The final version of the Workers’ Compensation bill (SB 50A) passed the Florida Legislature on May 27, 2003. It was a comprehensive revision of Florida’s statutory framework for workers’ compensation matters. All of the changes were designed to either make the system more efficient or to correct deficiencies in the law which were creating increased costs to the system without additional benefits going to injured employees.
Since passage of the statute, Florida has seen rates reduced by 51% overall. All of the changes became effective on October 1, 2003, except where specifically noted to be January 1, 2004. A brief summary of the more important changes are as follows:
Eliminates the social security language from the definition of “catastrophic injury” so that the social security criteria will not be used to determine permanent total disability. New language allows a JCC 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. s.440.02 (38)(f).
New language 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. s.440.15(1)
Statute amended so that permanent total disability benefits cease 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. s.440.15(1)(b).
Major change in statute to eliminate hourly rates and require attorneys’ fees to be paid on a contingency fee basis. In lieu of the contingency fee there can be one time per accident one medical only claim, with a fee up to $l,500 based on an hourly rate of $150, should the JCC find such additional fee is warranted. s.440.34.
Beginning January 1, 2004, “construction industry” defined to mean any business that carries out certain construction activities. Allows for the exemption of up to three construction industry officers but only if they own at least ten percent each of the corporation. “Affiliated” is tightly defined. Prior law had no ownership requirement for an exemption. s.440.02(8)(15)(b)(2).
As of January 1, 2004, “employee” was defined 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 require 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. s.440.02(l5)(b) & (c) 1.
On January 1, 2004, the criteria changed for a person to be an independent contractor rather than an employee. They are automatically not an employee if 4 of 6 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.
On January 1, 2004, the corporate officer exemption process was tightened by requiring each officer seeking an exemption to 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. Eliminates all current statutory provisions that allow partners or sole proprietors to obtain exemptions, and allows corporate officer exemptions only for the individual named and applicable to the scope of the business or trade listed in the exemption. s.440.05.
Definitions of “occupational disease” and “repetitive trauma” were tightened by requiring the claimant show, by clear and convincing evidence, both causation and sufficient exposure to support causation.
To be considered “a major contributing cause”, the work related accident must be more than 50 percent responsible for the injury and subsequent disability. Major contributing cause can only be proven by medical evidence. s. 440.09 (1).
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. s.440.09
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 they were not under the influence at the time of the accident. s.440.09(7)(e).
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. s.440.09
Payment of temporary benefits for mental or nervous injuries are now limited to only 6 months after physical MMI is achieved. However, temporary indemnity for mental or nervous injuries can still not exceed 104 weeks of total temporary benefits. s.440.093(3).
Beginning January 1, 2004, contractors must require subcontractors to provide evidence of workers’ compensation insurance and any corporate officer/shareholder who is exempt, must present proof of the exemption to the contractor. Provides horizontal immunity between subcontractors working on the same project or contract work provided the subcontractor has secured workers’ compensation coverage and the subcontractor’s own gross negligence was not the major contributing cause of the injury. s.440.10(1)(c)(e).
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.” s.440.10(1)(g).
New language expressing that workers’ compensation is the employer’s exclusive liability, including vicarious liability. 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 before an employee to sue in tort, employee must show by clear and convincing evidence that employer 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. s.440.11(1).
Increases allowable chiropractic treatment from 18 visits or 8 weeks of treatment to 24 visits or 12 weeks of treatment. s.440.13(2)(a).
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. s.440.13(2)(b).
If a family member remains employed but furnishes attendant care during their non-working hours, such care is paid at federal minimum wage. Eliminates the loop hole in calculation of average weekly wage when a family member provided attendant care but remained employed. The statute already addressed what is paid when the family member is not working or quits to provide the care. s.440.13(2)(b).
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 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, 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. s.440.13(2)(f) and s.440.525(4).
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. s.440.13(4)(c).
Limits each side to only one independent medical examination (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. s.440.13(5).
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. s.440.13(5)(g).
Payments to hospitals for outpatient physical, occupational and speech therapy and outpatient non-emergency radiological and clinical laboratory services not related to surgery, were reduced to the same reimbursement schedule as those services performed by non-hospital providers. s.440.13(12)(b).
Defined wages to be determined from the date of accident and based 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. s.440.14(1)(a).
Clarified that an employer/carrier’s right to vocational assessment is by the employer/carrier’s chosen rehabilitation advisor or provider, and such costs will be borne by employer/carrier. s.440.15(1)(e).
Reduced supplemental benefits to only 3% of weekly compensation rate, down from prior 5% figure. s.440.15(1)(f).
All supplemental benefits stop at age 62, unless the employee is ineligible for social security benefits because the work injury prevented them from working sufficient quarters. New language addressed The Burger King Corp. v. Moreno and Wilkins v. Broward County School Board decisions to stop 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. s.440.15(1)(f)1.
New language to correct Winter Haven Hospital v. Nevius decision, 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. s.440.15(2)(b).
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. s.440.15(3)(c).
Impairment income benefits are payable biweekly, rather than at one time. 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. s.440.15(3)(c).
MMI and impairment rating must be assigned by authorized treating physician. If another physician assigns a rating, 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. Requires carrier to report 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. s.440.15(3)(d).
Abolished payment of supplemental benefits based on assignment of impairment rating greater than 20%. Established 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. s.440.15(3).
Temporary partial disability (TPD) benefits are only payable if overall MMI has not been reached and the claimant’s physical injuries from the work accident prevent working full duty. No TPD is payable if employee is terminated based on misconduct. s.440.15(4).
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. Disability and medical benefits shall be paid, apportioning out that percentage of the need for care attributable to a pre-existing condition. s.440.15(5).
Weeks in which an employee refuses employment are counted in the 104 weeks for purposes of computing TTD or TPD. 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. s.440.15.
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. s.440.151.
Tightens up the claims process by strengthening specificity in petitions including, if the employee is under the care of a physician for an injury, a copy of the physician’s request for authorization or recommendation for treatment or attendance must be attached to the Petition. s.440.192(2)(i)
Clarifies the prior statute that parties have 30 days to resolve any petition and a mediation is not ordered until 40 days after receipt of petition. This creates a 10 day window for the Judge of Compensation Claims to either schedule state mediation or order private mediation. The manner in which prior language was interpreted did not allow the parties time to resolve their differences before mediation was scheduled. The statute that passed in 2002 increased litigation. If multiple petitions are pending or filed after mediation has been scheduled, the JCC shall consolidate all petitions into one mediation. s.440.25(1).
New language created provision for offer of settlement to be communicated in writing to claimant/attorney at least 30 days before final hearing. If such offer is rejected, “benefits secured” for purposes of attorney fee calculation are limited to only those benefits awarded at trial that exceed the offer of settlement. The offer of settlement must be specific to each issue pending, including attorney’s fees and costs, and whether the offer for the issues is severable. s.440.34(2).
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