Fla. Stat. § 440.20 : Labor — Workers' Compensation — Time for payment of compensation and medical bills; penalties for late payment

Current through Chapter 269 of the 2016 Legislative Session

(1)

(a) Unless the carrier denies compensability or entitlement to benefits, the carrier shall pay compensation directly to the employee as required by ss. 440.14, 440.15, and 440.16, in accordance with those sections. Upon receipt of the employee's authorization as provided for in s. 440.12(1)(a), the carrier's obligation to pay compensation directly to the employee is satisfied when the carrier directly deposits, by electronic transfer or other means, compensation into the employee's account at a financial institution as defined in s. 655.005 or onto a prepaid card in accordance with s. 440.12(1). Compensation by direct deposit or through the use of a prepaid card is considered paid on the date the funds become available for withdrawal by the employee.

(b) Notwithstanding any other provision of this chapter, all insurance carriers, group self-insurance funds, assessable mutual insurers, and the Joint Underwriting Association authorized to write workers' compensation insurance in this state shall make available a notice in writing to the employer the fact that a state-authorized deductible plan is available. Under this plan, an employer may pay, for each injury for which an employee files a claim under this chapter as a deductible, up to the first $2,500 of the total amount payable under compensable claims related to such injury. An employer shall not be reimbursed for any amount paid under this paragraph; however, the reporting requirements of the employer, relating to injuries required under any provision under this chapter, are not altered or alleviated. The rate base of any workers' compensation insurance offered pursuant to this chapter shall include the deductible provision authorized by this paragraph. Any amounts paid by an employer pursuant to this paragraph shall not apply in any way to such employer's experience rating for injury.

(2)

(a) The carrier must pay the first installment of compensation for total disability or death benefits or deny compensability no later than the 14th calendar day after the employer receives notification of the injury or death, when disability is immediate and continuous for 8 calendar days or more after the injury. If the first 7 days after disability are nonconsecutive or delayed, the first installment of compensation is due on the 6th day after the first 8 calendar days of disability. The carrier shall thereafter pay compensation in biweekly installments or as otherwise provided in s. 440.15, unless the judge of compensation claims determines or the parties agree that an alternate installment schedule is in the best interests of the employee.

(b) The carrier must pay, disallow, or deny all medical, dental, pharmacy, and hospital bills submitted to the carrier in accordance with department rule no later than 45 calendar days after the carrier's receipt of the bill.

(3) Upon making initial payment of indemnity benefits, or upon suspension or cessation of payment for any reason, the carrier shall immediately notify the injured employee, the employer, and the department that it has commenced, suspended, or ceased payment of compensation. The department may require such notification to the injured employee, employer, and the department in a format and manner it deems necessary to obtain accurate and timely notification.

(4) If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee's entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period. The initial provision of compensation or benefits, for purposes of this subsection, means the first installment of compensation or benefits to be paid by the carrier under subsection (2) or pursuant to a petition for benefits under s. 440.192(8).

(5) If the employer has advanced compensation payments or benefits to the employee, the carrier shall reimburse the employer for the advanced payments if the employee is entitled to compensation and benefits pursuant to this chapter. The carrier may deduct such reimbursements from the employee's compensation installments or, if applicable, from payments to the employee ordered by a judge of compensation claims.

(6)

(a) If any installment of compensation for death or dependency benefits, or compensation for disability benefits payable without an award is not paid within 7 days after it becomes due, as provided in subsection (2), subsection (3), or subsection (4), there shall be added to such unpaid installment a penalty of an amount equal to 20 percent of the unpaid installment, which shall be paid at the same time as, but in addition to, such installment of compensation. This penalty shall not apply for late payments resulting from conditions over which the employer or carrier had no control. When any installment of compensation payable without an award has not been paid within 7 days after it became due and the claimant concludes the prosecution of the claim before a judge of compensation claims without having specifically claimed additional compensation in the nature of a penalty under this section, the claimant will be deemed to have acknowledged that, owing to conditions over which the employer or carrier had no control, such installment could not be paid within the period prescribed for payment and to have waived the right to claim such penalty. However, during the course of a hearing, the judge of compensation claims shall on her or his own motion raise the question of whether such penalty should be awarded or excused. The department may assess without a hearing the penalty against either the employer or the carrier, depending upon who was at fault in causing the delay. The insurance policy cannot provide that this sum will be paid by the carrier if the department or the judge of compensation claims determines that the penalty should be paid by the employer rather than the carrier. Any additional installment of compensation paid by the carrier pursuant to this section shall be paid directly to the employee by check or, if authorized by the employee, by direct deposit into the employee's account at a financial institution.

(b) For medical services provided on or after January 1, 2004, the department shall require that all medical, hospital, pharmacy, or dental bills properly submitted by the provider, except for bills that are disallowed or denied by the carrier or its authorized vendor in accordance with department rule, are timely paid within 45 calendar days after the carrier's receipt of the bill. The department shall impose penalties for late payments or disallowances or denials of medical, hospital, pharmacy, or dental bills that are below a minimum 95 percent timely performance standard. The carrier shall pay to the Workers' Compensation Administration Trust Fund a penalty of:

1. Twenty-five dollars for each bill below the 95 percent timely performance standard, but meeting a 90 percent timely standard.

2. Fifty dollars for each bill below a 90 percent timely performance standard.

(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.

(8)

(a) In addition to any other penalties provided by this chapter for late payment, if any installment of compensation is not paid when it becomes due, the employer, carrier, or servicing agent shall pay interest thereon at the rate of 12 percent per year from the date the installment becomes due until it is paid, whether such installment is payable without an order or under the terms of an order. The interest payment shall be the greater of the amount of interest due or $5.

(b) In order to ensure carrier compliance under this chapter, the department shall monitor, audit, and investigate the performance of carriers. The department shall require that all compensation benefits be timely paid in accordance with this section. The department shall impose penalties for late payments of compensation that are below a minimum 95-percent timely payment performance standard. The carrier shall pay to the Workers' Compensation Administration Trust Fund a penalty of:

1. Fifty dollars per number of installments of compensation below the 95-percent timely payment performance standard and equal to or greater than a 90-percent timely payment performance standard.

2. One hundred dollars per number of installments of compensation below a 90-percent timely payment performance standard.

This section does not affect the imposition of any penalties or interest due to the claimant. If a carrier contracts with a servicing agent to fulfill its administrative responsibilities under this chapter, the payment practices of the servicing agent are deemed the payment practices of the carrier for the purpose of assessing penalties against the carrier.

(9) The department may upon its own initiative at any time in a case in which payments are being made without an award investigate same and shall, in any case in which the right to compensation is controverted, or in which payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation or from the employer that the right to compensation is controverted or that payments of compensation have been stopped or suspended, make such investigations, cause such medical examination to be made, or hold such hearings, and take such further action as it considers will properly protect the rights of all parties.

(10) Whenever the department deems it advisable, it may require any employer to make a deposit with the Chief Financial Officer to secure the prompt and convenient payments of such compensation; and payments therefrom upon any awards shall be made upon order of the department or judge of compensation claims.

(11)

(a) When a claimant is not represented by counsel, upon joint petition of all interested parties, a lump-sum payment in exchange for the employer's or carrier's release from liability for future medical expenses, as well as future payments of compensation expenses and any other benefits provided under this chapter, shall be allowed at any time in any case in which the employer or carrier has filed a written notice of denial within 120 days after the employer receives notice of the injury, and the judge of compensation claims at a hearing to consider the settlement proposal finds a justiciable controversy as to legal or medical compensability of the claimed injury or the alleged accident. The employer or carrier may not pay any attorney's fees on behalf of the claimant for any settlement under this section unless expressly authorized elsewhere in this chapter. Upon the joint petition of all interested parties and after giving due consideration to the interests of all interested parties, the judge of compensation claims may enter a compensation order approving and authorizing the discharge of the liability of the employer for compensation and remedial treatment, care, and attendance, as well as rehabilitation expenses, by the payment of a lump sum. Such a compensation order so entered upon joint petition of all interested parties is not subject to modification or review under s. 440.28. If the settlement proposal together with supporting evidence is not approved by the judge of compensation claims, it shall be considered void. Upon approval of a lump-sum settlement under this subsection, the judge of compensation claims shall send a report to the Chief Judge of the amount of the settlement and a statement of the nature of the controversy. The Chief Judge shall keep a record of all such reports filed by each judge of compensation claims and shall submit to the Legislature a summary of all such reports filed under this subsection annually by September 15.

(b) When a claimant is not represented by counsel, upon joint petition of all interested parties, a lump-sum payment in exchange for the employer's or carrier's release from liability for future medical expenses, as well as future payments of compensation and rehabilitation expenses, and any other benefits provided under this chapter, may be allowed at any time in any case after the injured employee has attained maximum medical improvement. An employer or carrier may not pay any attorney's fees on behalf of the claimant for any settlement, unless expressly authorized elsewhere in this chapter. A compensation order so entered upon joint petition of all interested parties shall not be subject to modification or review under s. 440.28. However, a judge of compensation claims is not required to approve any award for lump-sum payment when it is determined by the judge of compensation claims that the payment being made is in excess of the value of benefits the claimant would be entitled to under this chapter. The judge of compensation claims shall make or cause to be made such investigations as she or he considers necessary, in each case in which the parties have stipulated that a proposed final settlement of liability of the employer for compensation shall not be subject to modification or review under s. 440.28, to determine whether such final disposition will definitely aid the rehabilitation of the injured worker or otherwise is clearly for the best interests of the person entitled to compensation and, in her or his discretion, may have an investigation made. The joint petition and the report of any investigation so made will be deemed a part of the proceeding. An employer shall have the right to appear at any hearing pursuant to this subsection which relates to the discharge of such employer's liability and to present testimony at such hearing. The carrier shall provide reasonable notice to the employer of the time and date of any such hearing and inform the employer of her or his rights to appear and testify. The probability of the death of the injured employee or other person entitled to compensation before the expiration of the period during which such person is entitled to compensation shall, in the absence of special circumstances making such course improper, be determined in accordance with the most recent United States Life Tables published by the National Office of Vital Statistics of the United States Department of Health and Human Services. The probability of the happening of any other contingency affecting the amount or duration of the compensation, except the possibility of the remarriage of a surviving spouse, shall be disregarded. As a condition of approving a lump-sum payment to a surviving spouse, the judge of compensation claims, in the judge of compensation claims' discretion, may require security which will ensure that, in the event of the remarriage of such surviving spouse, any unaccrued future payments so paid may be recovered or recouped by the employer or carrier. Such applications shall be considered and determined in accordance with s. 440.25.

(c) Notwithstanding s. 440.21(2), when a claimant is represented by counsel, the claimant may waive all rights to any and all benefits under this chapter by entering into a settlement agreement releasing the employer and the carrier from liability for workers' compensation benefits in exchange for a lump-sum payment to the claimant. The settlement agreement requires approval by the judge of compensation claims only as to the attorney's fees paid to the claimant's attorney by the claimant. The parties need not submit any information or documentation in support of the settlement, except as needed to justify the amount of the attorney's fees. Neither the employer nor the carrier is responsible for any attorney's fees relating to the settlement and release of claims under this section. Payment of the lump-sum settlement amount must be made within 14 days after the date the judge of compensation claims mails the order approving the attorney's fees. Any order entered by a judge of compensation claims approving the attorney's fees as set out in the settlement under this subsection is not considered to be an award and is not subject to modification or review. The judge of compensation claims shall report these settlements to the Deputy Chief Judge in accordance with the requirements set forth in paragraphs (a) and (b). Settlements entered into under this subsection are valid and apply to all dates of accident.

(d)

1. With respect to any lump-sum settlement under this subsection, a judge of compensation claims must consider at the time of the settlement, whether the settlement allocation provides for the appropriate recovery of child support arrearages. An employer or carrier does not have a duty to investigate or collect information regarding child support arrearages.

2. When reviewing any settlement of lump-sum payment pursuant to this subsection, judges of compensation claims shall consider the interests of the worker and the worker's family when approving the settlement, which must consider and provide for appropriate recovery of past due support.

3. With respect to any lump-sum settlement under this subsection, any correspondence to a clerk of the circuit court of this state regarding child support documentation shall be exempt from any fees or costs ordinarily assessed by the clerk's office.

(e) This section applies to all claims that the parties have not previously settled, regardless of the date of accident.

(12)

(a) Liability of an employer for future payments of compensation may not be discharged by advance payment unless prior approval of a judge of compensation claims has been obtained as hereinafter provided. The approval shall not constitute an adjudication of the claimant's percentage of disability.

(b) When the claimant has reached maximum recovery and returned to her or his former or equivalent employment with no substantial reduction in wages, such approval of a reasonable advance payment of a part of the compensation payable to the claimant may be given informally by letter by a judge of compensation claims.

(c) In the event the claimant has not returned to the same or equivalent employment with no substantial reduction in wages or has suffered a substantial loss of earning capacity or a physical impairment, actual or apparent:

1. An advance payment of compensation not in excess of $2,000 may be approved informally by letter, without hearing, by any judge of compensation claims or the Chief Judge.

2. An advance payment of compensation not in excess of $2,000 may be ordered by any judge of compensation claims after giving the interested parties an opportunity for a hearing thereon pursuant to not less than 10 days' notice by mail, unless such notice is waived, and after giving due consideration to the interests of the person entitled thereto. When the parties have stipulated to an advance payment of compensation not in excess of $2,000, such advance may be approved by an order of a judge of compensation claims, with or without hearing, or informally by letter by any such judge of compensation claims, if such advance is found to be for the best interests of the person entitled thereto.

3. When the parties have stipulated to an advance payment in excess of $2,000, such payment may be approved by a judge of compensation claims by order if the judge finds that such advance payment is for the best interests of the person entitled thereto and is reasonable under the circumstances of the particular case. The judge of compensation claims shall make or cause to be made such investigations as she or he considers necessary concerning the stipulation and, in her or his discretion, may have an investigation of the matter made. The stipulation and the report of any investigation shall be deemed a part of the record of the proceedings.

(d) When an application for an advance payment in excess of $2,000 is opposed by the employer or carrier, it shall be heard by a judge of compensation claims after giving the interested parties not less than 10 days' notice of such hearing by mail, unless such notice is waived. In her or his discretion, the judge of compensation claims may have an investigation of the matter made, in which event the report and recommendation will be deemed a part of the record of the proceedings. If the judge of compensation claims finds that such advance payment is for the best interests of the person entitled to compensation, will not materially prejudice the rights of the employer and carrier, and is reasonable under the circumstances of the case, she or he may order the same paid. However, in no event may any such advance payment under this paragraph be granted in excess of $7,500 or 26 weeks of benefits in any 48-month period, whichever is greater, from the date of the last advance payment.

(13) If the employer has made advance payments of compensation, she or he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.

(14) When an employee is injured and the employer pays the employee's full wages or any part thereof during the period of disability, or pays medical expenses for such employee, and the case is contested by the carrier or the carrier and employer and thereafter the carrier, either voluntarily or pursuant to an award, makes a payment of compensation or medical benefits, the employer shall be entitled to reimbursement to the extent of the compensation paid or awarded, plus medical benefits, if any, out of the first proceeds paid by the carrier in compliance with such voluntary payment or award, provided the employer furnishes satisfactory proof to the judge of compensation claims of such payment of compensation and medical benefits. Any payment by the employer over and above compensation paid or awarded and medical benefits, pursuant to subsection (13), shall be considered a gratuity.

(15)

(a) The office shall examine on an ongoing basis claims files in accordance with s. 624.3161 and may impose fines pursuant to s. 624.310(5) and this chapter in order to identify questionable claims-handling techniques, questionable patterns or practices of claims, or a pattern of repeated unreasonably controverted claims by carriers, as defined in s. 440.02, providing services to employees pursuant to this chapter. If the office finds such questionable techniques, patterns, or repeated unreasonably controverted claims as constitute a general business practice of a carrier, as defined in s. 440.02, the office shall take appropriate action so as to bring such general business practices to a halt pursuant to s. 440.38(3) or may impose penalties pursuant to s. 624.4211. The department and office may initiate investigations of questionable techniques, patterns, practices, or repeated unreasonably controverted claims. The Financial Services Commission may by rule establish forms and procedures for corrective action plans and for auditing carriers.

(b) As to any examination, investigation, or hearing being conducted under this chapter, the department and office:

1. May administer oaths, examine and cross-examine witnesses, receive oral and documentary evidence; and

2. Shall have the power to subpoena witnesses, compel their attendance and testimony, and require by subpoena the production of books, papers, records, files, correspondence, documents, or other evidence which is relevant to the inquiry.

(c) If any person refuses to comply with any such subpoena or to testify as to any matter concerning which she or he may be lawfully interrogated, the Circuit Court of Leon County or of the county wherein such examination, investigation, or hearing is being conducted, or of the county wherein such person resides, may, on the application of the department or the office, issue an order requiring such person to comply with the subpoena and to testify.

(d) Subpoenas shall be served, and proof of such service made, in the same manner as if issued by a circuit court. Witness fees, costs, and reasonable travel expenses, if claimed, shall be allowed the same as for testimony in a circuit court.

(e) The department shall publish annually a report which indicates the promptness of first payment of compensation records of each carrier or self-insurer so as to focus attention on those carriers or self-insurers with poor payment records for the preceding year. The department and the office shall take appropriate steps so as to cause such poor carrier payment practices to halt pursuant to s. 440.38(3). In addition, the department shall take appropriate action so as to halt such poor payment practices of self-insurers. "Poor payment practice" means a practice of late payment sufficient to constitute a general business practice.

(f) The Financial Services Commission, in consultation with the department, shall adopt rules providing guidelines to carriers, as defined in s. 440.02, self-insurers, and employers to indicate behavior that may be construed as questionable claims-handling techniques, questionable patterns of claims, repeated unreasonably controverted claims, or poor payment practices.

(16) No penalty assessed under this section may be recouped by any carrier or self-insurer in the rate base, the premium, or any rate filing. The office shall enforce this subsection.

(17) The Financial Services Commission may by rule establish audit procedures and set standards for the Automated Carrier Performance System.

Fla. Stat. § 440.20

Amended by 2013 Fla. Laws, ch. 141,s 9, eff. 7/1/2013.

s. 20, ch. 17481, 1935; CGL 1936 Supp. 5966(20); s. 9, ch. 18413, 1937; s. 6, ch. 20672, 1941; s. 2, ch. 23921, 1947; s. 2, ch. 26877, 1951; s. 5, ch. 29778, 1955; s. 1, ch. 59-422; ss. 1, 2, ch. 65-203; s. 2, ch. 67-554; ss. 17, 35, ch. 69-106; s. 13, ch. 74-197; s. 11, ch. 75-209; s. 1, ch. 77-174; s. 5, ch. 77-290; ss. 7, 23, ch. 78-300; ss. 16, 124, ch. 79-40; ss. 12, 21, ch. 79-312; s. 179, ch. 79-400; s. 8, ch. 80-236; s. 277, ch. 81-259; s. 31, ch. 83-215; s. 8, ch. 83-305; s. 7, ch. 84-267; s. 9, ch. 86-171; s. 6, ch. 87-330; ss. 6, 7, ch. 88-203; ss. 16, 43, ch. 89-289; ss. 24, 56, ch. 90-201; ss. 22, 52, ch. 91-1; s. 30, ch. 91-46; s. 26, ch. 93-415; s.116, ch. 97-103; s.6, ch. 98-125; s.17, ch. 2001-91; s.48, ch. 2001-158; s.33, ch. 2002-194; s.53, ch. 2003-1; s.481, ch. 2003-261; s.24, ch. 2003-412; s.2, ch. 2011-174; s.35, ch. 2011-194.