October 1, 2001

• Casual employment that is anticipated to be completed in 10 working days or less, regardless of the number of persons employed, at a total labor cost of less than $500 is not an employee.s.440.02(4)
  
  
• There is a new definition of "sports official in interscholastic sports" that deletes those who meet this definition from the definition of employees.s.440.02(14)(d)ll.
  
  
• State prisoners or county inmates, except those working for private employers are not in the definition of employees.s.440.02(16)(c)5.
  
  
• With an employee’s authorization, a carrier can deposit the claimants compensation check directly into an employee’s blank account.s.440.12(1); 440.20(1)(a) and 440.20(6)
  
  
• When there is no managed care, and medical care is being given under 440.13, if the employee, upon written request, ask for a change in physician, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Must be selected form not fewer that three carrier-authorized physician who are not professionally affiliated.s.440,13(2)(f). This is intended to take the place, when providing care outside of a managed care arrangement, the employee’s one time change he has under managed care.

CAREFUL HERE- This is not intended to be used if managed care is applicable. If managed care is applicable, then the managed care rules apply. DO NOT GET CAUGHT BY AN UNKNOWING ATTORNEY WHO READS THE STATUTE WITHOUT ANY UNDERSTANDING OF IT.

WARNING-s.440.134 allows an employer to opt out of managed care. ACHA HAS ISSUED A PROPOSED RULE THAT WHEN MANAGED CARE IS DELETED THAT IT STILL MUST BE PROVIDED TO THOSE WHO WERE UNDER IT WHEN THEIR ACCIDENT OCCURRED. THE SENATE HAS ASKED ACHA FOR ITS AUTHORITY FOR THIS RULING IN THAT WHEN MANAGED CARE CAME IN IT HAD TO APPLY TO ALL DATES OF ACCIDENTS, SO WHY DOES THE DATE OF ACCIDENT MATTER IF THE CARRIER WANTS TO GET RID OF IT.

WATCH- THE STATUTE SAYS IT IS THE EMPLOYER THAT MUST OPT OUT OF THE MANAGED CARE ARRANGEMENT. SOME ARGUE THAT MEANS THE CARRIER AND OTHERS BELIEVE THE LEGISLATURE HAS TO ADD THE CARRIER TO ALLOW THE CARRIER TO MAKE THE DECISION.

• An authorized qualified rehabilitation provider or the attorney for the employer or carrier is also authorized to get medical records.s.440.13(4)(c)
  
  
• The employee is responsible for providing info concerning the loss of earnings from concurrent employment. .s.440.14(5)(a)

There is no entitlement to interest, penalties, and attorneys fees during the period in which the employee has not provided information concerning the loss of earnings from concurrent employment. Carriers are not subject to penalties, interest or fees during the period in which the employee has not provided such information.s.440.14(b).

The intent here is not to penalize the employer/carrier in any way when it is not the employer/carrier’s fault that concurrent employment wage information is not made available to the employer/carrier. The employee will not be paid any PIA on any benefits paid under this section when the carrier provides the benefit after proper notice.

• Deputy Chief Judge means that individual who is hired to work at DOAH who shall report to the director of DOAH. This is a new position that takes the place of the old Chief Judge of Compensation Claims effective 10-1-01.

This person will head of the Office of the Judges of Compensation Claims inside DOHA in Tallahassee.

Do not confuse this with the Judges (or Judge) of Compensation Claims that sit in the districts.

These distinctions are very important!

• An employee must file either by certified mail, or by electronic means with the Office of the Judges of Compensation Claims, (in Tallahassee) the petition. These are NOT to be filed with judges of compensation claims in the districts but at the OFFICE of Judges of Compensation Claims. The employee must also serve copies of the petition by certified mail or electronic means upon the employer and the employer’s carrier. The Deputy Chief Judge within the Office of Judges of Compensation Claims shall refer the Petitions to the judges of compensation claims.s.440.192(1).
  
  
• Upon receipt, the OFFICE of the Judges of Compensation Claims shall review each petition and shall dismiss each petition or any portion of such petition, upon the judge’s own motion or upon the motion of any party if the Petition is not specific.s.440.192(2)

This means that while the docketing judges are gone the docketing process is not. And note who dismisses- the Office of the Judges and the not the judges of compensation claims. It remains to be seen how this will work.

• New items have been added to the list of specificity: the date or dates of accidents; the specific classification of compensation that was not timely provided; specific travel costs; including the date the request for mileage was filed with the carrier and a copy of that request must be attached to the petition.s.440.192(2)(C);(e); and (g).
  
  
• The dismissal above is without prejudice and does not require a hearing.s.440.192(2).

Keep in mind in that it is very important that issues which are asserted within 30 days after receipt of the petition are thereby waived. I think that if the carrier raises it on it Response to Petition (formerly the Notice Of Denial) that that may sufficient to preserve the defense. However, due to the way the statute is written and the need for a Motion to Dismiss is also in the same paragraph, I think that we must be cognizant to file the motion within 30 days of the carriers receipt or it is barred and cannot be raised again.s.440.02(5)

NOTE: Notices of denials will still be used in denying compensability or when a medical bill is submitted for payment, both when there is no petition filed.

NOTE: Per DOAH, as of Friday, September 28th, the Response Petition was being prepared by DOAH and they want it filed with them as it is in response to the Petition and all Petitions must be filed with them. I will let you know more on this as news develops.

• Under the 120 day provision to investigate a claim, it now runs form 120 days after the initial provision of compensation or 120 days from receipt of the petition or under 440.20.(2) which provides that the first installment of compensation or to deny compensability must be no later than the 14th day after the employer receives notice of the injury or death. "The initial provision of compensation or benefits" means the first installment to be paid by the carrier by the 14th day of pursuant to a petition or under s.440.192(8). A court case had said otherwise.s.440.20(4)
  
  
• SETTLEMENTS AND/OR WASH OUTS- If a claimant is not represented by counsel, we will continue to use the old 440.20(11)(a) and (b) forms – that is the only significant change to a and b except that the 120 days under (a) is from the date the employer receives notice rather than the date of injury.

All other settlements will be pursuant to 440.20(11)(c) – the judge of compensation claims will have authority to approve only child support and fees paid by the claimant to his or her attorney.

The Judge must consider at the time of settlement, whether the settlement allocation provides for the appropriate recovery of child support arrearages. 440.20(11)(d) and under.

s.61.14, when recovering any lump sum settlement under 440.20(11) (a) and (b), a judge of compensation claims must consider whether the settlement serves the interests of the worker and the worker’s family, including, but not limited to, whether the settlement provides for the appropriate recovery of any child support arrearages.

NOTE – In (c) settlements, there is no provision for the judge to consider, when represented by an attorney whether the settlement serves the interests of the workers family.

In (c) settlements, a release is required between the parties but it is not approved by the Judge. The judge must be provide sufficient information from the papers to determine if the issues of child support and attorneys’ fees paid by the claimant meets his or her approval.

• Liens against benefits now include claims based on an award of child support or alimony. S 440.22.

Do not confuse a lien with a payment of benefits. A lien must be asserted by a third party. Washouts do not need to consider alimony amounts unless it is raised by the spouse of the injured worker and even then, since the judge of compensation claims has no authority over the release, neither would he or she have authority to enforce alimony in a settlement agreement whereas he or she does for child support.

• The claimant or the adjuster of the employer or carrier may, at the mediator’s discretion, attend the mediation conference by telephone or, if agreed to by the parties, other electronic means. S. 440.25(1) 
  
  NOTE : Since all mediators do is after the attorney for each side states their side of the case, is to put each group in their own little room and they do not see each other again, one wonders what purpose of face to face mediation is anyway. The phone serves the same purpose if both sides are represented by attorneys and the attorneys are there.
  
  
• The written consent of the claimant must be obtained before any request is granted for the second continuance. S. 440.25(4)(b).
  
  Some argue that this means that if an employer/carrier wants a continuance that the claimant has to agree if it is the second continuance. To allow this provision to operate in that manner would deny the employer/carrier the right to due process and takes away the judge’s discretion. It is a different story when the claimants attorney ask for a second continuance and the claimant must agree in writing.
  
  
• The judge of compensation claims has 30 days or closure of the record, enter a final order on the merits. The JCC may enter an abbreviated final order in cases in which compenssability is not disputed. Either party may request separate findings of fact and conclusions of law.
  
  

NOTE: There is no time frame as to when the JCC must issue the separate findings of fact and conclusions of law.