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440.09
Termination of Benefits For Misrepresentation

(4) (a) An employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims, administrative law judge, court, or jury convened in this state determines that the employee has knowingly or intentionally engaged in any of the acts described in 1. s. 440.105 or any criminal act for the purpose of securing workers' compensation benefits. For purposes of this section, the term "intentional" shall include, but is not limited to, pleas of guilty or nolo contendere in criminal matters. This section shall apply to accidents, regardless of the date of the accident. For injuries occurring prior to January 1, 1994, this section shall pertain to the acts of the employee described in s. 440.105 or criminal activities occurring subsequent to January 1, 1994.(b) A judge of compensation claims, administrative law judge, or court of this state shall take judicial notice of a finding of insurance fraud by a court of competent jurisdiction and terminate or otherwise disallow benefits.

Recommended Changes: The word(s) in (parentheses) are removed. Words in italics are added

(4) (a) An employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims, administrative law judge, court, or jury convened in this state determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 or any criminal act for the purpose of securing workers' compensation benefits. For purposes of this section, the term "intentional" shall include, but is not limited to, pleas of guilty or nolo contendere in criminal matters. This section shall apply to accidents, regardless of the date of the accident. For injuries occurring prior to January 1, 1994, this section shall pertain to the acts of the employee described in s. 440.105 or criminal activities occurring subsequent to January 1, 1994. However, compensation or other benefits under this chapter shall not be terminated by the employer/carrier until such judge of compensation claims, administrative law judge, court, or jury as stated above determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105.

Reason For Changes: This is simply a codification of recent case law and further makes clear that E/Cs cannot arbitrarily or upon their own initiative terminate an injured worker's benefits, indemnity or medical, UNTIL a court of competent jurisdiction, normally the JCC, makes a finding that the injured worker has violated 440.105. This is required because of the severity of the penalty, which results in a complete closing of an injured worker's entitlement to any worker's compensation benefits, possibly requiring him or her to, on some fashion, become a ward of the state.

440.13
Medical Care - One Time Change

2) (a) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH. --Subject to the limitations specified elsewhere in this chapter, the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, which is in accordance with established practice parameters and protocols of treatment as provided for in this chapter, including medicines, medical supplies, durable medical equipment, orthoses, prostheses, and other medically necessary apparatus. Remedial treatment, care, and attendance, including work-hardening programs or pain-management programs accredited by the Commission on Accreditation of Rehabilitation Facilities or Joint Commission on the Accreditation of Health Organizations or pain-management programs affiliated with medical schools, shall be considered as covered treatment only when such care is given based on a referral by a physician as defined in this chapter. Medically necessary treatment, care, and attendance does not include chiropractic services in excess of 24 treatments or rendered 12 weeks beyond the date of the initial chiropractic treatment, whichever comes first, unless the carrier authorizes additional treatment or the employee is catastrophically injured.(f) Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.Failure of the carrier to timely comply with this subsection shall be a violation of this chapter and the carrier shall be subject to penalties as provided for in s. 440.525.

Recommended Changes: The word(s) in (parentheses) are removed. Words in italics are added

(f) Upon the (written) express request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician (in the same specialty as the changed physician) shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.

Reason For Change: Most requests for a one time change of treating physicians are made verbally, and this change simply reflects that reality. Besides, the E/C rarely advises injured workers of their obligation to ask for this change in writing. The present language is read by many E/Cs that the inured worker can only get a change to a doctor in the SAME specialty as the doctor he or she is attempting to change. The purpose for this alleged limitation is unknown and, in many cases, makes no sense at all. If a person is seeing an orthopaedic doctor and is not surgical and is getting no help, why should an injured worker be limited to seeking a change to another orthopaedic surgeon who simply says that he has nothing more to offer than the first orthopaedic surgeon. It is the injured worker's injury. Why should he or she not be able to select another speciality within the managed care list, or provider lists, of the E/C to get better?

Recommended Changes: The word(s) in (parentheses) are removed. Words in italics are added

(1) (a) PERMANENT TOTAL DISABILITY. --In case of total disability adjudged to be permanent, 66 2/3 percent of the average weekly wages shall be paid to the employee during the continuance of such total disability. No compensation shall be payable under this section if the employee is engaged in, or is (physically) capable of engaging in, at least sedentary employment.
(b) In the following cases, an injured employee is presumed to be permanently and totally disabled unless the employer or carrier establishes that the employee is (physically) capable of engaging in at least sedentary employment within a 50-mile radius of the employee's residence:
In all other cases, in order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee's residence, due to his or her (physical limitation) limitations. Entitlement to such benefits shall cease when the employee reaches age 75, unless the employee is not eligible for social security benefits under 42 U.S.C. s. 402 or s. 423 because the employee's compensable injury has prevented the employee from working sufficient quarters to be eligible for such benefits, notwithstanding any age limits. If the accident occurred on or after the employee reaches age 70, benefits shall be payable during the continuance of permanent total disability, not to exceed 5 years following the determination of permanent total disability. Only claimants with catastrophic injuries or claimants who are incapable of engaging in employment, as described in this paragraph, are eligible for permanent total benefits. In no other case may permanent total disability be awarded.

Reason For Changes. While psychiatric in juries and disabilities must still be connected to compensable physical injuries based on other provisions of this Act, there is no reason to preclude a finding of PTD based upon a combination of compensable physical and psychiatric disabilities as has been the case for years. This correction in the law recognizes the reality of such situations and prevents an interpretation of the statute that limits PTD benefits solely to physical disabilities.

440.15
Temporary Benefits

(2) (a) TEMPORARY TOTAL DISABILITY. --Subject to subsection (7), in case of disability total in character but temporary in quality, 66 2/3 percent of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed 104 weeks except as provided in this subsection, 1. s. 440.12(1), and s. 440.14(3). Once the employee reaches the maximum number of weeks allowed, or the employee reaches the date of maximum medical improvement, whichever occurs earlier, temporary disability benefits shall cease and the injured worker's permanent impairment shall be determined.(b) Notwithstanding the provisions of paragraph (a), an employee who has sustained the loss of an arm, leg, hand, or foot, has been rendered a paraplegic, paraparetic, quadriplegic, or quadriparetic, or has lost the sight of both eyes shall be paid temporary total disability of 80 percent of her or his average weekly wage. The increased temporary total disability compensation provided for in this paragraph must not extend beyond 6 months from the date of the accident; however, such benefits shall not be due or payable if the employee is eligible for, entitled to, or collecting permanent total disability benefits. The compensation provided by this paragraph is not subject to the limits provided in s. 440.12(2), but instead is subject to a maximum weekly compensation rate of $ 700. If, at the conclusion of this period of increased temporary total disability compensation, the employee is still temporarily totally disabled, the employee shall continue to receive temporary total disability compensation as set forth in paragraphs (a) and (c). The period of time the employee has received this increased compensation will be counted as part of, and not in addition to, the maximum periods of time for which the employee is entitled to compensation under paragraph (a) but not paragraph (c).(c) Temporary total disability benefits paid pursuant to this subsection shall include such period as may be reasonably necessary for training in the use of artificial members and appliances, and shall include such period as the employee may be receiving training and education under a program pursuant to s. 440.491.

Recommended Changes: The word(s) in (parentheses) are removed. Words in italics are added

( (c) Temporary total disability benefits paid pursuant to this subsection shall include such period as may be reasonably necessary for training in the use of artificial members and appliances, and shall include such period as the employee may be receiving training and education under a program pursuant to s. 440.491.)

Reason For Changes: Rehabilitative TTD benefits under 440.491 have nothing to do with 440.15 disability benefits and should never have been included in the 104 week scheme. 440.15 TTD benefits involve the recovery time following a compensable accident, before an injured workers reaches MMI. TTD benefits under 440.491 involve retraining time, normally occurring AFTER MMI. It makes utterly no sense to combine these two separate benefits, which have totally different aims, under one artificial time limit. This is especially true when one considers that a person who has a prolonged period of recovery, requiring the use of a substantial part of the 104 weeks, will be MORE in need of the retraining TTD benefits provided under 440.491. Removing this benefit from the 104 week time barrier recognizes that these are two separate and distinct benefits that should never have been combined.

440.20
Payment of Compensation - late payment penalty

(7) If any compensation, payable under the terms of an award, is not paid within 7 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof, which shall be paid at the same time as, but in addition to, such compensation, unless review of the compensation order making such award is had as provided in s. 440.25.

Recommended Changes: The word(s) in (parentheses) are removed. Words in italics are added

(7) If any compensation, payable under the terms of an award, is not paid, for any reason, within 7 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof, which shall be paid at the same time as, but in addition to, such compensation, unless review of the compensation order making such award is had as provided in s. 440.25.

Reason For Change: This change is to correct recent case law which sidesteps the clear 'shall' language in this section to allow for an avoidance of payment of the 20% penalty unless it can be shown that they acted, essentially, willfully in not timely paying. This was never the law previously. This change puts the law back where it was, by requiring the E/C to do what the law required of them in paying awards timely or pay the penalty if they do not.

440.32
Costs in Frivolous Proceedings

440.32. Cost in proceedings brought without reasonable ground (1) If the judge of compensation claims or any court having jurisdiction of proceedings in respect of any claim or compensation order determines that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground, the cost of such proceedings shall be assessed against the party who has so instituted or continued the proceedings.(2) If the judge of compensation claims or any court having jurisdiction of proceedings in respect to any claims or defense under this section determines that the proceedings were maintained or continued frivolously, the cost of the proceedings, including reasonable attorney's fees, shall be assessed against the offending attorney. If a penalty is assessed under this subsection, a copy of the order assessing the penalty must be forwarded to the appropriate grievance committee acting under the jurisdiction of the Supreme Court. Penalties, fees, and costs awarded under this provision may not be recouped from the party.

Recommended Changes: The word(s) in (parentheses) are removed. Words in italics are added

(1) If the judge of compensation claims or any court having jurisdiction of proceedings in respect of any claim or compensation order determines that the proceedings in respect of such claim or order have been instituted, continued or a defense maintained (or continued) without reasonable ground, the cost of such proceedings, including attorney fees, shall be assessed against the party who has so instituted or continued the proceedings.

Reason For Changes: While this is a rarely used provision, its use needs to clearly include imposition of costs, which may include attorney fees, against E/Cs who interpose and maintain frivolous defenses just because they believe there is no penalty for putting forth defenses to claims that have no basis or are clearly error.

440.34
Attorney Fees - Hourly Cases

(7) If an attorney's fee is owed under paragraph (3)(a), the judge of compensation claims may approve an alternative attorney's fee not to exceed $ 1,500 only once per accident, based on a maximum hourly rate of $ 150 per hour, if the judge of compensation claims expressly finds that the attorney's fee amount provided for in subsection (1), based on benefits secured, fails to fairly compensate the attorney for disputed medical-only claims as provided in paragraph (3)(a) and the circumstances of the particular case warrant such action.

Recommended Changes: The word(s) in (parentheses) are removed. Words in italics are added

( (7) If an attorney's fee is owed under paragraph (3)(a), the judge of compensation claims may approve an alternative attorney's fee not to exceed $ 1,500 only once per accident, based on a maximum hourly rate of $ 150 per hour, if the judge of compensation claims expressly finds that the attorney's fee amount provided for in subsection (1), based on benefits secured, fails to fairly compensate the attorney for disputed medical-only claims as provided in paragraph (3)(a) and the circumstances of the particular case warrant such action.)

(7) Notwithstanding the above limitations on the amount of attorney fees, the judge of compensation claims may approve an alternative reasonable attorney's fee, based upon an hourly rate not to exceed $150 per hour, only in the following instances:
a) Where the employer has initially denied compensability of the accident in its entirety or denies compensability of the accident in its entirety after investigating its obligations to provide all benefits pursuant to 440.20(4) and the claimant successfully prevails on the issue of compensability. Said alternative fee may only be applied to time expended by the attorney up to the date of determination or acceptance of compensability; or
b) If an attorney's fee is owed under paragraph (3)(a), the judge of compensation claims may approve an alternative attorney's fee, under this subsection, not to exceed $ 1,500 only once per accident, based on a maximum hourly rate of $ 150 per hour, if the judge of compensation claims expressly finds that the attorney's fee amount provided for in subsection (1), based on benefits secured, fails to fairly compensate the attorney for disputed medical-only claims as provided in paragraph (3)(a) and the circumstances of the particular case warrant such action.

Reason For Changes: This keeps the 'medical only' fee provision as it now exists. It adds, however, a key provision that addresses a serious problem in workers' compensation litigation. It is a well known fact that totally controverted cases require significantly more time and effort than the normal workers' compensation case. This is true even when the benefits involved in such a controverted case are not significant. Allowing for an hourly rate, although severely restricted in the amount that can be awarded, recognizes the effort required for a claimant's attorney to prosecute such a case. The entitlement to such an hourly rate fee only goes up to the time when the employer accepts the case as compensable, after initially denying it and a claim is filed and discovery is had, or up till the time the JCC rules the case compensable. There are a large number of cases where the E/C is denying all benefits for various defenses after they initially pick up an injury as compensable. These would include denial of continuing benefits based on major contributing cause, denial based on misrepresentation, etc. This exception to the fee scale limitation would not apply to those cases.

440.34
Attorney Fees - Scale

440.34. Attorney's fees; costs (1) A fee, gratuity, or other consideration may not be paid for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the judge of compensation claims or court having jurisdiction over such proceedings. Any attorney's fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $ 5,000 of the amount of the benefits secured, 15 percent of the next $ 5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. The judge of compensation claims shall not approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his or her attorney, or any other agreement related to benefits under this chapter that provides for an attorney's fee in excess of the amount permitted by this section. The judge of compensation claims is not required to approve any retainer agreement between the claimant and his or her attorney. The retainer agreement as to fees and costs may not be for compensation in excess of the amount allowed under this section.(2) In awarding a claimant's attorney's fee, the judge of compensation claims shall consider only those benefits secured by the attorney. An attorney is not entitled to attorney's fees for representation in any issue that was ripe, due, and owing and that reasonably could have been addressed, but was not addressed, during the pendency of other issues for the same injury. The amount, statutory basis, and type of benefits obtained through legal representation shall be listed on all attorneys' fees awarded by the judge of compensation claims. For purposes of this section, the term "benefits secured" does not include future medical benefits to be provided on any date more than 5 years after the date the claim is filed. In the event an offer to settle an issue pending before a judge of compensation claims, including attorney's fees as provided for in this section, is communicated in writing to the claimant or the claimant's attorney at least 30 days prior to the trial date on such issue, for purposes of calculating the amount of attorney's fees to be taxed against the employer or carrier, the term "benefits secured" shall be deemed to include only that amount awarded to the claimant above the amount specified in the offer to settle. If multiple issues are pending before the judge of compensation claims, said offer of settlement shall address each issue pending and shall state explicitly whether or not the offer on each issue is severable. The written offer shall also unequivocally state whether or not it includes medical witness fees and expenses and all other costs associated with the claim.(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney's fees. A claimant shall be responsible for the payment of her or his own attorney's fees, except that a claimant shall be entitled to recover a reasonable attorney's fee from a carrier or employer:(a) Against whom she or he successfully asserts a petition for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident;(b) In any case in which the employer or carrier files a response to petition denying benefits with the Office of the Judges of Compensation Claims and the injured person has employed an attorney in the successful prosecution of the petition;(c) In a proceeding in which a carrier or employer denies that an accident occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability; or(d) In cases where the claimant successfully prevails in proceedings filed under s. 440.24 or
s. 440.28.Regardless of the date benefits were initially requested, attorney's fees shall not attach under this subsection until 30 days after the date the carrier or employer, if self-insured, receives the petition.(4) In such cases in which the claimant is responsible for the payment of her or his own attorney's fees, such fees are a lien upon compensation payable to the claimant, notwithstanding s. 440.22.(5) If any proceedings are had for review of any claim, award, or compensation order before any court, the court may award the injured employee or dependent an attorney's fee to be paid by the employer or carrier, in its discretion, which shall be paid as the court may direct.(6) A judge of compensation claims may not enter an order approving the contents of a retainer agreement that permits the escrowing of any portion of the employee's compensation until benefits have been secured.(7) If an attorney's fee is owed under paragraph (3)(a), the judge of compensation claims may approve an alternative attorney's fee not to exceed $ 1,500 only once per accident, based on a maximum hourly rate of $ 150 per hour, if the judge of compensation claims expressly finds that the attorney's fee amount provided for in subsection (1), based on benefits secured, fails to fairly compensate the attorney for disputed medical-only claims as provided in paragraph (3)(a) and the circumstances of the particular case warrant such action.

Recommended Changes: The word(s) in (parentheses) are removed. Words in italics are added

(1) A fee, gratuity, or other consideration may not be paid for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the judge of compensation claims or court having jurisdiction over such proceedings. Any attorney's fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to (20) 25 percent of the first $ 5,000 of the amount of the benefits secured, (15) 20 percent of the next $ 5,000 of the amount of the benefits secured, (10) 15 percent of the remaining amount of the benefits secured. ( to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years.) The judge of compensation claims shall not approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his or her attorney, or any other agreement related to benefits under this chapter that provides for an attorney's fee in excess of the amount permitted by this section. The judge of compensation claims is not required to approve any retainer agreement between the claimant and his or her attorney. The retainer agreement as to fees and costs may not be for compensation in excess of the amount allowed under this section.