1. Amendments to §440.02, §440.05, §440.110, and §440.107.
These amendments restrict construction exemptions to commercial projects under $250,000.00 and all residential projects. For any commercial project which is valued over $250,000.00, a construction exemption is not allowed. These amendments also mandate certain requirements regarding specific record keeping and certification in order to be eligible for a construction exemption. The sole proprietor, partner, or officer of a corporation in the construction industry must maintain business records specified by the Division, including the previous three years of federal income tax returns, in order to obtain an exemption.
2. Amendments to §440.13.
A. Fees charged for Independent Medical Examinations are no longer controlled by the workers’ compensation fee schedule. Therefore, this should correct the problem identified by the First District Court of Appeal in the Napier decision, and allow IMEs which cost more than $400.00.
B. Clarification has been made with regard to the opting out of managed care. Such opting out is retroactive without regard to the date of accident.
C. The three-member panel through the Department of Insurance is required to perform a study which will include testimony, review of records, and collection of data to evaluate the adequacy of the workers’ compensation medical fee schedule. This study must be completed and reported to the Legislature with recommendations on or before January 1, 2003. This provision will allow the Legislature to review and assess accurate data as to the payment of medical fees and adjustment of the medical fee reimbursement schedule, and will require the Legislature to address the medical fee schedule next year.
3. Amendment to §440.191.
This bill removes the requirement that a Request for Assistance must be filed before a Petition for Benefits is served. Therefore, the informal dispute resolution process does not need to be exhausted in order to file a Petition for Benefits. The procedure for resolving disputes shall be the filing of a Petition for Benefits after which the Carrier or Employer shall have 30 days upon receipt to respond with either acceptance or denial of that Petition for Benefits.
4. Amendments to §440.25.
A. Mediation Conferences must be held within 90 days of the filing of the Petition for Benefits. The Judge shall notify the parties regarding the mediation by Order. Continuances may be granted only if the requesting party demonstrates to the Judge of Compensation Claims that the reason for the continuance arises from circumstances beyond the party’s control.
B. Pretrial stipulations must be completed before the Mediation Conference concludes on any issues which are not resolved. The Judge may order a Pretrial Hearing if the parties fail to agree at mediation, and the Final Hearing date must be set by the Judge to allow at least 60 days to conduct discovery. The Final Hearing must be held within 90 days after the Mediation Conference.
C. The doctrine of res judicata has been codified to provide that any benefit that was ripe, due, and owing at the time of the Final Hearing, but not raised at the Final Hearing, is waived and cannot be raised again.
D. Petitions for Benefits concerning determination of pay shall be resolved without oral hearing unless a hearing is ordered by the Judge. This should minimize discovery with regard to the depositions of payroll custodians and employer representatives concerning average weekly wage and concurrent earnings.
E. A medical claim, raised in a Petition, for $5,000.00 or less, or for medical mileage shall, in the absence of compelling evidence to the contrary, be resolved through the expedited dispute resolution process. This expedited dispute resolution process shall be guided by rule or order from the Deputy Chief Judge. This process requires that all argument and presentation of evidence at the hearing shall not exceed 30 minutes, and the hearing shall not exceed 30 minutes in length.
5. Amendments to §440.34.
Attorney’s fees will not attach until 30 days from the date the Petition is received by the Carrier or Employer. Furthermore, §440.34(3)(a) has been clarified to reflect that attorney’s fees may be recovered if the Claimant successfully asserts a “petition” for medical benefits only. This should clarify issues raised in the AMC Theaters vs. Tyrone Square case.
6. Finally, the Department of Insurance, with the Board of Governors of the Joint Underwriting Association, shall conduct a study to determine whether the insurance market is capable of meeting the needs for coverage among construction industry employers, and whether such market will provide an adequate and fair insurance product to those employers. This report with recommendations must be submitted to the Legislature before February 1, 2003. This report will allow the Legislature to determine whether, if exemptions are removed in the construction industry, those individuals who will no longer be able to maintain an exemption may be able to afford adequate workers’ compensation coverage
Assuming the governor signs this bill into law, it shall take effect July 1, 2002. This bill has been reviewed by the National Conference Council on Compensation Insurance, Inc., who has rendered a report that the overall fiscal impact is negligible and should not have any effect on premiums.
This bill streamlines procedures in workers’ compensation litigation. It also addresses two areas that have been of major contention over the years: construction exemptions and medical fee reimbursement. Based on the studies that are required to be performed by this legislation, the Legislature will have the opportunity next year to address at least those two issues. It is likely then that workers’ compensation will be on the agenda for the regular session of the 2003 Legislature when it meets again in March of 2003.
The attorneys of our law firm stand willing to provide any clarification or explanation of these changes. Please do not hesitate to contact us with any questions or concerns.
April 19, 2002.
