DEFINITIONS

Employer

Employer includes the state and its political subdivisions, public and quasi-public corporations and their officers and shareholders, employment agencies, and employee leasing companies. Sec. 440.02(16)(a), Fla. Stat. A homeowner who hires persons to perform construction on their own premises which are not intended for immediate sale or lease are NOT considered employers. Sec. 440.02(16)(b), Fla. Stat.

Employment

Employment means any service performed by an employee for the person employing him or her. Sec. 440.02(17)(a), Fla. Stat. Employment includes employment with all political subdivisions and elected officers, all private employment with a non-construction entity with four or more employees, all private employment with a construction entity with one or more employees, and volunteer firefighters responding to emergencies. Sec. 440.02(17)(b), Fla. Stat. Employment does NOT include services performed by domestic servants in private homes, seasonal agricultural laborers employed by a farmer with five or fewer regular employees, professional athletes, or labor performed pursuant to a criminal sentence.Sec. 440.02(17)(c), Fla. Stat.

Statutory Employer

If a contractor sublets any part of its work to a subcontractor, all employees of the contractor and subcontractor will be covered by the contractor for benefits under Chapter 440, unless the subcontractor has secured its own coverage for its employees. Sec. 440.10(1)(b), Fla. Stat.

Employee

Employee means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment by appointment, contract for hire, apprenticeship, express or implied, oral or written, illegal aliens or minors. Sec. 440.02(15)(a), Fla. Stat. Employee also includes sole proprietors and independent contractors engaged in the construction industry. Sec. 440.02(15)(c), Fla. Stat. Employee does NOT include an independent contractor not engaged in the construction industry, a real estate licensee paid solely by commission, musical and theatrical performers, including disc jockeys, a motor vehicle owner-operator that transports property and is not paid by the hour, non-governmental volunteers, drivers of vehicles-for-hire, and umpires and referees for sports which are not employed by a district school board. Sec. 440.02(15)(d), Fla. Stat.

Borrowed Servant

An employee engaged in providing services to an employer through a help supply services company is considered a borrowed employee, covered by the employer’s coverage under Chapter 440, unless the help supply services company provides such coverage. Sec. 440.11(2), Fla. Stat.

Independent Contractor

To meet the definition of an independent contractor, at least four (4) of the following criteria must be met:

I. maintain a separate business with own work facility, truck, equipment, materials, or similar accommodations;

II. possess a federal employer identification number;

III. receive compensation for services rendered which is paid to a business rather than to an individual;

IV. hold one or more bank accounts in the name of the business entity for purposes of paying business expenses;

V. capable of performing work for any entity at his or her own election without completing an employment process;

VI. receive compensation for services rendered on a competitive-bid basis.

Even if four (4) of the above criteria do not exist, a person may still be presumed an independent contractor by satisfying any of the following conditions:

A. agrees to perform specific services for a specific amount of money and controls the means of performing the services;

B. incurs the principal expenses related to the services performed;

C. is responsible for the satisfactory completion of the services performed;

D. receives compensation for services performed as a commission or on a per-job basis;

E. may realize a profit or suffer a loss in connection with the services performed;

F. has continuing or recurring business liabilities or obligations;

G. the success or failure of the business depends on the relationship of business receipts to expenditures.

EXCLUSIVE REMEDY

General Rule

The liability of an employer shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. Sec. 440.11(1), Fla. Stat.

This exclusive liability applies to each employee of the employer, so long as that employee was acting in furtherance of the employer’s business and the injured employee is entitled to benefits under Chapter 440. Such fellow-employee immunities are not valid for an employee who acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence resulting in injury or death. Sec. 440.11(1)(b), Fla. Stat

Immunity from liability under sec.440.11(1) applies to employers and each employee of employers that utilizes the services of a help supply services company. Such an employee is considered a borrowed employee, covered by the liability of the borrowing employer unless the help supply services company has secured such coverage. Sec. 440.11(2), Fla. Stat.

Exceptions

I. If an employer fails to secure payment of compensation as required by Chapter 440, an injured employee, or his or her legal representative if death occurs, may elect to claim compensation under this chapter or may pursue an action at law or in admiralty for damages on account of the injury or death. In this situation, the employer may not raise the following defenses:

A. the injury was caused by the negligence of a fellow employee

B. the employee assumed the risk of the employment

C. the injury is due to the comparative negligence of the employee

Sec. 440.11(1)(a), Fla. Stat.

II. When an employer commits an intentional tort that causes the injury or death of an employee, which must be proven by clear and convincing evidence, exclusive liability under Chapter 440 does not apply. Sec. 440.11(1)(b), Fla. Stat.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rules on Jurisdiction

Jurisdiction over benefits available under Chapter 440 lies exclusively with the Office of the Judges of Compensation Claims.

The procedure for resolving a dispute over benefits available under Chapter 440 is to file a Petition for Benefits with the Office of the Judges of Compensation Claims. Sec. 440.192(1), Fla. Stat.

Extraterritorial Jurisdiction

If an accident occurs while a Florida employee is outside of the state of Florida, the employee is still entitled to benefits under Chapter 440 if the contract of employment was made in Florida or if the employment was principally localized in Florida. Sec. 440.09(1)(d), Fla. Stat.

If a Florida employee receives benefits under the laws of another state, the total compensation for the injury may not exceed that which is available under Chapter 440. Sec. 440.09(1)(d), Fla. Stat.

Time Limitations

An employee shall advise his or her employer of a work-related injury within 30 days of the initial manifestation of the injury. Sec. 440.185(1), Fla. Stat. Exceptions to this 30-day rule include:

I. when the employer has actual knowledge of the injury (Sec. 440.185(1)(a))

II. when the cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days of obtaining the medical opinionSec. 440.185(1)(b)

III. when the employer did not put its employees on notice of this 30-day requirement pursuant to (Sec. 440.185(1)(c))

IV. when exceptional circumstances outside the above exceptions justify such failure to notify (Sec. 440.185(1)(d))

An employer shall report such injury or death to its carrier within seven (7) days after actual knowledge of the injury or death. Sec. 440.185(2), Fla. Stat.

If a work accident results in the death of an employee, the employer must notify the Department of Financial Services of the death within 24 hours. However, this reporting requirement does not apply to situations where the death occurs after other notice has been provided to the Department. Sec. 440.185(3), Fla. Stat.

Statute of Limitations

Claims under Chapter 440 are barred unless the employee (or deceased employee’s estate) files a Petition for Benefits within two (2) years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment. Sec. 440.19(1), Fla. Stat.

Filing a Petition for Benefits does NOT toll the statute of limitations unless the Petition meets the specificity requirements of section 440.192. Sec. 440.19(3), Fla. Stat.

Failure to assert a statute of limitations defense in the initial response to a Petition for Benefits prevents the employer/carrier from relying upon such a defense. Sec. 440.19(4), Fla. Stat.

Tolling the Statute of Limitations

Payment of a benefit or provision of a medical benefit under Chapter 440 shall toll the limitations period for one (1) year from the date of the provision of the benefit. Sec. 440.19(2), Fla. Stat.

The statute of limitations is tolled during the period that a person entitled to benefits under Chapter 440 is mentally incompetent or a minor and without a guardian or other authorized representative.

The statute of limitations is tolled on a claim under Chapter 440 during the pendency of any other lawsuit arising out of the same incident in which recovery is denied the injured employee on the basis of coverage available under Chapter 440. Sec. 440.19(6), Fla. Stat.

The statute of limitations is tolled by the pendency of an attorney fee claim, even when no claims for other benefits under Chapter 440 are pending and even when no benefits under Chapter 440 have been provided in more than a year. Longley v. Miami-Dade County School Board, 82 So.3d 1098 (Fla. 1st DCA 2012).

COMPENSABILITY

General Rule

An employer must furnish benefits pursuant to Chapter 440 if an employee suffers an accidental compensable injury or death arising out of work performed in the course and scope of employment. The injury, its occupational cause, and resulting manifestations or disability must be established to a reasonable degree of medical certainty by objective relevant medical evidence. The accidental compensable injury must be the major contributing cause of any resulting injuries. Sec. 440.09(1), Fla. Stat.

I. Major contributing cause” means the cause which is more than fifty percent (50%) responsible for the injury as compared to all other causes combined. This must be demonstrated by medical evidence only.

II. “Objective relevant medical findings” means objective findings that correlate to the subjective complaints of the employee and are confirmed by physical examination findings or diagnostic testing.

Injuries Defined

I. A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Such a mental or nervous injury must accompany a compensable physical injury requiring medical treatment. Sec. 440.093(1), Fla. Stat.

II. An occupational disease is a disease that is due to causes and conditions characteristic of and peculiar to a particular occupation, excluding ordinary diseases of life to which the general public is exposed, unless the incidence of the disease in that particular occupation is substantially higher than the incidence in the general public. Sec. 440.151(2), Fla. Stat.

III. A condition or impairment caused by tuberculosis, heart disease, or hypertension resulting in disability or death is presumed to be an injury covered by Chapter 440 if it is suffered by a state law enforcement or correctional officer, a firefighter, or a probation officer.Sec. 112.8(1), Fla. Stat.

EXCLUSIONS AND DEFENSES

Intoxication

Compensation is not payable under Chapter 440 if the injury was occasioned primarily by the intoxication of the employee.Sec. 440.09(3), Fla. Stat.

Intentional Self-Inflicted Harm

Compensation is not payable under Chapter 440 if the injury was caused by the willful intention of the employee to injure or kill himself, herself, or another. Sec. 440.09(3), Fla. Stat.

Fraud

An employee shall not be entitled to benefits under Chapter 440 if any Florida court determines that the employee knowingly or intentionally misrepresented a fact or performed a criminal act for the purpose of securing workers’ compensation benefits.Sec. 440.09(4)(a), Fla. Stat.

Failure to Use Safety Device

Compensation under Chapter 440 shall be reduced by twenty-five percent (25%) if an employee’s injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute. Sec. 440.09(5), Fla. Stat.

Recreational or Social Activities

Such activities are not compensable unless they are an expressly required incident of employment which produce a substantial direct benefit to the employer. Sec. 440.092(1), Fla. Stat.

Going and Coming Rule

An injury suffered while going to or coming from work is not compensable under Chapter 440. Sec. 440.092(2), Fla. Stat. Even if the employer is providing the employee’s transportation, the injury is still not considered compensable.

Exceptions to the going and coming rule:

I. an employee engaged in a special errand or mission for the employer;

II. a law enforcement officer in an official law enforcement vehicle, absent a deviation from the route for a non-essential personal errand;

Deviation from Employment

An injury which occurs during a deviation from employment, unless that deviation is expressly approved by the employer or is an emergency designed to save life or property, is not compensable under Chapter 440. Sec. 440.092(3), Fla. Stat.

Traveling Employees

An injury suffered during travel which is required in connection with employment, incident to the performance of job responsibilities, is compensable. Sec. 440.092(4), Fla. Stat.

Subsequent Intervening Accidents

Injuries caused by a subsequent intervening accident that did not arise out of employment are not compensable, unless the accident happened while traveling to or from a health care provider for treatment for the compensable injury. Sec. 440.092(5), Fla. Stat.

BENEFITS

Average Weekly Wage

The average weekly wage is calculated based upon the date of injury, not the date of disability. Sec. 440.14(1), Fla. Stat.

If the employee has worked for the employer for substantially the whole (75% of customary hours) of the thirteen (13) weeks preceding the week of the accident, then the average weekly wage is calculated by averaging the gross earnings of the employee for those thirteen (13) weeks. Sec. 440.14(1)(a), Fla. Stat.

If the employee did NOT work substantially the whole of the thirteen (13) weeks preceding the week of the accident, then the wages of a similar employee in the same employment should be used to calculate the average weekly wage in the method described above. Sec. 440.14(1)(b), Fla. Stat.

If the employee is a seasonal worker and the above methods cannot be fairly applied, then the earnings from the calendar year or the fifty-two (52) weeks preceding the accident can be used to calculate the average weekly wage. Sec. 440.14(1)(c ), Fla. Stat.

If none of the above methods can be fairly and reasonable applied, the full-time weekly wages of the employee shall be used. Sec. 440.14(1)(d), Fla. Stat. Except:

I. If the employee is under twenty-two (22) years of age at the time of the accident and his or her wages were expected to increase over time, then that fact may be considered in calculating the average weekly wage. Sec. 440.14(1)(e), Fla. Stat.

II. If the employee is a part-time worker at the time of the accident and was expected to continue as a part-time worker but for the accident, then that fact shall be considered in calculating the average weekly wage. Sec. 440.14(1)(f), Fla. Stat.

Upon termination of the fringe benefits of any employee receiving indemnity benefits under Chapter 440, the average weekly wage calculation shall be revised to include the employer-paid portion of those fringe benefits. Sec. 440.14(4), Fla. Stat.

Concurrent earnings from another employer paid during the thirteen (13) weeks preceding the week of the accident shall be included in the calculation of the average weekly wage, but it is the employee’s burden to provide information regarding those concurrent earnings to the employer responsible for calculating the average weekly wage.Sec. 440.14(5), Fla. Stat.

Temporary Total Disability

When an injured employee is temporarily and totally disabled from working, he or she is entitled to receive bi-weekly payments of 66 2/3 % of his or her average weekly wage, which is also called the “compensation rate.” Sec. 440.15(2), Fla. Stat. The proper method of calculating the compensation rate can be found in Escambia County School District v. Vickery-Orso, 109 So.3d 1242 (Fla. 1st DCA 2013).

When an injured employee is eligible for temporary total disability benefits and their injury includes the loss of an arm, leg, hand, or foot, or they have been rendered paraplegic, paraparetic, quadriplegic, or quadriparetic, or they have lost sight in both eyes, this benefit shall be increased to 80% of the average weekly wage, not to exceed six (6) months from the date of the accident. Sec. 440.15(2)(b), Fla. Stat.

Temporary Partial Disability

When an injured employee is temporarily and partially disabled from working, he or she is entitled to receive bi-weekly payments of 80% of the difference between 80% of the average weekly wage and the wages or other remuneration which the employee is able to earn. Sec. 440.15(4), Fla. Stat.

These benefits are payable only if the medical conditions resulting from the work accident create restrictions on the injured employee’s ability to return to work. Sec. 440.15(4)(a), Fla. Stat

Permanent Impairment Benefits

Once an injured employee reaches a point of maximum medical improvement, or reaches the maximum number of weeks allowed for the payment of temporary benefits (which is 104 weeks), he or she is then entitled to the assignment of a permanent impairment rating upon which the payment of impairment benefits is based. Sec. 440.15(2)(a) and 440.15(3)(a), Fla. Stat.

A uniform permanent impairment rating schedule has been created per Florida Statute, and it is called the Florida Impairment Rating Guide. Health care providers must use this guide in assigning a permanent impairment rating to an injured worker. Sec. 440.15(3)(b), Fla. Stat.

Impairment income benefits are calculated at 75% of the compensation rate (the compensation rate is 66 2/3% of the average weekly wage). Sec. 440.15(3)(c), Fla. Stat.

If an employee has returned to work earning at least his or her average weekly wage, then the impairment benefits shall be reduced by 50%. Sec. 440.15(3)(c), Fla. Stat.

Regardless of the permanent impairment rating assigned to an employee’s psychiatric condition, impairment benefits are limited to one percent (1%) for such a condition. Sec. 440.15(3)(c), Fla. Stat.

For accidents which occurred prior to 10/1/03, permanent impairment benefits are paid at a rate of three weeks per percentage point of impairment. Sec. 440.15(3)(c), Fla. Stat. For accidents which occurred after 10/1/03, permanent impairment benefits are paid at a rate of:

I. Two (2) weeks for each percentage point from one (1) through ten (10);

II. Three (3) weeks for each percentage point from eleven (11) through fifteen (15);

III. Four (4) weeks for each percentage point from sixteen (16) through twenty (20); and

IV. Six (6) weeks for each percentage point from twenty-one (21) and higher.

Sec. 440.15(3)(g), Fla. Stat.

Permanent Total Disability

When an injured employee is permanently and totally disabled from a work injury, he or she is entitled to receive permanent total disability benefits, paid at a rate of 66 2/3 % of the average weekly wage. Sec. 440.15(1)(a), Fla. Stat.

To qualify for permanent total disability benefits, an injured employee must have reached a point of maximum medical improvement and must be incapable of engaging in at least sedentary employment within a 50-mile radius of his or her residence. Sec. 440.15(1)(b), Fla. Stat.

An injured employee enjoys a presumption of permanent total disability due to any of the following conditions:

I. spinal cord injury involving severe paralysis of an arm, leg, or the trunk;

II. amputation of an arm, leg, hand, foot, with the effective loss of use of that appendage;

III. severe brain or closed head injury with

a. severe sensory or motor disturbances;

b. severe communication disturbances;

c. severe complex integrated disturbances of cerebral function;

d. severe episodic neurological disorders; or

e. other severe brain and closed head injury conditions at least as severe in nature as any of the above conditions;

IV. second-degree or third-degree burns of 25% or more of the total body surface, or third-degree burns of 5% or more of the face and hands;

V. total or industrial blindness. Sec. 440.15(1)(b), Fla. Stat.

Entitlement to permanent total disability benefits ends at age 75, unless the injured employee is not eligible for Social Security benefits due to the work injury preventing him or her from earning sufficient quarters to be eligible for those benefits. If the accident occurs on or after the employee reaches age 70, then benefits are limited to five (5) years. Sec. 440.15(1)(b), Fla. Stat.

If an injured employee qualifies for permanent total disability benefits, he or she is also entitled to supplemental benefits calculated at three percent (3%) of the compensation rate multiplied by the number of years since the date of the accident. These benefits cease at age 62, unless the employee is not eligible for Social Security benefits due to the work injury preventing him or her from earning sufficient quarters to be eligible for social security benefits. Sec. 440.15(1)(f)(1), Fla. Stat.

The combination of permanent total disability benefits and supplemental benefits cannot exceed the maximum compensation rate established for the year in which the benefits are being paid. Sec. 440.15(1)(f)(1), Fla. Stat.

Once an employee exhausts 104 weeks of temporary indemnity benefits, he or she is considered to have reached a point of maximum medical improvement and is eligible for permanent total disability benefits without proving maximum medical improvement through medical evidence.Westphal v. City of St. Petersburg, 38 Fla. L. Weekly D2029 (1st DCA September 23, 2013)(pending review by the Florida Supreme Court).

Limitations on Indemnity Benefits

The payment of all temporary benefits, either temporary total or temporary partial disability benefits, shall not exceed 104 weeks. Sec. 440.15(4)(e), Fla. Stat.

If an injured worker is terminated from his or her post-injury employment based upon misconduct, then temporary partial disability benefits are not payable. Sec. 440.15(4)(e), Fla. Stat.

If an injured employee leaves his or her employment with the employer responsible for the claim while receiving temporary partial disability benefits, the employee must inform his or her former employer of his or her subsequent employment and is not entitled to temporary partial disability benefits until he or she does so. If the employee leaves the employment without just cause, temporary partial disability benefits are payable based on the deemed earnings of the employee as if he or she had remained employed there. Sec. 440.15(7), Fla. Stat.

Temporary benefits are not payable once an injured employee reaches a point of maximum medical improvement. Sec. 440.15(2)(a) and 440.15(4)(e), Fla. Stat. “Maximum medical improvement” means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability. Sec. 440.02(10), Fla. Stat

If an injured employee becomes incarcerated, no compensation is payable unless the employee has dependents. Sec. 440.15(8), Fla. Stat.

If an injured employee is receiving unemployment benefits concurrent with temporary partial disability benefits, the unemployment benefits shall be primary and the sum of the two benefits shall not exceed the amount of temporary partial disability benefits that would otherwise be payable. No temporary total disability or permanent total disability benefits are payable while an employee is receiving unemployment benefits. Sec. 440.15(10), Fla. Stat.

Any overpayment of indemnity benefits may be recouped by the employer/carrier from the employee at a rate of 20% of future payments. Sec. 440.15(12), Fla. Stat.

If an injured employee is receiving Social Security disability benefits or supplemental security income concurrently with indemnity benefits, the sum of all benefits shall not exceed the greater of eighty percent (80%) of the average weekly wage or eighty percent (80%) of the average current earnings. Such a reduction in indemnity benefits shall cease at age 62. Sec. 440.15(9)(a), Fla. Stat. Florida is a “reverse offset” state, meaning that the employer/carrier has the first priority in reducing its benefits based upon the combination of all of these benefits. Sec. 440.15(9)(b), Fla. Stat. The employee must sign a release allowing the employer/carrier to obtain information from the Social Security Administration pertaining to entitlement to benefits in order to calculate an offset. Indemnity benefits may be suspended for any period that the employee refuses to cooperate in the employer/carrier’s efforts to obtain such information from the Social Security Administration. Sec. 440.15(9)(c ), Fla. Stat. An employer/carrier cannot apply an offset retroactively to benefits already paid. Upson v. Orange County School Board, 811 So.2d 733 (Fla. 1st DCA 2002).

Death Benefits

If an injured employee dies as a result of a work accident within one (1) year after the accident or following a continuous disability resulting from the accident and death occurs within five (5) years of the accident, then the employee’s dependents are entitlement to death benefits. Sec. 440.16(1), Fla. Stat.

Death benefits include funeral expenses up to $7,500.00. Sec. 440.16(1)(a), Fla. Stat.

Compensation benefits as a result of death are capped at $150,000.00, payable on the following schedule:

I. If no children, to the spouse at a rate of fifty percent (50%) of the average weekly wage, to cease upon the spouse’s death. Sec. 440.16(1)(b)(1), Fla. Stat.;

II. If there are children, to the spouse at the above rate, plus 16 2/3% of the average weekly wage for the child/children. Sec. 440.16(1)(b)(2), Fla. Stat.;

III. If there is no spouse, to the children at a rate of 33 1/3% per child. Sec. 440.16(1)(b)(3), Fla. Stat.;

IV. To the parents, 25% to each during the continuance of dependency. Sec. 440.16(1)(b)(4), Fla. Stat.;

V. To the brothers, sisters, and grandchildren, 15% each. Sec. 440.16(1)(b)(5), Fla. Stat.

Medical Benefits

Medical benefits are governed by section 440.13, Florida Statutes.

The employer/carrier controls the choice of doctors, with a few exceptions. Sec. 440.13(2)(a), Fla. Stat.

If an employer/carrier fails to provide initial treatment or care requested by an injured employee, the employee may obtain such treatment on his or her own at the employer/carrier’s expense. Sec. 440.13(2)( c), Fla. Stat.

The employer/carrier shall provide professional or non-professional attendant care to an employee when it is recommended by a doctor and deemed medically necessary. A prescription for attendant care shall not prescribe such care retroactively. Sec. 440.13(2)(b), Fla. Stat.

Non-professional attendant care shall be paid at the following rates:

I. For a non-employed family member, or an employed family member who provides attendant care when he or she is not working, the federal minimum hourly wage applies. Sec. 440.13(2)(b)(1), Fla. Stat.

II. For an employed family member who chooses to leave that employment to provide attendant care, the hourly wage of the family member applies, not to exceed the value of such care in the community at large. Such attendant care cannot exceed twelve (12) hours per day. Sec. 440.13(2)(b)(2), Fla. Stat.

The carrier has the right to transfer an employee’s care from the authorized health care provider if an independent medical examination determines that the employee is not making appropriate progress in recuperation. Sec. 440.13(2)(d), Fla. Stat.

Upon the written request of an employee, the carrier shall give the employee one change of physician during the course of treatment for any one accident. The carrier shall authorize an alternative physician who is not professionally affiliated with the previously authorized physician within five (5) days after receipt of the written request. Failure to do so will allow the employee to select the alternative physician and such physician shall be deemed authorized, if the treatment provided is compensable and medically necessary. Sec. 440.13(2)(f), Fla. Stat.

To be paid for services provided to an employee, a medical provider must be certified by the state and be authorized by the carrier prior to providing treatment to the employee. Sec. 440.13(3)(a), Fla. Stat.

If emergency care is rendered, the health care provider must notify the carrier within three (3) business days of rendering that care. Such care is not compensable unless the injury requiring such care arose as a result of the work-related accident.Sec. 440.13(3)(b), Fla. Stat.

A health care provider cannot refer an employee to another health care provider without prior authorization from the carrier, except for emergency care. Sec. 440.13(3)(c ) , Fla. Stat.

The carrier must respond to a request for authorization of a referral from a health care provider within three (3) days of receipt of the request. Failure to do so results in the employer/carrier deeming such treatment medically necessary. Sec. 440.13(3)(d), Fla. Stat. An employer/carrier does not have to authorize a provider within three (3) days, they just have to respond to the request. Elmer v. Southland Corp., 5 So.3d 754 (Fla. 1st DCA 2009).

An injured employee has the right to choose their pharmacy or pharmacist for dispensing and filling prescriptions under this chapter. Sec. 440.13(3)(j), Fla. Stat.

If a dispute arises between the employee and the carrier regarding overutilization, medical benefits, compensability, or disability, either or both parties may select an independent medical examiner (IME). The parties are entitled to one IME per accident. The party requesting and selecting the IME bears the cost of the IME. Sec. 440.13(5)(a), Fla. Stat.

If a disagreement in the opinions of health care providers arises, the judge of compensation claims shall appoint an expert medical advisor to evaluate the employee and the employee’s medical records and render an opinion on the conflict. The opinion of the EMA is presumed to be correct unless there is clear and convincing evidence to the contrary. Sec. 440.13(9)(c ), Fla. Stat.

Payment for services provided by a health care provider are subject to a fee schedule established under this Chapter. Sec. 440.13(14)(b), Fla. Stat.

Once an employee reaches maximum medical improvement, all future treatment requires a $10.00 co-payment to be paid to the health care provider by the employee. Sec. 440.13(14)( c), Fla. Stat.

A carrier may furnish all medical care to an employee through a managed care arrangement that has been approved by the state. Sec. 440.134, Fla. Stat.

SUBROGATION

If an employee is injured or killed in the course and scope of employment through the negligence of a third party, the employee, or his or her dependents in the case of death, can accept benefits under Chapter 440 and also pursue a remedy at law against the third party tortfeasor. Sec. 440.39(1), Fla. Stat.

If the injured employee or his or her dependents recovers a remedy by judgment or settlement from the third party tortfeasor, the amount recovered shall be set off against the benefits provided under Chapter 440 after court costs and attorney’s fees are paid. Sec. 440.39(2), Fla. Stat.

If the injured employee or his or her dependents fail to bring suit against a third party tortfeasor within one (1) year after the cause of action accrues, the employer/carrier may institute a suit against the tortfeasor to recover the benefits provided under Chapter 440. Sec. 440.39(4)(a), Fla. Stat.

If the employer/carrier does not bring suit against the tortfeasor within two (2) years after the cause of action accrues, the right of action shall revert back to the employee and/or his or her dependents.Sec. 440.39(4)(b), Fla. Stat.

The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims against a third party tortfeasor by producing non-privileged documents and allowing inspection of premises. Sec. 440.39(7), Fla. Stat.

The workers’ compensation lien is calculated as follows: One hundred percent (100%) of what the employer/carrier has paid in benefits under Chapter 440 and will pay in the future under Chapter 440, unless the employee can show that he or she did not recover the full value of the damages sustained. If the employee meets that burden, then the lien is calculated based upon a percentage of what the employer/carrier has paid and will pay under Chapter 440 which is equal to the percentage that the employee’s net recovery is to the full value of his or her damages. Sec. 440.39(3)(a), Fla. Stat.

ATTORNEYS

Certifying Organization

The Florida Bar allows for certification as a specialist in workers’ compensation law in Florida.

Requirements for Initial Certification

In order to be certified as such a specialist, an attorney must have practiced law on a full-time basis for at least five (5) years with at least thirty percent (30%) of that practice being dedicated to workers’ compensation law during the three (3) years immediately preceding application for certification. The attorney must also participate in the trial of at least 25 contested workers’ compensation claims, presenting the majority of the evidence to the court. The attorney must pass a peer review, pass a written exam, and complete 45 hours of continuing legal education credits within the three (3) years immediately preceding the date of application for certification.

Requirements for Re-certification

Re-certification must occur every five (5) years. For re-certification, an attorney must have practiced law in the past five (5) years with at least 30% of that practice being dedicated to workers’ compensation law. The attorney must have tried at least fifteen (15) contested workers’ compensation cases, or at least five (5) trials plus a combined total of no more than eight (8) appeals, protracted litigation of contested cases, and no more than five (5) cases of the substantial equivalent. The attorney must have completed seventy-five (75) hours of continuing legal education in the workers’ compensation area of law. The attorney must also pass a peer review.

Attorney Fees

Attorneys fees paid in workers’ compensation cases must be approved by a judge of compensation claims. Sec. 440.34(1), Fla. Stat.

Attorney’s fees are calculated based upon the value of the benefits obtained by counsel on behalf of the claimant. The statutory calculation of the fee is as follows:

I. 20% of the first $5,000.00 of the amount of the benefits secured;

II. 15% of the next $5,000.00 of the amount of the benefits secured;

III. 10% of the remaining amount of the benefits secured to be provided in the first ten (10) years after the claim was filed;

IV. 5% of the benefits secured after ten (10) years.

       Sec. 440.34(1), Fla. Stat.

CLAIMS PROFESSIONALS

Claims professionals are required to be licensed in Florida in order to adjust workers’ compensation claims, and there are continuing education requirements.

LITIGATION AND APPEALS

Office of Judges of Compensation Claims

The Florida Department of Management Services, Division of Administrative Hearings, has a separate department for the handling of workers’ compensation claims, called the Office of the Judges of Compensation Claims. Sec. 440.45, Fla. Stat.

Judges of compensation claims are appointed to their position by the Governor and are located throughout Florida to handle cases assigned to them by the chief judge in their jurisdiction and venue. Sec. 440.45, Fla. Stat.

Qualifications for Judge of Compensation Claims

Candidates must be a member of the Florida Bar for five (5) years in good standing and with experience in the practice of workers’ compensation law. No judge of compensation claims may engage in the private practice of law during their term in office. Sec. 440.45(2)(a), Fla. Stat.

Judges of compensation claims serve for a term of four (4) years, but they may be removed from office for cause by the Governor. The Governor may re-appoint judges of compensation claims for another terms upon satisfactory review by a commission tasked with such reviews. Sec. 440.45(2)( c), Fla. Stat.

Procedure Before the Judges of Compensation Claims

Proceedings before the judges of compensation claims involve a quasi-judicial procedure governed by the Rules of Procedure for Workers’ Compensation Adjudications, found in Title 60 of the Florida Rules of Administrative Procedure, Chapter 60-Q. These rules provide time frames for the litigation of cases.

Litigation is initiated by the filing of a Petition for Benefits by an injured employee with the Office of the Judges of Compensation Claims. Sec. 440.192(1), Fla. Stat.; Rule 60Q-6.105,Rules of Procedure for Workers’ Compensation Adjudications.

Mediation is mandatory for every Petition for Benefits filed. Sec. 440.192(9), Fla. Stat. Mediation can be conducted by a state mediator, free of charge to the parties, or by a private mediator.

An injured employee is called a “claimant.” His or her employer and the employer’s insuring entity are called the “employer/carrier.”

Motions are allowed in workers’ compensation proceedings. Rule 60Q-6.105, Rules of Procedure for Workers’ Compensation Adjudications.

Trials are called “final hearings.” Lay witnesses testify live, unless the parties agree to submit the deposition of such witnesses. Expert witnesses are permitted to testify by deposition. Judges of compensation claims are permitted to take testimony by telephone at final hearings.

Powers of the Judges of Compensation Claims

Judges of compensation claims may preserve and enforce order during their proceedings. They can administer oaths and issue subpoenas for the appearance of witnesses or for the production of documents. They can “do all things conformable to law which may be necessary to enable the judge effectively to discharge the duties of her or his office.” Sec. 440.33(1), Fla. Stat.

A judge of compensation claims has no power to enforce his or her own orders. Such enforcement is available through a rule nisi proceeding in civil court. Sec. 440.24, Fla. Stat. However, the rule nisi remedy for enforcement is only available to claimants when an employer/carrier defaults on an order. It is not available to employer/carriers when a claimant defaults on an order. Orange County v. New, 39 So.3d 423 (Fla. 5th DCA 2010).

Appeals from Orders of the Judges of Compensation Claims

The First District Court of Appeal in Tallahassee has exclusive jurisdiction over appeals from orders of the judges of compensation claims. Rule 9.180, Florida Rules of Appellate Procedure.

SETTLEMENT

Child Support Arrearage

Settlements must provide for the appropriate recovery of child support arrearages from the claimant’s settlement proceeds. Sec. 440.20(11)(d)(1), Fla. Stat.

Attorney’s Fee

The employer/carrier is not responsible for the payment of attorney’s fees associated with a settlement. The claimant is responsible for this. Sec. 440.20(11)(c ), Fla. Stat.

Settlements Involving Claimants Represented by Counsel

If a claimant is represented by counsel, the judge of compensation claims need only review and approve the attorney fee provision of the settlement and the handling of any child support arrearage owed by the claimant. Sec. 440.20(11)(c), Fla. Stat

Settlements Involving Claimants Not Represented by Counsel

If a claimant is not represented by counsel, settlement is allowed after the claimant reaches maximum medical improvement or at any time on a controverted (compensability denied) case. Sec. 440.20(11)(a) and (b), Fla. Stat.

The parties must petition the judge of compensation claims to approve the settlement agreement of the parties. The judge of compensation claims will only approve such a settlement agreement if:

I. the settlement proceeds do not exceed the value of the benefits otherwise available to the claimant under Chapter 440; and

II. the settlement will definitely aid the rehabilitation of the claimant; or

III. the settlement is otherwise clearly in the best interests of the claimant. Sec. 440.20(11)(b), Fla. Stat.

INSURANCE

General Rule

Every employer liable for workers’ compensation benefits under Chapter 440 shall secure the provision of such benefits. Sec. 440.10(1)(a) and 440.38, Fla. Stat. An employer with fewer than four (4) employees may elect not to secure benefits. Sec. 440.055, Fla. Stat.

Failure to Secure Coverage

Any employer that fails to secure coverage for benefits under Chapter 440 shall be precluded from defending a suit to recover damages for injury or death on the basis of negligence by a fellow servant, assumption of risk by the injured employee, or comparative negligence of the employee. Sec. 440.06, Fla. Stat.

If an employer fails to secure coverage for benefits under Chapter 440, an injured employee may elect to claim benefits under Chapter 440 or to maintain an action at law for damages on account of the injury or death. Sec. 440.11(1)(a), Fla. Stat.