June 05, 2020
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       Florida Senate - 2009                                    SB 2280
       By Senator Gelber
       35-01727-09                                           20092280__
    1                        A bill to be entitled                      
    2         An act relating to workers' compensation; amending s.
    3         440.105, F.S.; deleting provisions prohibiting
    4         payments for services in connection with a worker's
    5         compensation claim which are not approved by a judge
    6         of compensation claims; amending s. 440.34, F.S.;
    7         deleting provisions prohibiting a judge of
    8         compensation claims from approving the payment of
    9         attorney's fees in excess of certain amounts;
   10         providing that ch. 440, F.S., does not impair the
   11         right of a claimant to contract with an attorney;
   12         deleting provisions prohibiting a judge of
   13         compensation claims from approving a retainer
   14         agreement that permits placing an employee's
   15         compensation into an escrow account until benefits
   16         have been paid; deleting a provisions authorizing a
   17         judge of compensation claims to approve a limited
   18         amount of alternative attorney's fee; amending s.
   19         440.491, F.S.; authorizing additional training and
   20         education benefits for employees who have attained
   21         maximum medical improvement; providing an effective
   22         date.
   24  Be It Enacted by the Legislature of the State of Florida:
   26         Section 1. Subsection (3) of section 440.105, Florida
   27  Statutes, is amended to read:
   28         440.105 Prohibited activities; reports; penalties;
   29  limitations.—
   30         (3) Any person who Whoever violates any provision of this
   31  subsection commits a misdemeanor of the first degree, punishable
   32  as provided in s. 775.082 or s. 775.083.
   33         (a) It shall be unlawful for any employer to knowingly fail
   34  to update applications for coverage as required by s. 440.381(1)
   35  and department rules within 7 days after the reporting date for
   36  any change in the required information, or to post notice of
   37  coverage pursuant to s. 440.40.
   38         (b) It shall be unlawful for any employer to knowingly
   39  participate in the creation of the employment relationship in
   40  which the employee has used any false, fraudulent, or misleading
   41  oral or written statement as evidence of identity.
   42         (c)It is unlawful for any attorney or other person, in his
   43  or her individual capacity or in his or her capacity as a public
   44  or private employee, or for any firm, corporation, partnership,
   45  or association to receive any fee or other consideration or any
   46  gratuity from a person on account of services rendered for a
   47  person in connection with any proceedings arising under this
   48  chapter, unless such fee, consideration, or gratuity is approved
   49  by a judge of compensation claims or by the Deputy Chief Judge
   50  of Compensation Claims.
   51         Section 2. Section 440.34, Florida Statutes, is amended to
   52  read:
   53         440.34 Attorney's fees; costs.—
   54         (1) Except as otherwise provided in this chapter, a fee,
   55  gratuity, or other consideration may not be paid for a claimant
   56  in connection with any proceedings arising under this chapter,
   57  unless approved as reasonable by the judge of compensation
   58  claims or court having jurisdiction over such proceedings. Any
   59  attorney's fee approved by a judge of compensation claims for
   60  benefits secured on behalf of a claimant must equal to 20
   61  percent of the first $5,000 of the amount of the benefits
   62  secured, 15 percent of the next $5,000 of the amount of the
   63  benefits secured, 10 percent of the remaining amount of the
   64  benefits secured to be provided during the first 10 years after
   65  the date the claim is filed, and 5 percent of the benefits
   66  secured after 10 years. The judge of compensation claims shall
   67  not approve a compensation order, a joint stipulation for lump
   68  sum settlement, a stipulation or agreement between a claimant
   69  and his or her attorney, or any other agreement related to
   70  benefits under this chapter that provides for an attorney's fee
   71  in excess of the amount permitted by this section. The judge of
   72  compensation claims is not required to approve any retainer
   73  agreement between the claimant and his or her attorney. The
   74  retainer agreement as to fees and costs may not be for
   75  compensation in excess of the amount allowed under this section.
   76         (2) In awarding a claimant's attorney's fee, the judge of
   77  compensation claims shall consider only those benefits secured
   78  by the attorney. An attorney is not entitled to attorney's fees
   79  for representation in any issue that was ripe, due, and owing
   80  and that reasonably could have been addressed, but was not
   81  addressed, during the pendency of other issues for the same
   82  injury. The amount, statutory basis, and type of benefits
   83  obtained through legal representation shall be listed on all
   84  attorney's fees awarded by the judge of compensation claims. For
   85  purposes of this section, the term “benefits secured” does not
   86  include future medical benefits to be provided on any date more
   87  than 5 years after the date the claim is filed. In the event an
   88  offer to settle an issue pending before a judge of compensation
   89  claims, including attorney's fees as provided for in this
   90  section, is communicated in writing to the claimant or the
   91  claimant's attorney at least 30 days prior to the trial date on
   92  such issue, for purposes of calculating the amount of attorney's
   93  fees to be taxed against the employer or carrier, the term
   94  “benefits secured” shall be deemed to include only that amount
   95  awarded to the claimant above the amount specified in the offer
   96  to settle. If multiple issues are pending before the judge of
   97  compensation claims, said offer of settlement shall address each
   98  issue pending and shall state explicitly whether or not the
   99  offer on each issue is severable. The written offer shall also
  100  unequivocally state whether or not it includes medical witness
  101  fees and expenses and all other costs associated with the claim.
  102         (3) If any party should prevail in any proceedings before a
  103  judge of compensation claims or court, there shall be taxed
  104  against the nonprevailing party the reasonable costs of such
  105  proceedings, not to include attorney's fees. A claimant shall be
  106  responsible for the payment of her or his own attorney's fees,
  107  except that a claimant shall be entitled to recover a reasonable
  108  attorney's fee from a carrier or employer:
  109         (a) Against whom she or he successfully asserts a petition
  110  for medical benefits only, if the claimant has not filed or is
  111  not entitled to file at such time a claim for disability,
  112  permanent impairment, wage-loss, or death benefits, arising out
  113  of the same accident;
  114         (b) In any case in which the employer or carrier files a
  115  response to petition denying benefits with the Office of the
  116  Judges of Compensation Claims and the injured person has
  117  employed an attorney in the successful prosecution of the
  118  petition;
  119         (c) In a proceeding in which a carrier or employer denies
  120  that an accident occurred for which compensation benefits are
  121  payable, and the claimant prevails on the issue of
  122  compensability; or
  123         (d) In cases where the claimant successfully prevails in
  124  proceedings filed under s. 440.24 or s. 440.28.
  126  Regardless of the date benefits were initially requested,
  127  attorney's fees shall not attach under this subsection until 30
  128  days after the date the carrier or employer, if self-insured,
  129  receives the petition.
  130         (4) In such cases in which the claimant is responsible for
  131  the payment of her or his own attorney's fees, such fees are a
  132  lien upon compensation payable to the claimant, notwithstanding
  133  s. 440.22.
  134         (5) If any proceedings are had for review of any claim,
  135  award, or compensation order before any court, the court may
  136  award the injured employee or dependent an attorney's fee to be
  137  paid by the employer or carrier, in its discretion, which shall
  138  be paid as the court may direct.
  139         (6) This chapter does not impair the right of a claimant to
  140  contract with an attorney for representation in connection with
  141  a claim filed under this chapter. A judge of compensation claims
  142  may not enter an order approving the contents of a retainer
  143  agreement that permits the escrowing of any portion of the
  144  employee's compensation until benefits have been secured.
  145         (7)If an attorney's fee is owed under paragraph (3)(a),
  146  the judge of compensation claims may approve an alternative
  147  attorney's fee not to exceed $1,500 only once per accident,
  148  based on a maximum hourly rate of $150 per hour, if the judge of
  149  compensation claims expressly finds that the attorney's fee
  150  amount provided for in subsection (1), based on benefits
  151  secured, fails to fairly compensate the attorney for disputed
  152  medical-only claims as provided in paragraph (3)(a) and the
  153  circumstances of the particular case warrant such action.
  154         Section 3. Subsection (6) of section 440.491, Florida
  155  Statutes, is amended to read:
  156         440.491 Reemployment of injured workers; rehabilitation.—
  157         (6) TRAINING AND EDUCATION.—
  158         (a) Upon referral of an injured employee by the carrier, or
  159  upon the request of an injured employee, the department shall
  160  conduct a training and education screening to determine whether
  161  it should refer the employee for a vocational evaluation and, if
  162  appropriate, approve training and education or other vocational
  163  services for the employee. The department may not approve formal
  164  training and education programs unless it determines, after
  165  consideration of the reemployment assessment, pertinent
  166  reemployment status reviews or reports, and such other relevant
  167  factors as it prescribes by rule, that the reemployment plan is
  168  likely to result in return to suitable gainful employment. The
  169  department is authorized to expend moneys from the Workers'
  170  Compensation Administration Trust Fund, established by s.
  171  440.50, to secure appropriate training and education at a
  172  community college as designated in s. 1000.21(3) or at a career
  173  center established under s. 1001.44, or to secure other
  174  vocational services when necessary to satisfy the recommendation
  175  of a vocational evaluator. As used in this paragraph,
  176  “appropriate training and education” includes securing a general
  177  education diploma (GED), if necessary. The department shall
  178  establish training and education standards pertaining to
  179  employee eligibility, course curricula and duration, and
  180  associated costs.
  181         (b) When an employee who has attained maximum medical
  182  improvement is unable to earn at least 80 percent of the
  183  compensation rate and requires training and education to obtain
  184  suitable gainful employment, the employer or carrier shall pay
  185  the employee additional training and education temporary total
  186  compensation benefits while the employee receives such training
  187  and education for a period not to exceed 26 weeks, which period
  188  may be extended for an additional 26 weeks or less, if such
  189  extended period is determined to be necessary and proper by a
  190  judge of compensation claims. The benefits provided under this
  191  paragraph shall be calculated in the same manner as temporary
  192  total disability benefits under s. 440.15(2). The benefits are
  193  not be in addition to the 104 weeks as specified in s.
  194  440.15(2). However, a carrier or employer is not precluded from
  195  voluntarily paying additional temporary total disability
  196  compensation beyond that period. If an employee requires
  197  temporary residence at or near a facility or an institution
  198  providing training and education which is located more than 50
  199  miles away from the employee's customary residence, the
  200  reasonable cost of board, lodging, or travel must be borne by
  201  the department from the Workers' Compensation Administration
  202  Trust Fund established by s. 440.50. An employee who refuses to
  203  accept training and education that is recommended by the
  204  vocational evaluator and considered necessary by the department
  205  will forfeit any additional training and education benefits and
  206  any additional payment for lost wages under this chapter. The
  207  department shall adopt rules to implement this section, which
  208  shall include requirements placed upon the carrier to notify the
  209  injured employee of the availability of training and education
  210  benefits as specified in this chapter. The department shall also
  211  include information regarding the eligibility for training and
  212  education benefits in informational materials specified in ss.
  213  440.207 and 440.40.
  214         Section 4. This act shall take effect July 1, 2009.

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