Senate Bill 1724 (2021) — Workers’ compensation
SB 1724
Florida Bills
Florida Senate - 2021 SB 1724 By Senator Perry 8-01659B-21 20211724__ Page 1 of 13 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1
An act relating to workers’ compensation; amending s. 2 440.02, F.S.; including the terms “specific” and 3 “specifically” as defined terms along with the term 4 “specificity” and revising the associated definition; 5 amending s. 440.11, F.S.; deleting an exception from 6 applicability of fellow-employee immunities; creating 7 s. 440.1915, F.S.; requiring injured employees and 8 other claimants to sign and attest to a specified 9 statement relating to the payment of attorney fees 10 before engaging an attorney or any other 11 representative for certain purposes; prohibiting such 12 injured employees or claimants from proceeding with a 13 petition for benefits, except pro se, until the 14 signature is obtained; amending s. 440.192, F.S.; 15 revising conditions under which a petition for 16 benefits or a portion thereof must be dismissed by the 17 Office of the Judges of Compensation Claims or the 18 assigned judge of compensation claims; revising the 19 information required in such petitions; providing 20 construction; requiring claimants and their attorneys 21 to make a good faith effort to resolve the dispute 22 before filing a petition; requiring that petitions 23 include evidence demonstrating such good faith effort; 24 authorizing judges of compensation claims to determine 25 if such effort was made; requiring the judge of 26 compensation claims to dismiss the petition, and 27 authorizing the judge to impose sanctions, including 28 attorney fees, if he or she finds such effort was not 29
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 2 of 13 CODING: Words stricken are deletions; words underlined are additions. made; providing that certain dismissals are without 30 prejudice; specifying timeframes within which a judge 31 of compensation claims must enter an order on certain 32 motions to dismiss; revising conditions under which 33 judges of compensation claims are prohibited from 34 awarding attorney fees; amending s. 440.25, F.S.; 35 requiring that the pretrial outline under a certain 36 expedited dispute resolution process contain a 37 specified personal attestation by the claimant’s 38 attorney relating to hours to date; revising the 39 timeframe and conditions under which attorney fees 40 attach to certain proceedings; providing an effective 41 date. 42 43 Be It Enacted by the Legislature of the State of Florida: 44 45
Section 1. Subsection (40) of
section 440.02, Florida 46 Statutes, is amended to read: 47 440.02
Definitions.—When used in this chapter, unless the 48 context clearly requires otherwise, the following terms shall 49 have the following meanings: 50 (40) “Specific,” “specifically,” or “specificity” means, 51 for purposes of determining the adequacy of a petition for 52 benefits under s. 440.192, that information on the petition is 53 for benefits sufficient to put the employer or carrier on notice 54 of the exact statutory classification and outstanding time 55 period for each requested benefit, the specific amount of each 56 requested benefit, the calculation used for computing the 57 specific amount of each requested benefit, and of benefits being 58
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 3 of 13 CODING: Words stricken are deletions; words underlined are additions. requested and includes a detailed explanation of any such 59 benefit benefits received that should be increased, decreased, 60 changed, or otherwise modified.
If the petition is for medical 61 benefits, the information must shall include specific details as 62 to why such benefits are being requested, including details 63 demonstrating that such benefits have specifically been denied 64 by the adjuster responsible for determining whether benefits are 65 payable to the claimant; why such benefits are medically 66 necessary;, and why current treatment, if any, is not 67 sufficient.
Any petition requesting alternate or other medical 68 care, including, but not limited to, petitions requesting 69 psychiatric or psychological treatment, must specifically 70 identify the physician, as defined in s. 440.13(1), who is 71 recommending such treatment. A copy of a report from such 72 physician making the recommendation for alternate or other 73 medical care must shall also be attached to the petition and 74 must include specific allegations and statements of fact 75 rebutting the specific denial by the adjuster handling payment 76 of benefits to the injured employee.
A judge of compensation 77 claims may shall not order such treatment if a physician is not 78 recommending such treatment. 79
Section 2. Subsection (1) of
section 440.11, Florida 80 Statutes, is amended to read: 81 440.11 Exclusiveness of liability.— 82
(1) The liability of an employer prescribed in s. 440.10 is 83 shall be exclusive and in place of all other liability, 84 including vicarious liability, of such employer to any third-85 party tortfeasor and to the employee, the employee’s legal 86 representative thereof, husband or wife, parents, dependents, 87
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 4 of 13 CODING: Words stricken are deletions; words underlined are additions. next of kin, and anyone otherwise entitled to recover damages 88 from such employer at law or in admiralty on account of such 89 injury or death, except as follows: 90 (
a) If an employer fails to secure payment of compensation 91 as required by this chapter, an injured employee, or the 92 employee’s legal representative thereof in case death results 93 from the injury, may elect to claim compensation under this 94
chapter or to maintain an action at law or in admiralty for 95 damages on account of such injury or death. In such action the 96 defendant may not plead as a defense that the injury was caused 97 by negligence of a fellow employee, that the employee assumed 98 the risk of the employment, or that the injury was due to the 99 comparative negligence of the employee. 100 (
b) When an employer commits an intentional tort that 101 causes the injury or death of the employee. For purposes of this 102 paragraph, an employer’s actions are shall be deemed to 103 constitute an intentional tort and not an accident only when the 104 employee proves, by clear and convincing evidence, that: 105 1. The employer deliberately intended to injure the 106 employee; or 107 2.
The employer engaged in conduct that the employer knew, 108 based on prior similar accidents or on explicit warnings 109 specifically identifying a known danger, was virtually certain 110 to result in injury or death to the employee, and the employee 111 was not aware of the risk because the danger was not apparent 112 and the employer deliberately concealed or misrepresented the 113 danger so as to prevent the employee from exercising informed 114 judgment about whether to perform the work. 115 116
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 5 of 13 CODING: Words stricken are deletions; words underlined are additions. The same immunities from liability enjoyed by an employer shall 117 extend as well to each employee of the employer when such 118 employee is acting in furtherance of the employer’s business and 119 the injured employee is entitled to receive benefits under this 120 chapter.
Such fellow-employee immunities do not apply shall not 121 be applicable to an employee who acts, with respect to a fellow 122 employee, with willful and wanton disregard or unprovoked 123 physical aggression or with gross negligence when such acts 124 result in injury or death or such acts proximately cause such 125 injury or death, nor shall such immunities be applicable to 126 employees of the same employer when each is operating in the 127 furtherance of the employer’s business but they are assigned 128 primarily to unrelated works within private or public 129 employment.
The same immunity provisions enjoyed by an employer 130 shall also apply to any sole proprietor, partner, corporate 131 officer or director, supervisor, or other person who in the 132 course and scope of his or her duties acts in a managerial or 133 policymaking capacity and the conduct that which caused the 134 alleged injury arose within the course and scope of said 135 managerial or policymaking duties and was not a violation of a 136 law, whether or not a violation was charged, for which the 137 maximum penalty that which may be imposed does not exceed 60 138 days’ imprisonment as provided set forth in s. 775.082.
The 139 immunity from liability provided in this subsection extends to 140 county governments with respect to employees of county 141 constitutional officers whose offices are funded by the board of 142 county commissioners. 143
Section
Section 440.1915, Florida Statutes, is created 144 to read: 145
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 6 of 13 CODING: Words stricken are deletions; words underlined are additions. 440.1915 Notice regarding payment of attorney fees.—Before 146 engaging an attorney or any other representative for services 147 related to a petition for benefits under s. 440.192 or s. 148 440.25, an injured employee or any other party making a claim 149 for benefits under this
chapter through an attorney shall attest 150 with his or her personal signature that he or she has reviewed, 151 understands, and acknowledges the following statement, which 152 must be in at least 14-point bold type: “THE WORKERS’ 153 COMPENSATION LAW REQUIRES YOU TO PAY YOUR OWN ATTORNEY FEES. 154 YOUR EMPLOYER AND ITS INSURANCE CARRIER ARE NOT REQUIRED TO PAY 155 YOUR ATTORNEY FEES EXCEPT IN CERTAIN CIRCUMSTANCES.
EVEN THEN, 156 YOU MAY BE RESPONSIBLE FOR PAYING ATTORNEY FEES IN ADDITION TO 157 ANY AMOUNT YOUR EMPLOYER OR ITS CARRIER MAY BE REQUIRED TO PAY 158 OR AGREE TO PAY, DEPENDING ON THE DETAILS OF YOUR AGREEMENT WITH 159 YOUR ATTORNEY. CAREFULLY READ AND MAKE SURE YOU UNDERSTAND ANY 160 AGREEMENT OR RETAINER FOR REPRESENTATION BEFORE YOU SIGN IT.” If 161 the injured employee or other party does not sign or refuses to 162 sign the document attesting that he or she has reviewed, 163 understands, and acknowledges the statement, the injured 164 employee or other party making a claim under this
chapter may 165 not proceed with a petition for benefits under s. 440.192 or s. 166 440.25, except pro se, until such signature is obtained. 167
Section 4. Subsections (2), (4), (5), and (7) of
section 168 440.192, Florida Statutes, are amended, and subsection (1) of 169 that
section is republished, to read: 170 440.192 Procedure for resolving benefit disputes.— 171
(1) Any employee may, for any benefit that is ripe, due, 172 and owing, file with the Office of the Judges of Compensation 173 Claims a petition for benefits which meets the requirements of 174
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 7 of 13 CODING: Words stricken are deletions; words underlined are additions. this
section and the definition of specificity in s. 440.02. An 175 employee represented by an attorney shall file by electronic 176 means approved by the Deputy Chief Judge. An employee not 177 represented by an attorney may file by certified mail or by 178 electronic means approved by the Deputy Chief Judge. The 179 department shall inform employees of the location of the Office 180 of the Judges of Compensation Claims and the office’s website 181 address for purposes of filing a petition for benefits.
The 182 employee shall also serve copies of the petition for benefits by 183 certified mail, or by electronic means approved by the Deputy 184 Chief Judge, upon the employer and the employer’s carrier. The 185 Deputy Chief Judge shall refer the petitions to the judges of 186 compensation claims. 187
(2) Upon receipt of a petition, the Office of the Judges of 188 Compensation Claims, or, upon motion, the assigned judge of 189 compensation claims, shall review the each petition and shall 190 dismiss the each petition or any portion of the such a petition 191 which that does not comply with the requirements of this 192 section, does not meet the definition of specificity under s. 193 440.02(40), and does not on its face specifically identify or 194 itemize the following: 195 (
a) The name, address, and telephone number, and social 196 security number of the employee. 197 (
b) The name, address, and telephone number of the 198 employer. 199 (
c) A detailed description of the injury and cause of the 200 injury, including the location of the occurrence and the date or 201 dates of the accident and the county in this state or, if the 202 accident occurred outside of this state, the state where the 203
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 8 of 13 CODING: Words stricken are deletions; words underlined are additions. accident occurred. 204 (
d) A detailed description of the employee’s job, work 205 responsibilities, and work the employee was performing when the 206 injury occurred. 207 (
e) The specific time period for which compensation and the 208 specific classification of compensation were not timely 209 provided. 210 (
f) The specific date of maximum medical improvement, 211 character of disability, and specific statement of all benefits 212 or compensation that the employee is seeking. A claim for 213 permanent benefits must include the specific date of maximum 214 medical improvement and the specific date on which such 215 permanent benefits are claimed to begin. 216 (
g) All specific travel costs to which the employee 217 believes she or he is entitled, including dates of travel and 218 purpose of travel, means of transportation, and mileage and 219 including the date the request for mileage was filed with the 220 carrier and a copy of the request filed with the carrier. 221 (
h) Specific listing of all medical charges alleged unpaid, 222 including the name and address of the medical provider, the 223 amounts due, and the specific dates of treatment. 224 (
i) The type or nature of treatment care or attendance 225 sought and the justification for such treatment. If the employee 226 is under the care of a physician for an injury identified under 227 paragraph (c), a copy of the physician’s request, authorization, 228 or recommendation for treatment, care, or attendance must 229 accompany the petition. 230 (
j) The specific amount of compensation claimed and the 231 methodology used to calculate the average weekly wage, if the 232
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 9 of 13 CODING: Words stricken are deletions; words underlined are additions. average weekly wage calculated by the employer or carrier is 233 disputed. There is a rebuttable presumption that the average 234 weekly wage and corresponding compensation calculated by the 235 employer or carrier is accurate. 236 (
k) Specific explanation of any other disputed issue that a 237 judge of compensation claims will be called to rule upon. 238 (
l) The signed attestation required pursuant to s. 239 440.1915. 240 (
m) Certification and evidence of a good faith attempt to 241 resolve the dispute pursuant to subsection (4). 242 243 The dismissal of any petition or portion of such a petition 244 under this subsection
section is without prejudice and does not 245 require a hearing. 246 (4)(
a) Before filing a petition, the claimant or, if the 247 claimant is represented by counsel, the claimant’s attorney 248 shall make a good faith effort to resolve the dispute. The 249 petition must include: 250 1. A certification by the claimant or, if the claimant is 251 represented by counsel, the claimant’s attorney, stating that 252 the claimant, or attorney if the claimant is represented by 253 counsel, has made a good faith effort to resolve the dispute and 254 that the claimant or attorney was unable to resolve the dispute 255 with the carrier, or the employer if self-insured; and 256 2.
Evidence demonstrating such good faith attempt to 257 resolve the dispute as described in the certification. 258 (
b) If the petition is not dismissed under subsection (2), 259 the judge of compensation claims has jurisdiction to determine, 260 in his or her independent discretion, whether a good faith 261
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 10 of 13 CODING: Words stricken are deletions; words underlined are additions. effort to resolve the dispute was made by the claimant or the 262 claimant’s attorney. If the judge of compensation claims 263 determines that the claimant or the claimant’s attorney did not 264 make a good faith effort to resolve the dispute before filing 265 the petition for benefits, the judge of compensation claims must 266 dismiss the petition and may impose sanctions to ensure 267 compliance with this subsection, which may include, but are not 268 limited to, assessment of attorney fees payable by the 269 claimant’s attorney. 270 (5)(
a) All motions to dismiss must state with particularity 271 the basis for the motion. The judge of compensation claims shall 272 enter an order upon such motions without hearing, unless good 273 cause for hearing is shown. Dismissal of any petition or portion 274 of a petition under this subsection is without prejudice. 275 (
b) Upon a motion that a petition or a portion of a 276 petition be dismissed for lack of specificity, a judge of 277 compensation claims shall enter an order on the motion, unless 278 stipulated in writing by the parties, within 10 days after the 279 motion is filed or, if good cause for a hearing is shown, within 280 20 days after a hearing on the motion. When any petition or 281 portion of a petition is dismissed for lack of specificity under 282 this subsection, the claimant must be allowed 20 days after the 283 date of the order of dismissal in which to file an amended 284 petition. Any grounds for dismissal for lack of specificity 285 under this
section which are not asserted within 30 days after 286 receipt of the petition for benefits are thereby waived. 287
(7) Notwithstanding the provisions of s. 440.34, a judge of 288 compensation claims may not award attorney attorney’s fees 289 payable by the employer or carrier for services expended or 290
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 11 of 13 CODING: Words stricken are deletions; words underlined are additions. costs incurred before: prior to 291 (
a) The filing of a petition that meets the definition of 292 specificity under s. 440.02(40) and includes all items required 293 under subsection (2); or 294 (
b) The claimant or the claimant’s attorney, if the 295 claimant is represented by counsel, has made a good faith effort 296 to resolve the dispute does not meet the requirements of this 297 section. 298
Section 5. Paragraphs (
h) and (
j) of subsection (4) of 299
section 440.25, Florida Statutes, are amended to read: 300 440.25 Procedures for mediation and hearings.— 301 (4) 302 (
h) To further expedite dispute resolution and to enhance 303 the self-executing features of the system, those petitions filed 304 in accordance with s. 440.192 that involve a claim for benefits 305 of $5,000 or less shall, in the absence of compelling evidence 306 to the contrary, are be presumed to be appropriate for expedited 307 resolution under this paragraph; and any other claim filed in 308 accordance with s. 440.192, upon the written agreement of both 309 parties and application by either party, may similarly be 310 resolved under this paragraph.
A claim in a petition of $5,000 311 or less for medical benefits only or a petition for 312 reimbursement for mileage for medical purposes must shall, in 313 the absence of compelling evidence to the contrary, be resolved 314 through the expedited dispute resolution process provided in 315 this paragraph. For purposes of expedited resolution pursuant to 316 this paragraph, the Deputy Chief Judge shall make provision by 317 rule or order for expedited and limited discovery and expedited 318 docketing in such cases. At least 15 days before the prior to 319
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 12 of 13 CODING: Words stricken are deletions; words underlined are additions. hearing, the parties shall exchange and file with the judge of 320 compensation claims a pretrial outline of all issues, defenses, 321 and witnesses, including a personal attestation by the 322 claimant’s attorney detailing his or her hours to date, on a 323 form adopted by the Deputy Chief Judge,; provided that, in no 324 event shall such hearing may not be held without 15 days’ 325 written notice to all parties.
The personal attestation by the 326 claimant’s attorney must specifically allocate the hours by each 327 benefit claimed and account for hours relating to multiple 328 benefits in a manner that apportions such hours by percentage, 329 in whole numbers, to each benefit. A No pretrial hearing may not 330 shall be held and a no mediation may not be scheduled unless 331 requested by a party. The judge of compensation claims shall 332 limit all argument and presentation of evidence at the hearing 333 to a maximum of 30 minutes, and such hearings may shall not 334 exceed 30 minutes in length.
Neither party shall be required to 335 be represented by counsel. The employer or carrier may be 336 represented by an adjuster or other qualified representative. 337 The employer or carrier and any witness may appear at such 338 hearing by telephone. The rules of evidence shall be liberally 339 construed in favor of allowing introduction of evidence. 340 (
j) A judge of compensation claims may not award interest 341 on unpaid medical bills and the amount of such bills may not be 342 used to calculate the amount of interest awarded. Regardless of 343 the date benefits are were initially requested, attorney 344 attorney’s fees do not attach under this subsection until 45 345 business 30 days after the date on which a the carrier or self-346 insured employer receives the petition is filed with the Office 347 of the Judges of Compensation Claims and unless the following 348
Florida Senate - 2021 SB 1724 8-01659B-21 20211724__ Page 13 of 13 CODING: Words stricken are deletions; words underlined are additions. conditions are met: 349 1. Before the petition is filed, the claimant or the 350 claimant’s attorney, if the claimant is represented by counsel, 351 makes a good faith effort to resolve the dispute as provided in 352 s. 440.192(4); and 353 2. The petition meets the definition of specificity under 354 s. 440.02(40) and includes all items required under s. 355 440.192(2). 356