefits for which an employee
is entitled to up to l04 weeks for both of these types of benefits
combined.
SUBSEQUENT
INJURY/PRE-EXISTING CONDITIONS
105. Only disability and medical treatment
connected to the work injury is compensable, excluding any
disability or medical condition existing at the time of the
impairment rating or the accident, regardless of whether the
pre-existing condition was disabling at the time of the accident and
without considering whether the pre-existing condition would be
disabling without the compensable accident. Section 18. §440.15(5).
106. Disability and medical benefits shall be
paid, apportioning out that percentage of the need for care
attributable to a pre-existing condition. Section 18.
§440.15(5)(b).
FUNERAL AND DEATH
BENEFITS
107. Increases funeral expenses to $7,500 and death
benefits to a max of $150,000. Section 20. §440.16.
108. Subjects any employer or carrier who fails
to timely provide any notice of injury to a fine not to exceed
$1,000 for each failure. Section 21. §440.185(9).
109. Upon receipt of notice of injury, carrier
must furnish to employee notification of availability of EAO
services including description of services available, toll free
telephone number, information brochure and any other necessary
information. Section 21. §440.185(12).
110. Requires payment for total disability or
death benefits to be made no later than the 14th calendar day
following notification of the injury of death. Section 24.
§440.20(2).
111. If first 7 days of disability are
nonconsecutive or delayed, the first installment of compensation is
due on the 6th day after the first 8 calendar days of disability.
Section 24. §440.20(2)(a).
112. Requires carrier to pay or disallow medical
bills within 45 days after receipt, submitted in accordance with
department rules. Section 24. §440.20(2)(b).
113. Requires carrier to furnish notice of
cessation of benefits to employer, employee and department, rather
than just department, in format defined by department. Section 24.
§440.20(3).
114. Refines 120 day pay and investigate
provision to apply to situations in which carrier is uncertain of
obligation to provide all benefits or compensation. Section 24.
§440.20(4).
115. Penalties shall not apply to late payment
beyond the employer/carrier’s control. Section 24. §440.20(6)(a).
116. Provides carrier penalties for late payments
or disallowance or denials of medical. hospital, pharmacy or dental
bills that are below a 95% minimum performance standard, payable to
the workers Compensation Administrative Trust Fund in the amount of
$25 for each bill below the 95% but above the 90% timely performance
standard and $50 for each bill below 90% timely performance
standard. Section 24. §440.20(6)(b).
117. Penalties for late payment of compensation
shall be imposed if below a 95% minimum timely performance standard,
in the amount of $50 per number of installments of compensation
below 95% timely performance standard but above 90% timely
performance standard and $100 per number of installments paid below
90% timely payment performance standard. Section 24. §440.20(8)(b).
118. Requires carrier to complete an onsite audit
of any employer the department determines has misrepresented or
concealed payroll or other information pertinent to computation and
application of an experience modification factor. The department
must receive a copy of the audit report upon completion. If the
policy is cancelled, the carrier can complete said audit in
conjunction with the cancellation. Section 28. §440.381.
119. Requires insurer to provide 10 days notice
of cancellation to policy holder for non-payment. Section 29.
§440.42.
120. Establishes stricter guidelines for
department audit/examination of any carrier, third-party
administrator, servicing agent or other claims-handling entity. Such
audits/examination may include, but are not limited to, patterns or
practices of unreasonable delay in claims handling; timeliness and
accuracy of payments and reports; or patterns or practices of
harassment, coercion or intimidation of claimants. Department may
specify by rule the documents required to be contained in each
claims file. Provides greater investigatory powers to department.
Section 32. §440.525.
121. Department discovery of any carrier
violation of Chapter 440 may result in administrative penalties,
which range from up to $2,500 with a max of $10,000 for unknowing
pattern or practice of violation and up to $20,000 with a max of
$100,000 for knowing pattern or practice of violation. Such
penalties may not be recouped from the rate base, premium or in any
rate filing. The Department shall adopt penalty guidelines. Section
32. §440.525(4).
SPECIFICITY
