April 1, 2002

EFFECTIVE JULY 1, 2002  RELATING TO THE PASSAGE OF SB 108

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..

I. CONSTRUCTION INDUSTRY EXEMPTIONS

Throughout several provisions of Chapter 440, the legislature made several changes regarding those who may or may not be eligible for an exemption from workers' compensation to perform work on a construction job. The new law states that for anyone working in the construction industry on any commercial building project valued at $250,000 or greater, there will be no exemptions. This includes corporate officers, sole proprietors, partnerships and independent contractors. One is either an employee or an employer on any commercial job that has a contract valued at $250,000 or more. There has been no change to residential construction defined as a structure intended for residential use containing four or fewer dwelling units and any structure intended as an accessory use to the residential structure. See Sections Five through Eight and Seventeen through Twenty of the bill.

II. MEDICAL ISSUES

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 accidents after 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:

• 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 eliminated.
• 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.
• The Petition is filed by certified mail to the employer, the Office of the Judges of Compensation Claims in Tallahassee – 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.
• 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.
• 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 simultaneous. Therefore, the time starts from the date it was received at the Office of the Judges of Compensation Claims.
• 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 .
• Effective 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.
• The private mediator that the parties use must be certified under s. 44.106.
• 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.
• 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.
• 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.
• No mediation conference with state mediators can be used for the sole purpose of mediating attorneys’ fees.
• 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.
• Sanctions can be imposed against any party that fails to complete the pretrial conference before the conclusion of the mediation.
• 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.
• The parties will be given at least 60 days to conduct discovery.
• 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 Benefits.
• 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 Benefits
• 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 waived.
• 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 Compensation Claims.
• 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.
• 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).
• 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.
• 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.

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IV. ATTORNEYS’ FEES

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 “claim”.

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 document..

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 coverage..

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.

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Mary Ann Stiles, Esquire
Stiles, Taylor & Grace, P. A.
315 Plant Avenue
Tampa , Florida 33603
Phone – 813-251-2880
Email: mastiles@stileslawfirm.com