F.S.1979 WORKERS' COMPENSATION Ch. 440

weekly compensation rate set forth in s. 440.12(2). Such additional benefits shall be paid out of the Workers' Compensation 1Administration Trust Fund. This applies to payments due after October 1, 1974.

2.a. The division shall provide by rule for the periodic reporting to the division of all earnings of any nature and social security income by the injured employee entitled to or claiming additional compen­sation under subparagraph 1. Neither the division nor the employer or carrier shall make any payment of those additional benefits provided by subpara­graph 1. for any period during which the employee willfully fails or refuses to report upon request by the division in the manner prescribed by said rules.

b. The division shall provide by rule for the peri­odic reporting to the employer or carrier of all earn­ings of any nature and social security income by the injured employee entitled to or claiming benefits for permanent total disability. The employer or carrier shall not be required to make any payment ofbene­fits for permanent total disability for any period dur­ing which the employee willfully fails or refuses to report upon request by the employer or carrier in the manner prescribed by said rules.

(2) TEMPORARY TOTAL DISABILITY.-(a) In case of disability total in character but

temporary in quality, 66% percent of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed 350 weeks except as provided in s. 440.12(1).

(b) Notwithstanding the provisions of paragraph (a), an employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system, or has lost the sight ofboth eyes shall be paid temporary total disability of 80 percent of his aver­age weekly wage until such employee has completed his training in the use of artificial members or appli­ances as. necessary and completed training or educa­tion under a rehabilitative program pursuant to s. 440.49, if provided. In no event should the increased temporary total disability compensation provided for in this paragraph extend beyond 6 months from the date of injury. The compensation provided by this paragraph is not subject to the limits provided ins. 440.12(2), but instead is subject to a maximum weekly compensation rate of $400. 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 paragraph (a) and s. 440.49(1)(e). 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 s. 440.49(1)(e).

(3) PERMANENT IMPAIRMENT AND WAGE­LOSS BENEFITS.-

(a) Impairment benefits.-1. In case of permanent impairment due to am­

putation, loss of 80 percent or more of vision, after correction, or serious facial or head disfigurement resulting from an injury other than an injury enti-

tling the injured worker to permanent total disabili­ty benefits pursuant to subsection (1), there shall be paid to the injured worker the following:

a. Fifty dollars for each percent of permanent impairment of the body as a whole from 1 percent through 50 percent; and ·

b. One hundred dollars for each percent of per­manent impairment of the body as a whole for that portion in excess of 50 percent.

2. Once the employee has reached the date of maximum medical improvement, impairment bene­fits are due and payable within 20 days after the carrier has knowledge of the impairment.

3. In order to reduce litigation and establish more certainty and uniformity in the rating of per­manent impairment, the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medi­cally or scientifically demonstrable findings. The schedule shall be based on generally accepted medi­cal standards for determining impairment and may incorporate all or part of any one or more generally accepted schedules used for such purpose, such as the American Medical Association's Guides to the Evaluation of Permanent Impairment. On August 1, 1979, and pending the adoption, by rule, of a perma­nent schedule, Guides to the Evaluation of Perma­nent Impairment, copyright 1977, 1971, by the American Medical Association, shall be the tempo­rary schedule and shall be used for the purposes hereof.

(b) Wage-loss benefits.-1. Each injured worker who suffers any perma­

nent impairment, which permanent impairment is determined pursuant to the schedule adopted in ac­cordance with subparagraph 3. of paragraph (a), may be entitled to wage-loss benefits under this subsec­tion. Such benefits shall be based on actual wage-loss and shall not be subject to the minimum compensa­tion rate set forth ins. 440.12(2). Such wage-loss ben­efits shall be, subject to the maximum compensation rate as set forth in s. 440.12(2), equal to 95 percent of the difference between 85 percent of the em­ployee's average monthly wage and the salary, wages, and other remuneration the employee is able to earn after reaching maximum medical improve­ment, as compared on a monthly basis; however, the monthly wage-loss benefits shall not exceed an amount equal to 66% percent of the employee's aver­age monthly wage at the time of'injury. In order to simplify the comparison of the preinjury average monthly wage with the salary, wages, and other re­muneration the employee is able to earn after reach­ing maximum medical improvement, the division may by rule provide for the modification of the monthly comparison so as to coincide as closely as possible with the injured worker's pay periods.

2. The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, in­cluding earnings from sheltered employment. In the event the employee voluntarily limits his or her in­come or fails to accept employment commensurate with his or her abilities, the salary, wages! and other

901

Ch. 440 WORKERS' COMPENSATION F.S.1979

remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his or her in­come or accepted appropriate employment. Whenev­er a wage-loss benefit as set forth in subparagraph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury.

3. The right to wage-loss benefits shall termi­nate:

a. As ofthe end of any 2-year period commencing at any time subsequent to the month when the in­jured employee reaches the date of maximum medi­cal improvement, unless during such 2-year period wage-loss benefits shall have been payable during at least 3 consecutive months;

b. For injuries occurring on or before July 1, 1980, 350 weeks after the injured employee reaches the date of maximum medical improvement;

c. For injuries occurring after July 1, 1980, 525 weeks after the injured employee reaches maximum medical improvement; or

d. When the injured employee reaches age 65,

whichever comes first. · 4. When the injured employee reaches age 62,

wage-loss benefits shall be reduced by the total amount of social security retirement benefits which the employee is receiving, not to exceed 50 percent of the employee's wage-loss benefits.

5. Beginning with the 25th month after maxi­mum medical improvement and for the purpose of determining wage-loss benefits, the total wages, sal­ary, and other remuneration for the month in con­sideration shall be discounted as follows:

a . For those injuries occurring on or after July 1, 1979, and on or before July 1, 1980, by a factor of 3 percent and compounded annually at 3 percent thereafter; and

b. For those injuries occurring after July 1, 1980, by a factor of5 percent and compounded annually at 5 percent thereafter.

an amount equal to 66% percent of the employee's average monthly wage at the time of injury. In order to simplify the comparison of the preinjury average monthly wage with the salary, wages, and other re­muneration the employee is able to earn, the divi­sion may by rule provide for the modification of the monthly comparison so as to coincide as closely as possible with the injured worker's pay periods.

(b) The amount determined to be the salary, wages, and other remuneration the employee is able to earn shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment. In the event the em­ployee voluntarily limits his or her income or fails to accept employment commensurate with his or her abilities, the salary, wages, and other remuneration the employee is able to earn shall be deemed to be the amount which would have been earned if the employee did not limit his or her income or accepted appropriate employment. Whenever a wage-loss benefit as set forth in paragraph (a) may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensa­ble injury.

(c) Such benefits shall be paid during the contin­uance of such disability, not to exceed a period of 5 years.

(5) SUBSEQUENT INJURY.-(a) The fact that an employee has suffered previ­

ous disability, impairment, anomaly, or disease, or received compensation therefor, shall not preclude him from benefits for a subsequent injury nor pre­clude benefits for death resulting therefrom. Com­pensation for temporary disability, medical benefits, and wage-loss benefits shall not be subject to appor­tionment.

(b) If a compensable permanent impairment, or any portion thereof, is a result of aggravation or acceleration of a preexisting condition, or is the re­sult of merger with a preexisting impairment, an employee eligible to receive impairment benefits un­der paragraph (3)(a) shall receive such benefits for the total impairment found to result, excluding the degree of impairment existing at the time of the

However, with respect to any year in which the an- subject accident or injury or which would have exist­nual rate of inflation, calculated by using the Na- ed by the time of the impairment rating without the tional Consumer Price Index published by the Unit- intervention of the compensable accident or injury. ed States Department ofLabor, is less than the appli- The degree of permanent impairment attributable cable discount factor, such rate shall be substituted to the accident or injury shall be compensated in for such discount factor for that year. accordance with paragraph (3)(a). As used in this

6. The division shall keep such records and con- paragraph, "merger" means the combining of a pre­duct such investigations as are necessary to deter- existing permanent impairment with a subsequent mine the feasibility of providing additional protec- compensable permanent impairment which, when tion from inflation for workers entitled to wage-loss the effects of both are considered together, result in benefits and shall report its findings to the Legisla- a permanent impairment rating which is greater ture not later than March 1, 1981. than the sum of the two permanent impairments

(4) TEMPORARY PARTIAL DISABILITY.- ratings when each impairment is considered individ-(a) In case of temporary partial disability, bene- ually.

fits shall be based on actual wage loss and shall not (c) If an employee receiving wage-loss benefits be subject to the minimum compensation rate set suffers a subsequent injury causing temporary disa­forth ins. 440.12(2). The compensation shall be equal bility, both wage-loss benefits and temporary disabil­to 95 percent of the difference between 85 percent of ity benefits shall be payable during the duration of the employee's average monthly wage and the sala- temporary disability; however, the total benefits ry, wages, and other remuneration the employee is payable shall not exceed the maximum compensa­able to earn, as compared on a monthly basis; howev- tion rate in effect for temporary disability at the er, the monthly wage-loss benefits shall not exceed time of the subsequent injury. Any reduction in ben-

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F.S.1979 WORKERS' COMPENSATION Ch. 440

efits due to such limit shall be applied first to the wage-loss benefits payable as a result of the prior injury.

(d) If an employee receiving wage-loss benefits suffers a subsequent injury causing an additional compensable wage loss, benefits for each wage loss shall be payable; however, the total wage-loss bene­fits payable shall not exceed the maximum compen­sation rate in effect for permanent disability at the time of the subsequent injury. Any reduction in wage-loss benefits due to such limitation shall be applied first to the benefits payable as a result of the prior injury.

(6) HERNIA.-In all claims for compensation for hernia resulting from injury by an accident arising out of and in the course of employment, it must be proved to the satisfaction of the division:

(a) That there was an injury resulting in hernia. (b) That the hernia appeared suddenly. (c) That it was accompanied by pain. (d) That the hernia immediately followed an ac­

cident. (e) That the hernia did not exist prior to the acci­

dent for which compensation is claimed. (f) All hernia, inguinal, femoral, or otherwise, so

proved to be the result of an injury by accident aris­ing out of and in the course of the employment, shall be treated at the expense of the employer in a surgi­cal manner by radical operation. Compensation shall be paid for a period of6 weeks from the date of the operation. In case the injured employee refuses to undergo the radical operation for the cure of said hernia, no compensation will be allowed during the time of refusal. This shall not apply to those who by religious belief do not use medical or surgical treat­ment. If, however, it is shown that the employee had some chronic disease, or is otherwise in such physi­cal condition that the 2judge of industrial claims con­siders it unsafe for the employee to undergo said operation, the compensation shall be paid as other­wise provided in subsection (4), but not for exceeding 30 weeks. Compensation shall be allowed for tempo­rary total disability as provided by subsection (2) for such disability before the operation.

(7) EMPLOYEE REFUSES EMPLOYMENT.-If an injured employee refuses employment suitable to the capacity thereof, offered to or procured therefor, such employee shall not be entitled to any compensa­tion at any time during the continuance of such re­fusal unless at any time in the opinion of the 2judge of industrial claims such refusal is justifiable.

(8) EMPLOYEE LEAVES EMPLOYMENT.-If an injured employee, when receiving compensation for temporary partial disability, leaves the employ­ment of the employer by whom he was employed at the time of the accident for which such compensa­tion is being paid, he shall, upon securing employ­ment elsewhere, give to such former employer an affidavit in writing containing the name of his new employer, the place of employment and the amount of wages being received at such new employment and until he gives such affidavit the compensation for temporary partial disability will cease. The em­ployer by whom such employee was employed at the time of the accident for which such compensation is being paid may also at any time demand of such

employee additional affidavit in writing containing the name of his employer, the place of his employ­ment and the amount of wages he is receiving, and if the employee, upon such demand, fails or refuses to make and furnish such affidavit, his right to com­pensation for temporary partial disability shall cease until such affidavit is made and furnished .

(9) EMPLOYEE BECOMES INMATE OF INSTI­TUTION.-In case an employee who is permanently and totally disabled becomes an inmate of a public institution, then no compensation shall be payable unless he has dependent upon him for support a person or persons defined as dependents elsewhere in this chapter, whose dependency shall be deter­mined as if the employee were deceased and to whom compensation would be paid in case of death and such compensation as is due said employee shall be paid such dependents during the time he remains such inmate.

(10) EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER AND FEDERAL OLD­AGE, SURVIVORS, AND DISABILITY INSUR­ANCE ACT.-

(a) Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. s. 423 shall be reduced to an amount whereby the sum of such compensation benefits pay­able under this chapter and such total benefits oth­erwise payable for such period to the employee and his dependents, had such employee not been entitled to benefits under this chapter, under 42 U.S.C. ss. 423 and 402, does not exceed 80 percent of the em­ployee's average weekly wage. However, this provi­sion shall not operate to reduce an injured worker's benefits under this chapter to a greater extent than they would have otherwise been reduced under 42 U.S.C. s. 424(a). This reduction of compensation ben­efits shall not be applicable to any compensation benefits payable for any week subsequent to the week in which the injured worker reaches the age of 62 years.

(b) If the provisions of 42 U.S.C. s. 424(a) are amended to provide for a reduction or increase of the percentage of average current earnings that the sum of compensation benefits payable under this chapter and the benefits payable under 42 U.S.C. s. 423 and s. 402 can equal, the amount of the reduction ofbene­fits provided in this subsection shall be reduced or increased accordingly.

(c) No disability compensation benefits payable for any week, including those benefits provided by paragraph (l)(e), shall be reduced pursuant to this subsection until the Social Security Administration ·. determines the amount otherwise payable to the em­ployee under 42 U.S.C. ss. 423 and 402 and the em­ployee has begun receiving such social security bene­fit payments. The employee shall, upon demand by the division, the employer, or the carrier, authorize the Social Security Administration to release disa­bility information relating to him and authorize the Division of Employment Security to release unem­ployment compensation information relating to him in accordance with rules to be promulgated by the division prescribing the procedure and manner for requesting the authorization and for compliance by

903

Ch. 440 WORKERS' COMPENSATION F.S.1979

the employee. Neither the division nor the employer or carrier shall make any payment of benefits for total disability or those additional benefits provided by paragraph (1)(e) for any period during which the employee willfully fails or refuses to authorize the release of information in the manner and within the time prescribed by said rules. The authority for re­lease of disability information granted by an em­ployee under this paragraph shall be effective for a period not to exceed 12 months, such authority to be renewable as the division may prescribe by rule.

(11) EMPLOYEE ELIGIBLE FOR BENEFITS UNDER THIS CHAPTER WHO HAS RECEIVED OR IS ENTITLED TO RECEIVE UNEMPLOY­MENT COMPENSATION.-

(a) No compensation benefits shall be payable for temporary total disability or permanent total disa­bility under this chapter for any week in which the injured employee has received, or is receiving, unem­ployment compensation benefits.

(b) If an employee is entitled to both wage-loss benefits pursuant to subsection (3) and unemploy­ment compensation benefits, such unemployment compensation benefits shall be primary and the wage-loss benefits sha ll be supplemental only, the sum of the two benefits not to exceed the amount of wage-loss benefits which would otherwise be paya­ble. For purposes of termination of wage-loss bene­fits pursuant to sub-subparagraph (3)(b)3.a ., the term "payable" shall be construed to include pay­ment of unemployment compensation benefits in lieu of income supplement benefits as provided in this subsection.

History.- s. 15, ch. 17481, 1935; CGL 1936 Supp. 5966(15); s. 4, ch. 20672, 1941 ; s. 2, ch. 22814, 1945; s. 1, ch. 23921, 1947; s. 11, ch. 25035, 1949; s. 1, ch . 26877, 1951; s. 10, ch. 26484, 1951; s. 1, ch. 29803, 1955; s. 3, ch. 29778, 1955; s. 1, ch. 59-103; s. 1, ch. 59-102; s. 2, ch. 61-119; s. 1, ch. 61-188; s. 1, ch. 63-235; s. 1, ch. 65-168; ss. 17, 35, ch. 69-106; s. 1, ch . 70-71; s. 1, ch. 70-312; s. 5, ch . 73-127; s. 9, ch . 74-197; s. 6, ch. 75-209; s. 1, ch. 77-174; s. 4, ch. 77-290; ss. 5, 23, ch. 78-300; ss. 10, 124, ch. 79-40; ss. 8, 21, ch. 79-312.

'Note.- The word "Administration" was inserted by the editors to conform to the provisions of s. 440.50(1).

' Note.-See s. 35, ch. 79-40, which changed the title of judges of industrial claims to "deputy commissioners."

440.151 Occupational diseases.-(1)(a) Where the employer and employee are sub­

ject to the provisions of the Workers' Compensation Law, the disablement or death of an employee result­ing from an occupational disease as hereinafter de­fined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, his dependents shall be entitled to compensation as provided by this chapter, except as hereinafter oth­erwise provided; and the practice and procedure pre­scribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provi­sions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer and was actually contracted while so engaged, meaning by "nature of the employment" that to the occupation in which the employee was so engaged there is at­tached a particular hazard of such disease that dis­tinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so en-

gaged than in the usual run of occupations, or, in case of death, unless death follows continuous disa­bility from such disease, commencing within the pe­riod above limited, for which compensation has been paid or awarded, or timely claim made as provided in this section, and results within 350 weeks after such last exposure.

(b) No compensation shall be payable for an occu­pational disease ifthe employee, at the time of enter­ing into the employment of the employer by whom the compensation would otherwise be payable, false­ly represents himself in writing as not having previ­ously been disabled, laid off or compensated in dam­ages or otherwise, because of such disease.

(c) Where an occupational disease is aggravated by any other disease or infirmity, not itself compen­sable, or where disability or death from any other cause, not itself compensable, is aggravated, pro­longed, accelerated or in anywise contributed to by an occupational disease, the compensation payable shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disa­bility or death as such occupational disease, as a causative factor, bears to all the causes of such disa­bility or death, such reduction in compensation to be effected by reducing the number of weekly or month­ly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants.

(d) No compensation for death from an occupa­tional disease shall be payable to any person whose relationship to the deceased, which under the provi­sions ofthis Workers' Compensation Law would give right to compensation, arose subsequent to the be­ginning of the first compensable disability, save only to afterborn children of a marriage existing at the beginning of such disability.

(e) The presumptions in favor of claimants estab­lished by s. 440.26 of this Workers' Compensation Law shall not apply to a claim for compensation for an occupational disease under this section.

(f) No compensation shall be payable for disabili­ty or death resulting from tuberculosis arising out of and in the course of employment by the Division of Health of the Department of Health and Rehabili­tative Services at a state tuberculosis hospital, or aggravated by such employment, when the employee had suffered from said disease at any time prior to the commencement of such employment.

(2) Whenever used in this section the term "occu­pational disease" shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public.

(3) Except as hereinafter otherwise provided in this section, "disablement" means the event of an employee's becoming actually incapacitated, partial­ly or totally, because of an occupational disease, from performing his work in the last occupation in which injuriously exposed to the hazards of such dis-

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F.S.1979 WORKERS' COMPENSATION Ch. 440

ease; and "disability" means the state of being so incapacitated.

(4) This section shall not apply to cases of occupa­tional disease in which the last injurious exposure to the hazards of such disease occurred before this sec­tion shall have taken effect.

(5) Where compensation is payable for an occu­pational disease, the employer in whose employment the employee was last injuriously exposed to the haz­ards of such disease, and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any pri­or employer or insurance carrier; and the notice of injury and claim for compensation, as hereinafter required, shall be given and made to such employer; provided, however, that in case of disability from any dust disease the only employer and insurance carri­er liable shall be the last employer in whose employ­ment the employee was last injuriously exposed to the hazards of the disease for a period of at least 60 days.

(6) The time for notice of injury or death provid­ed in s. 440.185(1) shall be extended in cases of occu­pational diseases to a period of 90 days.

History.-8. 1, cb. 22852, 1945; 8. 1, ch. 23921, 1947; s. 11, cb. 25035, 1949; 8. 3, cb. 28241, 1953; 8. 1, ch. 65-116; ss. 19, 35, ch. 69-106; ss. 10, 24, ch. 74-197; 8. 23, ch. 78-300; ss. 11, 124, ch. 79-40; 8. 21, cb. 79-312.

440.152 Division to make study of occupa· tional diseases, etc.-The division shall make a continuous study of occupational diseases and the ways and means for their control and prevention; shall make and enforce necessary regulations for such control. For this purpose the division is author­ized to cooperate with employers, employees and car­riers and with the Department of Health and Reha­bilitative Services.

History.-8. 2, cb. 22852, 1945; 8. 1, ch. 23921, 1947; 88. 17, 19, 35, cb. 69-106; 8. 7, ch. 75-209; 8. 331, cb. 77-147; 8. 10, cb. 77-320; s. 23, ch. 78-300; 8. 124, cb. 79-40; s. 21, ch. 79-312.

440.16 Compensation for death.-(1) If death results from the accident within 1

year thereafter or follows continuous disability and results from the accident within 5 years thereafter, the employer shall pay:

(a) Actual funeral expenses not to exceed $1,000. (b) Compensation, in addition to the above, in the

following percentages of the average weekly wages to the following persons entitled thereto on account of dependency upon the deceased, and in the follow­ing order of preference, subject to the limitation pro­vided in subparagraph 2., but such compensation shall be subject to the limits provided ins. 440.12(2), shall not exceed $50,000, and may be less than, but shall not exceed, for all dependents or persons enti­tled to compensation, 66% percent of the average wage:

1. To the spouse, if there is no child, 50 percent of the average weekly wage, said compensation to cease upon the spouse's death or remarriage.

2. To the spouse, if there is a child or children, the compensation payable under subparagraph 1. and, in addition, 16% percent on account of the child or children. However, when the deceased is survived by a spouse and also a child or children, whether such child or children be the product of the union

existing at the time of death or of a former marriage or marriages, the deputy commissioner may provide for the payment of compensation in such manner as to the deputy commissioner may appear just and proper and for the best interests of the respective parties and, in so doing, may provide for the entire compensation to be paid exclusively to the child or children; and, in the case of death or remarriage of such spouse, 33Ya percent for each child.

3. To the child or children, if there is no spouse, 33Ya percent for each child.

4. To the parents, 25 percent to each, such com­pensation to be paid during the continuance of de­pendency.

5. To the brothers, sisters, and grandchildren, 15 percent for each brother, sister, or grandchild.

(2) For the purpose of this chapter the depend­ence of a spouse of a deceased employee shall termi­nate with remarriage. The dependence of a child, except a child physically or mentally incapacitated from earning a livelihood; shall terminate with the attainment of 18 years of age, with the attainment of22 years of age if a full-time student in an accredit­ed educational institution, or upon marriage.

(3) Where, because of the limitation in para­graph (1)(b), a person or class of persons cannot re­ceive the percentage of compensation specified as payable to or on account of such person or class, there shall be available to such person or class that proportion of such percentage as, when added to the total percentage payable to all persons having priori­ty of preference, will not exceed a total of said 66% percent, which proportion shall be paid:

(a) To such person; or (b) To such class, share and share alike, unless

the deputy commissioner determines otherwise in accordance with the provisions of subsection (4).

(4) If the deputy commissioner determines that payments in accordance with paragraph (3)(b) would provide no substantial benefit to any person of such class, the deputy commissioner may provide for the payment of such compensation to the person or per­sons within such class who the deputy commissioner considers will be most benefited by such payment.

(5) Upon the cessation of compensation under this section to any person, the compensation of the remaining persons entitled to compensation, for the unexpired part of the period during which their com­pensation is payable, shall be that which such per­sons would have received if they had been the only persons entitled to compensation at the time of the decedent's death. . (6) Relationship to the deceased giving right to

compensation under the provisions of this section must have existed at the time of the accident, save only in the case of afterborn children of the de­ceased.

(7) Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada shall be the same in amount as provided for residents, except that de­pendents in any foreign country shall be limited to surviving spouse and child or children, or ifthere be no surviving spouse or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for the period ofl year prior

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Ch. 440 WORKERS' COMPENSATION F.S.1979

to the date of the injury, and except that the deputy commissioner may, at the deputy commissioner's op­tion, or upon the application of the insurance carri­er, commute all future installments of compensation to be paid to such aliens by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as deter­mined by the deputy commissioner, and provided further that compensation to dependents referred to in this subsection shall in no case exceed $1,000.

History.-s. 16, ch. 17481, 1935; s. 7, ch. 18413, 1937; CGL 1936 Supp. 5966(16); s. 5, ch. 20672, 1941; s. 1, ch. 26966, 1951; ss. 4-6, ch. 28241, 1953; s. 1, ch. 57-143; s. 2, ch. 67-239; ss. 17, 35, ch. 69-106; s. 6, ch. 73-127; s. 11, ch. 74-197; s. 8, ch. 75-209; s. 23, ch. 78-300; ss. 12, 124, ch. 79-40; ss. 9, 21, ch. 79-312.

440.17 Guardian for minor or incompetent.­Prior to the filing of a claim, the division, and after the filing of a claim, a deputy commissioner, may require the appointment by a court of competent jurisdiction, for any person who is mentally incom­petent or a minor, of a guardian or other representa­tive to receive compensation payable to such person under this chapter and to exercise the powers grant­ed to or to perform the duties required of such person under this chapter; however, the deputy commis­sioner, in the deputy commissioner's discretion, may designate in the compensation award a person to whom payment of compensation may be paid for a minor or incompetent, in which event payment to such designated person shall discharge all liability for such compensation.

History.-s. 17, ch. 17481, 1935; CGL 1936 Supp. 5966(17); s. 8, ch. 18413, 1937; ss. 17, 35, ch. 69-106; s. 9, ch. 75-209; ss. 13, 124, ch. 79-40; s. 21, ch. 79-312.

440.185 Notice of injury or death; reports; penalties for violations.-

(!) Within 30 days after the date of injury, the employee shall give notice of such injury to the em­ployer and to the division. However, failure to give such notice shall not be a bar to any claim under this chapter unless objection to such failure is raised be­fore the deputy commissioner at the first hearing of a claim for compensation in respect to such injury or death, and if:

(a) The employer or the agent thereof in charge of the business in the place where the injury oc­curred or the carrier had knowledge of the injury and the deputy commissioner determines that the employer or carrier has not been prejudiced by the employee's failure to give such notice; or

(b) The deputy commissioner excuses such fail­ure on the ground that for some satisfactory reason such notice could not be given. However, when the delay in giving notice is so excused, no compensation shall be payable for aggravation of the injury caused by want of "first aid" or proper medical treatment during such delay, and every presumption shall be against the validity of the claim.

(2) Within 7 days of actual knowledge of injury or death, the employer shall report same to the carrier and the division and the employee, on a form pre­scribed by the division, providing the following infor­mation:

(a) The name, address, and business of the em­ployer;

(b) The name, social security number, street, mailing address, telephone number, and occupation of the employee;

(c) The cause and nature of the injury or death; (d) The year, month, day, and hour when, and

the particular locality where, the injury or death occurred; and

(e) Such other information as the division may require, including a clear and understandable sum­mary statement of the rights, benefits, and obliga­tions of injured workers under the Workers' Com­pensation Law.

(3) In addition to the requirements of subsection (2), the employer shall notify the division within 24 hours by telephone or telegraph of any injury result­ing in death. However, this special notice shall not be required when death results subsequent to the submission to the division of a previous report of the injury pursuant to subsection (2).

(4) Upon receipt of notice of injury from the em­ployer, or any other indication of a compensable in­jury, the division shall immediately mail to the in­jured worker an informational brochure, as pre­scribed by the division, which sets forth in clear and understandable language a summary statement of the rights, benefits, and obligations of injured work­ers under the Workers' Compensation Law, together with an explanation of its operation. The division shall review any such notice or indication of injury received and, if it appears to the division that the injury will result in permanent impairment, the di­vision shall, within 3 days of receipt of such notice or indication of injury, contact the injured worker or a family member serving as personal representative thereof by telephone, if possible, otherwise by mail, in order to discuss the rights and benefits of the injured employee under the Workers' Compensation Law and to assist the injured worker in securing any benefits provided for under this chapter to which such injured worker is entitled.

(5) Additional reports with respect to such injury and of the condition of such employee, including cop­ies of medical reports, shall be sent by the employer or carrier to the division at such times and in such manner as the division may prescribe.

(6) In the absence of a stipulation by the parties, reports provided for in subsection (2), subsection (4), or subsection (5) shall not be evidence of any fact stated in such report in any proceeding relating thereto, except for medical reports which, if other­wise qualified, may be admitted at the discretion of the deputy commissioner.

(7) Every insurance carrier writing workers' compensation insurance for employment covered under this chapter shall file written notice with the division within 21 days after the issuance of a policy or contract of insurance. Notice of cancellation or expiration of a policy as set out in s. 440.42(2) shall be mailed to the division in accordance with rules promulgated by the division under chapter 120.

(8) When a claimant, employer, or carrier has the right, or is required, to mail a report or notice with required copies within the times prescribed in subsection (2), subsection (4), or subsection (5), such mailing will be completed and in compliance with this section if it is postmarked and mailed prepaid to the appropriate recipient prior to the expiration of the time-frames prescribed in this section.

(9) Any employer or carrier who fails or refuses

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F.S.1979 WORKERS' COMPENSATION Ch. 440

to send any form, report, or notice required by this section shall be subject to a civil penalty not to ex­ceed $100 for each such failure or refusal. However, any employer who fails to notify the carrier of the injury on the prescribed form or by letter within the 7 days required in subsection (2) shall be liable for the civil penalty, which shall be paid by the employ­er and not the carrier. Failure by the employer to meet its obligations under subsection (2) shall not relieve the carrier from liability for the civil penalty if it fails to comply with subsections (4) and (5).

(10) Any compensable wage loss shall be report­ed by the employee to the carrier or self-insured employer within 30 days after the termination of the month for which such loss is claimed. The division shall provide by rule for the reporting of wage loss by the injured worker, and for the reporting of wage loss and payment of wage-loss benefits by the em­ployer, to the division and may prescribe forms for such reporting. The division, upon request by the employer or carrier, shall provide verification through unemployment compensation records of any claimed wage loss and shall obtain such verifica­tion from other states, if applicable. The division shall require by rule that the employer inform a worker who suffers a permanent impairment of his possible entitlement to wage-loss and other benefits and of the worker's obligation to report a claimed wage loss.

History.-s. 10, ch. 75-209; s. 1, ch. 77-174; ss. 6, 23, ch. 78-300; ss. 14, 124, ch. 79-40; ss. 10, 21, ch. 79-312.

440.19 Time and procedure for filing claims.-

(1) Upon receipt by the division, every claim for benefits filed under this chapter shall be evaluated by the division to ascertain whether the claim can be resolved without a hearing, and within 10 days of such receipt the division shall make a decision as to the entitlement to benefits and shall notify the par­ties with respect thereto. Any such decision by the division shall be advisory. At any hearing before the deputy commissioner, the decision of the division shall not be res judicata, but shall be included in the case file in the division and shall be deemed a part of the proceeding. The case file shall also reflect any response of a party to the advisory opinion filed with­in 10 days after the issuance of such opinion. No request for hearing shall be filed until the division issues its decision, or until10 days after the filing of the claim, whichever is earlier.

(2)(a) The right to compensation for disability, impairment, or wage loss under this chapter shall be barred unless a claim therefor which meets the re­quirements of paragraph (d) is filed within 2 years after the time of injury, except that, if payment of compensation has been made or remedial treatment has been furnished by the employer on account of such injury, a claim may be filed within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer.

(b) All rights for remedial attention under this section shall be barred unless a claim therefor which meets the requirements of paragraph (d) is filed with the division within 2 years after the time of injury, except that, if payment of compensation has been

made or remedial attention has been furnished by the employer without an award on account of such injury, a claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer; and all rights for remedi­al attention under this section pursuant to the terms of an award shall be barred unless a further claim therefor is filed with the division within 2 years after the entry of such award, except that, if payment of compensation has been made or remedial attention has been furnished by the employer under the terms of the award, a further claim may be filed within 2 years after the date of the last payment of compensa­tion or within 2 years after the date of the last reme­dial attention furnished by the employer. However, no statute of limitations shall apply to the right for remedial attention relating to the insertion or at­tachment of a prosthetic device to any part of the body.

(c) The right to compensation for death under this chapter shall be barred unless a claim therefor which meets the requirements of paragraph (d) is filed within 2 years after the death, except that, if payment of compensation has been made without an award on account of such death, a claim may be filed within 2 years after the date of the last payment.

(d) Such claim shall be filed with the division at its office in Tallahassee and shall contain the name and address of the employee, the name and address of the employer, and a statement of the time, place, nature, and cause of the injury, or such fairly equiva­lent information as will put the division and the employer on notice with respect to the identity of the parties and the specific compensation benefit which is due but has not been paid or is not being provided. Any claim, or portion thereof, not in compliance with this subsection shall be subject to dismissal upon motion of any interested party, the division, or a deputy commissioner.

(e) Any deputy commissioner receiving a claim for compensation in any form shall, immediately upon receipt of such claim, mail said claim to the division at its office in Tallahassee.

(f) In no event and under no circumstances shall any of the rights of employees under the Workers' Compensation Law be prejudiced or lost by failure or delay of deputy commissioners in mailing claims in any form to the division in Tallahassee.

(3) Notwithstanding the provisions of subsection (2), failure to file a claim within the period pre­scribed in such subsection shall not be a bar to such right unless objection to such failure is made at the first hearing of such claim in which all parties in interest are given reasonable notice and opportunity to be heard.

(4) If a person who is entitled to compensation under this chapter is mentally incompetent or ami­nor, the provisions of subsection (2) shall not be ap­plicable so long as such person has no guardian or other authorized representative, but shall be appli­cable in the case of a person who is mentally incom­petent or a minor from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before he becomes of age, from the date he becomes of age.

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Ch. 440 WORKERS' COMPENSATION F.S.1979

(5) When recovery is denied to any person, in a suit brought at law or in admiralty to recover dam­ages in respect of injury or death, on the ground that such person was an employee and that the defendant was an employer within the meaning of this chapter and that such employer had secured compensation to such employee under this chapter, the limitation of time prescribed in subsection (2) shall begin to run only from the date of termination of such suit, but in such an event the employer shall be allowed a credit of his actual cost of defending said suit in a sum not exceeding $250, which shall be deducted from any compensation allowed or awarded to said employee under this chapter.

(6) An employer or carrier shall, at the request of an employee or the attorney thereof, furnish to such person any medical information and earnings infor­mation relating to such employee, whether or not a claim therefor has been filed.

History-s. 19, ch. 17481, 1935; CGL 1936 Supp. 5966(19); s. 1, ch. 23908, 1947; s. 10, ch. 26484, 1951; s . 4, ch. 29778, 1955; s. 1, ch. 57-192; s. 1, ch. 65-120; s. 2, ch. 67-554; ss. 17, 35, ch. 69-106; s. 23, ch. 78-300; ss. 15, 124, ch. 79-40; ss. 11 , 21, ch. 79-312.

440.20 Payment of compensation.-(!) Compensation under this chapter shall be

paid periodically, promptly in the usual manner and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.

(2) The first installment of compensation for to­tal disability or death shall become due on the 14th day after the employer has knowledge of the injury or death, on which date all compensation then due shall be paid. Thereafter, compensation shall be paid in installments weekly or biweekly, except when the deputy commissioner determines that payments in installments should be made monthly or at some other period.

(3) Impairment benefits shall be payable in ac­cordance with s. 440.15(3)(a)2.

(4) Benefits payable pursuant to s. 440.15(3)(b) or (4) shall be paid monthly, subsequent to the termina­tion of the period for which such payments are due, within 14 days of the date upon which the carrier or employer has knowledge of the compensable wage loss.

(5) Upon making the first payment, and upon suspension of payment for any cause, the employer shall immediately notify the division, in accordance with a form prescribed by the division, that payment of compensation has begun or has been suspended, as the case may be.

(6) If the carrier controverts the right to compen­sation, it shall file with the division, on or before the 21st day after it has knowledge of the alleged injury or death, a notice in accordance with a form pre­scribed by the division, stating that the right to com­pensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death, and the grounds upon which the right to compensation is controverted, together with a written explanation setting forth in detail the rea­son or reasons why the claim has been controverted, and a copy of such notice shall be furnished by the carrier to the employee and employer.

(7) If any installment of compensation for death or dependency benefits, disability, permanent im-

pairment, or wage loss payable without an award is not paid within 14 days after it becomes due, as pro­vided in subsection (2), subsection (3), or subsection (4), there shall be added to such unpaid installment a punitive penalty of an amount equal to 10 percent thereof, which shall be paid at the same time as, but in addition to, such installment of compensation, un­less notice is filed under subsection (6) or unless such nonpayment results 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 14 days after it be­came due and the claimant concludes the prosecu­tion of the claim before a deputy commissioner with­out having specifically claimed additional compen­sation in the nature of a penalty under this section, he 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 his right to claim such penalty. However, during the course of a: hearing, the deputy commis­sioner shall on his own motion raise the question of whether such penalty should be awarded or excused. The division may assess without a hearing the above­mentioned 10 percent additional payment against either the employer or the insurance 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 division or the depu­ty commissioner determines that the 10 percent ad­ditional payment should be made 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.

(8) If any compensation, payable under the terms of an award, is not paid within 20 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.

(9) 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 or carrier shall pay interest thereon at the rate of 12 percent per annum 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.

(a) Within 30 days after final payment of com­pensation has been made, the employer shall send to the division a notice, in accordance with a form pre­scribed by the division, stating that such final pay­ment has been made, the total amount of compensa­tion paid, the name ofthe employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid.

(b) If the employer fails to so notify the division within such time, the division shall assess against such employer a civil penalty in an amount not over $100.

(10) The division: (a) May upon its own initiative at any time in a

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F.S.1979 WORKERS' COMPENSATION Ch. 440

case in which payments are being made without an award investigate same; and

(b) Shall, in any case where right to compensa­tion is controverted, or where 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, mak.e 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.

(11) Whenever the division deems it advisable, it may require any employer to make a deposit with the Treasurer to secure the prompt and convenient payments of such compensation, and payments therefrom upon any awards shall be made upon or­der of the division or deputy commissioner.

(12)(a) It is the stated policy for the administra­tion of the workers' compensation system that it is in the best interests of the injured worker that he receive disability or wage-loss payments on a period­ic basis. Lump sum payments in exchange for the employer's or carrier's release from liability for fu­ture payments of compensation, other than for medi­cal expenses, shall be allowed only under special cir­cumstances, as when the claimant can demonstrate that lump sum payments will definitely aid in his rehabilitation or are otherwise clearly in his best interests and that lump sum payments will avoid undue expense or undue hardship to any party, or that such claimant has removed himself or is about to remove himself from the state. In no case shall a lump sum payment be allowed in exchange for the release of an employer's or carrier's liability for fu­ture medical expenses. In no case shall a lump sum settlement be allowed until 6 months after the date of maximum medical improvement has been reached.

(b) Upon the application of any party in interest or upon joint petition of all interested parties, and after giving due consideration to the interests of all interested parties, if a deputy commissioner finds that a lump sum payment in exchange for release from liability is proper under paragraph (a), said deputy commissioner may enter a compensation or­der requiring that the liability of the employer for compensation shall be discharged by the payment of a lump sum equal to the present value of all future payments of compensation, computed at 4 percent true discount compounded annually, or requiring that the employer make advance payment of a part of the compensation for which said employer is liable by the payment of a lump sum equal to the present value of such part of the compensation, computed at 4 percent true discount compounded annually. 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, nothing in this subsection shall be construed to mean that a deputy commissioner is required to approve any award for lump sum payment when it is determined by the deputy commissioner that the payment being made is in excess of the value of benefits the claim-

ant would be entitled to under this chapter. The deputy commissioner shall make or cause to be made such investigations as he considers necessary, in each case in which the parties have stipulated that a proposed final settlement ofliability 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 his discretion, may have an inves­tigation made by the Rehabilitation Section of the Division of Workers' Compensation. The joint peti­tion and the report of any investigation so made will be deemed a part of the proceeding. A deputy com­missioner, in his discretion, may hear testimony re­lating to a proposed stipulation for settlement under this subsection without having in hand the division file; however, he shall in no event enter an order thereon without first having reviewed the division file. 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 said hearing and inform him of his rights to appear and testify. When the claimant is represented by counsel or when the claimant and carrier or employer are represented by counsel, final approval of the lump sum settlement agreement, as provided for in a joint petition and stipulation, shall be approved by entry of an order within 7 days of the filing of such joint petition and stipulation without a hearing, unless the deputy commissioner determines, in his discretion, that ad­ditional testimony is needed before such settlement can be approved or disapproved and so notifies the parties. 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, Education, and Welfare. 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 deputy commissioner, in the deputy commissioner's discretion, may require security which will insure 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 ss. 440.25 and 440.27 and the rules of procedure adopted by the Supreme Court.

(13)(a) Liability of an employer for future pay­ments of compensation shall not be discharged by advance payment unless prior approval of a deputy commissioner or the division has been obtained as hereinafter provided. The approval shall not consti-

909

Ch. 440 WORKERS' COMPENSATION F.S.1979

tute an adjudication of the claimant's percentage of disability.

(b) When the claimant has reached maximum recovery and returned to 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 deputy com­missioner, by the division director, or by the admin­istrator of claims of the division.

(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 deputy commissioner, by the division director, or by the administrator of claims of the division.

2. An advance payment of compensation not in excess of $2,000 may be ordered by any deputy com­missioner after giving the interested parties 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 deputy commis­sioner, with or without hearing, or informally by letter by any such deputy commissioner, or by the division director, 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, subject to the approval of the division, said payment may be ap­proved by a deputy commissioner by order ifhe finds that same is for the best interests of the person enti­tled thereto and is reasonable under the circum­stances of the particular case. The deputy commis­sioner shall make or cause to be made such investi­gations as he considers necessary concerning the stipulation and, in his discretion, may have an inves­tigation of the matter made by the Rehabilitation Section of the division. 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 deputy commissioner after giving the interested parties not less than 10 days' notice of such hearing by mail, unless such notice is waived. In his discretion, the deputy com­missioner may have an investigation of the matter made by the Rehabilitation Section of the division, in which event the report and recommendation of said section will be deemed a part of the record of the proceedings. If the deputy commissioner finds that such advance payment is for the best interests ofthe person entitled to compensation, will not materially prejudice the rights ofthe employer and carrier, and is reasonable under the circumstances of the case, he may order the same paid.

(14) If the employer has made advance payments of compensation, he shall be entitled to be reim-

bursed out of any unpaid installment or installments of compensation due.

(15) When an employee is injured and the em­ployer pays his 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 said volun­tary payment or award, provided the employer fur­nishes satisfactory proof to the judge 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 (14), shall be considered a gratuity.

(16)(a) The division shall examine on an ongoing basis claims files in its possession in order to identify questionable claims handling techniques, questiona­ble patterns of claims, or a pattern of repeated un­reasonably controverted claims by employers, carri­ers, or self-insurers and shall certify its findings to the Department of Insurance. Only such questiona­ble techniques, patterns, or repeated unreasonably controverted claims as constitute a general business practice of a carrier in the judgment of the division shall be certified· in its findings by the division to the Department of Insurance. Such certification by the division is exempt from the provisions of chapter 120. Upon receipt of any such certification, the De­partment oflnsurance shall take appropriate action so as to bring such general business practices to a halt pursuant to s. 440.38(3)(a). Upon receipt by the division of a written request for an investigation raising such questionable techniques, patterns, or repeated unreasonably controverted claims, the divi­sion shall investigate the particular carrier in ques­tion and shall certify its findings to the Department of Insurance with a copy to the requesting party.

(b) The division 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 self­insurers with poor payment records for the preced­ing year. A copy of such report shall be certified to the Department of Insurance which shall take ap­propriate steps so as to cause such poor carrier pay­ment practices to halt pursuant to s. 440.38(3)(a). In addition, the division shall take appropriate action so as to halt such poor payment practices of self­insurers. "Poor payment practice" means a practice of late payment sufficient to constitute a general business practice.

(c) The division shall promulgate rules providing guidelines to carriers, 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.

(17) No penalty assessed under this section shall be recouped by any carrier or self-insurer in the rate base, premium, or in any rate filing. In the case of carriers the Department of Insurance shall enforce

910

F.S.1979 WORKERS' COMPENSATION Ch. 440

this subsection, and in the case of self-insurers the division shall enforce this subsection.

History.-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.

440.205 Coercion of employees.-No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

History.-s. 17, ch. 79-40.

440.21 Invalid agreements; penalty.-(1) No agreement by an employee to pay any por­

tion of premium paid by his employer to a carrier or to contribute to a benefit fund or department main­tained by such employer for the purpose of providing compensation or medical services and supplies as required by this chapter shall be valid, and any em­ployer who makes a deduction for such purpose from the pay of any employee entitled to the benefits of this chapter shall be guilty of a misdemeanor ofthe second degree, punishable as provided in s. 775.083.

(2) No agreement by an employee to waive his right to compensation under this chapter shall be valid.

History.-s. 21, ch. 17481, 1935; CGL 1936 Supp. 5966(21), 8135(10); s. 364, ch. 71-136; s. 118, ch. 71-355; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312.

440.22 Assignment and exemption from claims of creditors.-No assignment, release, or commutation of compensation or benefits due or payable under this chapter except as provided by this chapter shall be valid, and such compensation and benefits shall be exempt from all claims of credi­tors, and from levy, execution and attachments or other remedy for recovery or collection of a debt, which exemption may not be waived.

History.-s. 22, ch. 17481, 1935; CGL 1936 Supp. 5966(22); s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312.

440.23 Compensation a lien against assets.­Compensation shall have the same preference oflien against the assets of the carrier or employer without limit of an amount as is now or may hereafter be allowed by law to the claimant for unpaid wages or otherwise.

History.-s. 23, ch. 17481, 1935; CGL 1936 Supp. 5966(23); s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312.

440.24 Enforcement of compensation orders; penalties.-

(1) In case of default by the employer or carrier in the payment of compensation due under any com­pensation order of a deputy commissioner or order of the 'commission or other failure by the employer or carrier to comply with such order within 10 days after the order becomes final, any circuit court of this state within the jurisdiction of which the em­ployer or carrier resides or transacts business shall, upon application by the division or any beneficiary under such order, have jurisdiction to issue a rule nisi directing such employer or carrier to show cause why a writ of execution, or such other process as may be necessary to enforce the terms of such order, shall

not be issued, and, unless such cause is shown, the said court shall have jurisdiction to issue a writ of execution or such other process or final order as may be necessary to enforce the terms of such order of the deputy commissioner or 'commission.

(2) In any case where the employer is insured and the carrier fails to comply with any compensa­tion order of a deputy commissioner, the 'commis­sion, or the court within 10 days after such order becomes final, the division shall notify. the Depart­ment of Insurance of such failure, and the Depart­ment of Insurance shall thereupon suspend the li­cense of such carrier to do an insurance business in this state, until such carrier has complied with such order.

(3) In any case where the employer is a self-insur­er and fails to comply with any compensation order of a deputy commissioner, the 'commission, or the court within 10 days after such order becomes final, the division may suspend or revoke any authoriza­tion previously given to the employer to become a self-insurer, and the division may sell such of the securities deposited by such self-insurer with the di­vision as may be necessary to satisfy such order.

(4) In any case wherein the employee fails to comply with any order of a deputy commissioner within 10 days after such order becomes final, the deputy commissioner may dismiss the claim or sus­pend payments due under said claim until the em­ployee complies with such order. The deputy com­missioner may strike the defenses of the employer, if said employer is self-insured, or of the insurance carrier, if said employer is not self-insured, if said employer or carrier fails to comply with any order of a deputy commissioner within 10 days after such order becomes final.

History.-s. 24, ch. 17481, 1935; CGL 1936 Supp. 5966(24); s. 10, ch. 18413, 1937; s. 7, ch. 28241, 1953; s. 2, ch. 67-554; ss. 13, 17, 35, ch. 69-106; s. 120, ch. 71-355; s. 14, ch. 74-197; s. 23, ch. 78-300; ss. 18, 124, ch. 79-40; ss. 13, 21, ch. 79-312.

'Note.-See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission, effective October 1, 1979.

440.25 Procedure in respect to claims and hearing requests.-

(1) Subject to the provisions of s. 440.19, a claim for compensation may be filed with the division at its office in the City of Tallahassee in accordance with rules prescribed by the division at any time after a specific benefit becomes due and is not paid, and the deputy commissioner shall have full power and au­thority to hear and determine all questions in re­spect to such claims.

(2) Within 10 days after such claim is filed, the division, in accordance with rules prescribed by it, shall notify the employer and any other person other than the claimant whom the division considers an interested party that a claim has been filed. Such notice may be served personally upon the employer or other person or sent to such employer or person by certified mail.

(3)(a) The division or deputy commissioner shall make or cause to be made such investigations as he considers necessary in respect to the claim, and upon request by any interested party, the deputy commis­sioner shall order a hearing thereof. An application for a hearing concerning a claim shall state concisely in separate, numbered paragraphs the reasons for

911

Ch. 440 WORKERS' COMPENSATION F.S.1979

requesting a hearing and the questions at issue or in dispute which the applicant expects the deputy com­missioner to hear and determine, with sufficient par­ticularity that the responding or opposing parties may be notified of the purpose of the hearing, includ­ing the issues to be heard and determined and the specific benefit which is due and not paid. No request for a hearing filed on behalf of a party represented by an attorney shall be valid and of any force or effect unless there exists at the tim·e of its filing a justifiable controversy determinable by the deputy commissioner. Any application for a hearing not in compliance with this paragraph shall be subject to dismissal upon motion of the division, the deputy commissioner, or any interested party. If a request for a hearing is filed, the deputy commissioner shall hold a hearing within 90 days after it is filed and shall give the claimant and other interested parties at least 15 days' noti~e of such hearing, served upon the claimant and other interested parties by certi-fied mail. ·

(b) The hearing shall be held in the county where the injury occurred, if the same occurred in this state, unless otherwise agreed to between the parties and authorized by the deputy commissioner in the county where the injury occurred. If the injury oc­curred without the state and is one for which com­pensation is payable under this chapter, then the hearing above referred to may be held in the county of the employer's residence or place ofbusiness, or in any other county of the state which will at the time of forwarding the file for hearing, in the discretion of the division, be the most convenient for a hearing. Subsequent to the forwarding of the file to such county, the parties and the deputy commissioner may agree to transfer such file to a county that is deemed most convenient for a hearing. The hearing shall be conducted by a deputy commissioner who shall, within 30 days after such hearing, unless oth­erwise agreed to by the parties, determine the dis­pute in a summary manner. At such hearing, the claimant and employer may each present evidence in respect of such claim and may be represented by any attorney authorized in writing for such purpose. When there is a conflict in the medical evidence submitted at the hearing, the deputy commissioner may designate a disinterested doctor to submit a re­port or to testify in the proceeding, after such doctor has reviewed the medical reports and evidence, ex­amined the claimant, or otherwise made such inves­tigation as appropriate. The report or testimony of any doctor so designated by the deputy commission­er shall be made a part of the record of the proceed­ing and shall be given the same consideration by the deputy commissioner as is accorded other medical evidence submitted in the proceeding; and all costs incurred in connection with such examination and testimony may be assessed as costs in the proceed­ing, subject to the provisions of s. 440.13(3)(a). No deputy commissioner shall make a finding of a de­gree of permanent impairment that is greater than the greatest permanent impairment rating given the claimant by any examining or treating physician, except upon stipulation of the parties.

(c) The order making an award or rejecting the claim, referred to in this chapter as a compensation

order, shall set forth the findings of ultimate facts and the mandate, and the order need not include any other reason or justification for such mandate. The compensation order shall be filed in the office of the division at Tallahassee. A copy of such compensation order shall be sent by mail to the parties and attor­neys of record at the last known address of each, with the date of mailing noted thereon.

(d) Each deputy commissioner or the 1Industrial Relations Commission is required to submit a special report to the Division of Workers' Compensation in each contested workers' compensation case in which the case is not determined within 30 days of final hearing or within 180 days of filing an application for review. Said form shall be provided by the divi­sion and shall contain the name of the deputy com­missioner, if the case is before a deputy commission­er; the attorneys involved; and a brief explanation by the deputy commissioner or the 1 Industrial Rela­tions Commission as to the reason for such a delay in issuing a final order. The Division of Workers' Compensation shall corripile these special reports into an annual public report to the Governor, the Secretary of Labor and Employment Security, the Legislature, The Florida Bar, and the appellate dis­trict judicial nominating commissions.

(4)(a) The compensation order rendered by the deputy commissioner shall become final 20 days af­ter the date copies of same are mailed to the parties at the last known address of each, unless within said time any interested party shall make and file with the 1commission or a deputy commissioner an appli­cation for a review thereof by the 1commission in accordance with the provisions of this subsection. However, an employer who has not secured the pay­ment of compensation under this chapter in compli­ance with s. 440.38 shall, as a condition of filing such application for a review by the 1commission, file with his application for review a good and sufficient bond, as provided in s. 59.13, conditioned to pay the amount of the award, interest, and costs payable under the terms of the order of the 1commission, if the application shall be dismissed or the order there­on shall affirm or make an award of benefits in any amount, and upon failure of such employer to file such bond with his application for review the 1commission shall dismiss the application for re­view. The application must state concisely and par­ticularly the grounds upon which the appellant re­lies, and the consideration of the 1commission there­of will be confined solely to the grounds so presented. A copy of all applications for review shall be served on all in teres ted parties, and proof of service thereof shall accompany all applications when filed.

(b) The appellant shall have prepared, in accord­ance with the workers' compensation rules of proce­dure, a record on appeal, certified by the deputy commissioner, which record must be filed with the 1commission within 45 days from the date of the filing of the application for review, unless the 1commission, for good cause shown by verified peti­tion presented prior to the expiration of said period, shall extend the time therefor. The appellant shall have a copy of the record served on the opposing party or parties or their counsel, and evidence of such service shall be filed with the record when filed

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F.S.1979 WORKERS' COMPENSATION Ch. 440

with the 1commission. Upon failure of the appellant to file a record with the 1commission, together with evidence of service of a copy thereof on the opposing party or parties, within the time specified or within such time as allowed by the 1commission pursuant to petition for an extension of time as aforesaid, the 1commission shall dismiss the application for re­view.

(c)l. Within 15 days after the content of the record on appeal has been determined, the deputy commissioner shall ~erve notice upon the appellant or his attorney of the estimated cost of preparing the record on appeal and necessary copies thereof, and the appellant shall, within 15 days of the date of service, deposit the amount of the estimated cost of preparing the record at the office.ofthe deputy com­missioner. If the appellant fails to deposit the amount of costs within the time allotted, the deputy commissioner shall promptly notify the 1commission of such failure, and the 1commission shall dismiss the application for review. However, neither the di­vision nor the Special Disability Trust Fund, nor any self-insured state agency, shall be required to make the deposit.

2. An appellant may be relieved in part or in whole from the costs for the preparation of the record on appeal if, within 15 days after the date notice of the estimated costs for the preparation is served, he files with the deputy commissioner a veri­fied petition to be relieved of costs. The verified peti­tion shall contain a detailed and sworn statement of all his assets, liabilities, and income. Appellant's at­torney, or the appellant if not represented by an attorney, shall include as a part of the verified peti­tion an affidavit or affirmation that, in his opinion, the application for review was filed in good faith and that the assignment of error contained therein con­stitutes a probable basis for the 1commission to find reversible error. A copy of the verified petition shall be served upon the division in Tallahassee and all other interested parties. The deputy commissioner shall promptly conduct a hearing on the verified pe­tition, giving at least 15 days' notice to the appellant, the division, and all other interested parties, which shall all be parties to the proceeding. The deputy commissioner may enter an order without such hearing if no objection is filed by the division or an interested party within 12 days from the date the verified petition is filed. Said proceedings shall be conducted in accordance with this section and the workers' compensation rules of procedure to the ex­tent applicable.

(d) Within 10 days after the appellant has filed his application for review, any other interested par­ty who desires review of any adverse ruling by the deputy commissioner must file his cross-application for review with the 1commission or a deputy commis­sioner. The cross-application for review must state concisely and particularly the grounds upon which the cross-appellant relies, and the consideration of the 1cotnmission thereof will be confined solely to the grounds so presented. A copy of all cross-applica­tions for review shall be served on all interested par­ties, and proof of service thereof shall accompany all cross-applications when filed.

(e) Unless the application for review is with-

drawn with its permission or is dismissed as afore­said, the 1commission shall consider the matter upon the record as certified by the deputy commissioner and shall thereafter affirm, reverse, or modify said compensation order or remand the claim for further proceedings before a deputy commissioner who shall proceed as the 1commission may direct. The order of the 1commission shall be filed in the office of the 1commission at Tallahassee, and a copy of such order shall be sent by certified mail to each party at his last known address. The order of the 1commission shall become final upon expiration of the period within which any interested party may file a peti­tion for writ of certiorari requesting review of such order by the Supreme Court, unless within said time any interested party shall file a petition for writ of certiorari in accordance with s. 440.27.

(f) Beginning on October 1, 1979, procedures with respect to appeals from orders of deputy com­missioners shall be governed by rules adopted by the Supreme Court, Such an order shall become final30 days after mailing of copies of such order to the par­ties, unless appealed pursuant to such rules. The provisions of paragraphs (a)-( e) shall apply only until September 30, 1979.

(5) An award of compensation for disability may be made after the death of an injured employee.

(6) An injured employee claiming or entitled to compensation shall submit to such physical exami­nation by a duly qualified physician designated or approved by the deputy commissioner as the deputy commissioner may require. The place or places shall be reasonably convenient for the employee. Such physician or physicians as the employee, employer, or carrier may select and pay for may participate in an examination if the employee, employer, or carrier so requests. Proceedings shall be suspended and no compensation shall be payable for any period during which the employee may refuse to submit to exami­nation. Any interested party shall have the right in any case of death to require an autopsy, the cost thereof to be borne by the party requesting it; and the deputy commissioner shall have authority to or­der and require an autopsy and may, in his discre­tion, withhold his findings and award until an autop­sy is held.

Hlstory.-s. 25, ch. 17481, 1935; CGL 1936 Supp. 5966(25); s. 11, ch. 18413, 1937; s. 7, ch. 20672, 1941; s. 3, ch. 22814, 1945; s. 1, ch. 26967, 1951; s. 8, ch. 28241, 1953; s. 6, ch. 29778, 1955; s. 1, ch. 57-270; s. 2, ch. 59-100; s. 2, ch. 59-142; s. 2, ch. 65-120; s. 1, ch. 65-119; s. 1, ch. 67-374; s. 2, ch. 67-554; ss. 17, 35, ch. 69-106; s. 120, ch. 71-355; s. 1, ch. 74-48; s. 15, ch. 74-197; s. 12, ch. 75-209; ss. 6, 8, ch. 77-290; ss. 8, 23, ch. 78-300; s. 17, ch. 79-7; ss. 19, 124, ch. 79-40; ss. 14, 21, ch. 79-312; s. 180, ch. 79-400.

'Note.-See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission and transferred all appeals pending before the commission to the District Court of Appeals, First District, effective October 1, 1979. cf.-s. 1.01 Defines registered mail to include certified mail with return

receipt requested.

440.26 Presumptions.-Except as otherwise provided in this chapter, in any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed, in the absence of sub­stantial evidence to the contrary:

(1) That the claim comes within the provisions of this chapter.

(2) That sufficient notice of i;JUCh claim has been

913

Ch. 440 WORKERS' COMPENSATION F.S.1979

given. (3) That the injury was not occasioned by the

willful intention of the injured employee to injure or kill himself or another.

History.-s. 26, ch. 17481, 1935; CGL 1936 Supp. 5966(26); s. 7, ch. 77-290; s. 23, ch. 78-300; ss. 20, 124, ch. 79-40; s. 21, ch. 79-312.

440.27 Review of compensation orders.-(1) Orders of the 'commission entered pursuant

to s. 440.25 shall be subject to review only by petition for writ of certiorari to the Supreme Court. The peti­tion shall be filed in accordance with rules of proce­dure prescribed by the Supreme Court of Florida for review of such orders. The division shall be made a party respondent to every such proceeding.

(2) The 'commission may grant a supersedeas or stay upon petitioner giving a good and sufficient bond, as provided ins. 59.13, conditioned to pay the amount of the award, interest and costs, if the peti­tion shall be denied by the court; provided, however, that if the employer has secured the payment of benefits of this chapter to his employees no bond is required.

History.-s. 27, ch. 17481, 1935; CGL 1936 Supp. 5966(27); s. 12, ch. 18413, 1937; s. 8, ch . 20672, 1941; s. 2, ch. 23908, 1947; s. 10, ch. 26484, 1951; s. 9, ch. 28241, 1953; s. 7, ch. 29778, 1955; s. 2, ch. 57-270; s. 1, ch. 59-142; ss. 17, 35, ch. 69-106; s. 120, ch. 71-355; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312.

'Note.-See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission and transferred all appeals pending before the commission to the District Court of Appeals, First District, effective October 1, 1979.

440.271 Appeal of order of deputy commis­sioner.-After September 30, 1979, review of any order of a deputy commissioner entered pursuant to this chapter shall be by appeal to the District Court of Appeal, First District. On October 1, 1979, all ap­peals pending before the Industrial Relations Com­mission shall be transferred to the District Court of Appeal, First District, and the court shall act on such appeals.

History.-s. 1, ch. 79-312.

440.28 Modification of orders.-Upon a depu­ty commissioner's own initiative, or upon the appli­cation of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the deputy commissioner may, at any time prior to 2 years after the date of the last payment of compensation pursuant to any com­pensation order, or at any time prior to 2 years after the date copies of an order rejecting a claim are mailed to the parties at the last known address of each, review a compensation case in accordance with the procedure prescribed in respect of claims in s. 440.25 and, in accordance with such section, issue a new compensation order which may terminate, con­tinue, reinstate, increase, or decrease such compen­sation or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and, if any part of the compensation due or to be­come due is unpaid, an award decreasing the com­pensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and

by such method as may be determined by the deputy commissioner.

History.-s. 28, ch. 17481, 1935; CGL 1936 Supp. 5966(28); s. 9, ch. 20672, 1941; s. 10, ch. 28241, 1953; s. 119, ch. 71-355; s. 13, ch. 75-209; s. 23, ch. 78-300; ss. 21, 124, ch. 79-40; s. 21, ch. 79-312.

440.29 Procedure before the 1commission or deputy commissioners.-

(1) In making an investigation or inquiry or con­ducting a hearing the deputy commissioner shall not be bound by technical or formal rules of procedure, except as provided by this chapter, but may make such investigation or inquiry, or conduct such hear­ing, in such manner as to best ascertain the rights of the parties. A declaration of a deceased employee concerning the injury in respect of which the investi­gation or inquiry is being made or the hearing con­ducted shall be received in evidence and shall, if corroborated by other evidence, be sufficient to es­tablish the injury.

(2) Hearings before the deputy commissioner shall be open to the public and shall be reported, and the division is authorized to contract for the report­ing of such hearings. The division shall by rule pro­vide for the preparation of a record of the hearings and other proceedings before deputy commissioners and shall be permitted to charge for transcripts of testimony and copies of any instrument the same fees as are allowed by law to reporters and clerks of courts of this state for like services.

(3) The practice and procedure before the 'commission and the deputy commissioners shall be governed by rules adopted by the Supreme Court, except to the extent that such rules conflict with the provisions of this chapter.

History.-s. 29, ch. 17481, 1935; CGL 1936 Supp. 5966(29); s. 10, ch. 20672, 1941; s. 8, ch. 29778, 1955; ss. 17, 35, ch. 69-106; s. 16, ch. 74-197; s. 14, ch. 75-209; ss. 9, 23, ch. 78-300; ss. 22, 124, ch. 79-40; s. 21, ch. 79-312.

'Note.-See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission, effective October 1, 1979. cf.-s. 28.24 Fees of clerk of circuit court.

s. 29.03 Compensation for services of official court reporters. s. 696.05 Photographic recording authorized; clerk circuit court.

440.30 Depositions.-Depositions of witnesses or parties, residing within or without the state, may be taken and may be used in connection with pro­ceedings under the Workers' Compensation Law, ei­ther upon order of the deputy commissioner or at the instance of any party or prospective party to such proceedings, and either prior to the institution of a claim, if the claimant is represented by an attorney, or after the filing of the claim in the same manner, for the same purposes, including the purposes of dis­covery, and subject to the same rules; all as now or hereafter prescribed by law or by rules of court gov­erning the taking and use of such depositions in civil actions at law in the circuit courts of this state. Such depositions may be taken before any notary public, court reporter, or deputy, and the fees of the officer taking the same and the fees of the witnesses attend­ing the same, including expert witness fees as pro­vided by law or court rule, shall be the same as in depositions taken for such circuit courts. Such fees may be taxed as costs and recovered by the claimant, if successful in such workers' compensation proceed­ings. If no claim has been filed, then the carrier or employer taking the deposition shall pay the claim-

914

F.S.1979 WORKERS' COMPENSATION Ch. 440

ant's attorney a reasonable attorney's fee for attend­ing said deposition.

History.-s. 30, ch. 17481, 1935; CGL 1936 Supp. 5966(30); s. 13, ch. 18413, 1937; s. 1, ch. 28228, 1953; ss. 17, 35, ch. 69-106; s. 17, ch . 74-197; s. 15, ch. 75-209; s. 23, ch. 78-300; ss. 23, 124, ch. 79-40; s . 21, ch . 79-312.

440.31 Witness fees.-Each witness who ap­pears in obedience to a subpoena shall be entitled to the same fees as witnesses in a civil action in the circuit court; however, any expert witness, as de­fined in Rule 1.390(a) of the Rules of Civil Procedure, who shall have testified in any proceeding under this chapter shall be allowed a witness fee, including the cost of any exhibits used by such witness, in such reasonable amount as the deputy commissioner may determine, not in excess of the rate prevailing in the locality for witness fees for such expert witnesses in workers' compensation proceedings, notwith­standing the limitation provided in s. 92.231.

History.-s. 31, ch. 17481, 1935; CGL 1936 Supp. 5966(31); s. 9, ch . 29778, 1955; s. 2, ch . 67-554; s. 23, ch. 78-300; ss. 24, 124, ch. 79-40; s. 21, ch. 79-312. cf.-s. 92.142 Compensation of witnesses in various courts.

440.32 Cost in proceedings brought without reasonable ground.-If the deputy commissioner, 'commission, or any court having jurisdiction ofpro­ceedings 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 such proceedings.

History.- s. 32, ch. 17481, 1935; CGL 1936 Supp. 5966(32); s. 1, ch. 63-283; ss. 17, 35, ch . 69-106; s. 16, ch . 75-209; s. 23, ch. 78-300; ss. 25, 124, ch. 79-40; s. 21, ch. 79-312.

' Note.-See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission, effective October 1, 1979.

440.33 Powers of deputy commissioners and 'commission.-

( I ) The deputy commissioner or 'commission may preserve and enforce order during any such proceeding; issue subpoenas for, administer oaths or affirmations to, and compel the attendance and tes­timony of witnesses, or the production of books, pa­pers, documents, and other evidence, or the taking of depositions before any designated individual compe­tent to administer oaths; examine witnesses, and do all things conformable to law which may be neces­sary to enable it effectively to discharge the duties of its office.

(2) If any person in proceedings before the depu­ty commissioner or 'commission disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or docu­ment, or refuses to appear after having been subpoe­naed, or upon appearing refuses to take oath or affir­mation as a witness, or after having taken the oath refuses to be examined according to law, the deputy commissioner or 'commission, as the case may be, shall certify the facts to the court having jurisdiction in the place in which it is sitting which shall there­upon in a summary manner hear the evidence as to the acts complained of, and, if the evidence so war­rants, punish such person in the same manner and to the same extent as for a contempt committed be­fore the court, or commit such person upon the same

conditions as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.

History.-s. 33, ch. 17481, 1935; CGL 1936 Supp. 5966(33); ss. 17, 35, ch. 69-106; s. 17, ch. 75-209; s. 23, ch. 78-300; ss. 26, 124, ch . 79-40; s. 21, ch. 79-312.

'Note.-See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission, effective October 1, 1979.

440.34 Attorney's fees; costs; penalty for vio­lations.-

(1) No fee, gratuity, or other consideration shall be paid for services rendered for a claimant in con­nection with any proceedings arising under this chapter, unless approved as reasonable by the depu­ty commissioner, 'commission, or court having juris­diction over such proceedings. Except as provided by this subsection, any attorney's fee approved by a dep­uty commissioner shall be equal to 25 percent of the first $5,000 of the amount of the benefits secured, 20 percent of the next $5,000 of the amount of the bene­fits secured, and 15 percent of the remaining amount of the benefits secured. However, the deputy com­missioner shall consider the following factors in each case and may increase or decrease the attor­ney's fee if, in his judgment, the circumstances of the particular case warrant such action:

(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill req­uisite to perform the legal service properly.

(b) The likelihood, if apparent to the claimant, that the acceptance of the particular employment will preclude employment of the lawyer by others or cause antagonisms with other clients.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the benefits resulting to the claimant.

(e) The time limitation imposed by the claimant or the circumstances.

(f) The nature and length of the professional re­lationship with the claimant.

(g) The experience, reputation, and ability of the lawyer or lawyers performing services.

(h) The contingency or certainty of a fee . (2) If the claimant should prevail in any proceed­

ings before a deputy commissioner, 'commission, or court, there shall be taxed against the employer the reasonable costs of such proceedings, not to include the claimant's attorney's fees. A claimant shall be responsible for the payment of 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 he successfully asserts a claim 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; or

(b) In cases where the deputy commissioner is­sues an order finding that a carrier has acted in bad faith with regard to handling an injured worker's claim and the injured worker has suffered economic loss. For the purposes of this paragraph, "bad faith" means conduct by the carrier in the handling of a claim which amounts to fraud, malice, oppression, or willful, wanton or reckless disregard of the rights of the claimant. Any determination of bad faith shall be made by the deputy commissioner through a sepa-

915

Ch. 440 WORKERS' COMPENSATION F.S.1979

r ate fact-finding proceeding; or (c) In a proceeding where a carrier or employer

denies that an injury occurred for which compensa­tion benefits are payable, and the claimant prevails on the issue of compensability.

In the situations set forth in paragraph (b), the pay­ment of such attorney's fees shall not be recouped, directly or indirectly, by any carrier in the rate base, premium, or any rate filing.

(3) In such cases where the claimant is responsi­ble for the payment of his own attorney's fees, such fees shall be a lien upon compensation payable to the claimant, notwithstanding the provisions of s. 440.22.

(4) Any person: (a) Who receives any fees or other consideration

or any gratuity on account of services so rendered, unless such consideration or gratuity is approved by the deputy commissioner, the 1commission, or the court, or

(b) Who makes it a business to solicit employ­ment for a lawyer or for himself in respect of any claim or award for compensation,

is guilty of a misdemeanor ofthe second degree, pun­ishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 34, ch. 17481, 1935; CGL 1936 Supp. 5966(34), 8135(11); s. 11, ch. 20672, 1941; ss. 17, 35, ch. 69-106; s. 365, ch. 71-136; s. 119, ch. 71-355; s. 18, ch . 75-209; s. 9, ch. 77-290; ss. 10, 23, ch. 78-300; ss. 27, 124, ch. 79-40; ss. 15, 21, ch. 79-312.

' Note.--See s. 1, ch . 79-312, which abolished the Industria l Relations Com· mission, effective October 1, 1979.

440.35 Record of injury or death.-Every em­ployer shall keep a record in respect of any injury to an employee. Such record shall contain such infor­mation of disability or death in respect of such injury as the division may by regulation require, and shall be available to inspection by the division or by any state authority at such time and under such condi­tions as the division may by regulation prescribe.

History.-s. 35, ch. 17481, 1935; CGL 1936 Supp. 5966(35); ss. 17, 35, ch. 69-106; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312.

440.37 Misrepresentation; fraudulent activi­ties; penalties.-

(!) Any person who willfully makes any false or misleading statement or representation for the pur­pose of obtaining or denying any benefit or payment under this chapter:

(a) Who presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to any provision of this chapter, knowing that such state­ment contains any false or misleading information concerning any fact or thing material to such claim, or

(b) Who prepares or makes any written or oral statement that is intended to be presented to any employer, insurance company, or self-insured pro­gram in connection with, or in support of, any claim for payment or other benefit pursuant to any provi­sion of this chapter, knowing that such statement contains any false or misleading information con-

cerning any fact or thing material to such claim,

shall be guilty of a felony ofthe third degree, punish­able as provided in s. 775.082, s. 775.083, or s. 775.084.

(2)(a) All claims forms as provided for in this chapter shall contain a notice that clearly states in substance the following: "Any person who, knowing­ly and with intent to injure, defraud, or deceive any employer or employee, insurance company, or self­insured program, files a statement of claim contain­ing any false or misleading information is guilty of a felony of the third degree."

(b)l. Any physician licensed under chapter 458, osteopath licensed under chapter 459, chiropractor licensed under chapter 460, or any other practition­er licensed under the laws of this state who knowing­ly and willfully assists, conspires with, or urges any person to fraudulently violate any of the provisions of this chapter, or any person who, due to such assis­tance, conspiracy, or urging by said physician, osteo­path, chiropractor, or practitioner, knowingly and willfully benefits from the proceeds derived from the use of such fraud, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In the event that a physician, osteopath, chiropractor, or other practitioner is ad­judicated guilty of a violation of this subparagraph, the 1State Board of Medical Examiners as set forth in chapter 458, the 2State Board of Osteopathic Med­ical Examiners as set forth in chapter 459, the 3Florida State Board of Chiropractic Examiners as set forth in chapter 460, or other appropriate licens­ing authority, whichever is appropriate, shall hold an administrative hearing to consider the imposition of administrative sanctions as provided by law against said physician, osteopath, chiropractor, or other practitioner.

2. Any attorney who knowingly and willfully as­sists, conspires with, or urges any claimant to fraud­ulently violate any of the provisions of this chapter, or any person who, due to such assistance, conspira­cy, or urging on such attorney's part, knowingly and willfully benefits from the proceeds derived from the use of such fraud, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3. No person or governmental unit licensed un­der chapter 395 to maintain or operate a hospital, and no administrator or employee of any such hospi­tal, shall knowingly and willfully allow the use of the facilities of such hospital by any person in a scheme or conspiracy to fraudulently violate any of the pro­visions of this chapter. Any hospital administrator or employee who violates this subparagraph is guilty of a felony of the third degree, punishable as provid­ed in s. 775.082, s. 775.083, or s. 775.084. Any adjudi­cation of guilt for a violation of this subparagraph, or the use of business practices demonstrating a pat­tern indicating that the spirit of the law set forth in this chapter is not being followed, shall be grounds for suspension or revocation of the license to operate the hospital or the imposition of an administrative penalty of up to $5,000 by the licensing agency as set forth in chapter 395.

(c) Any person damaged as a result of a violation

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F.S.l979 WORKERS' COMPENSATION Ch. 440

of any provision of this subsection, when there has been a criminal adjudication of guilt, shall have a cause of action to recover compensatory damages, plus all reasonable investigation and litigation ex­penses, including attorney's fees at the trial and ap­pellate courts.

(d) For the purposes of this subsection, the term "statement" includes, but is not limited to, any no­tice, statement, proof of injury, bill for services, diag­nosis, prescription, hospital or doctor records, X ray, test result, or other evidence of loss, injury, or ex­pense.

(e) The provisions of this subsection shall also apply with respect to any employer, insurer, self­insurer, adjusting firm, or agent or representative thereof who intentionally injures, defrauds, or de­ceives any claimant with regard to any claim. Such claimant shall have the right to recover the damages provided in this subsection.

(f) It is unlawful for any attorney or other per­son, in his individual capacity or in his capacity as a public or private employee, or for any firm, corpo­ration, partnership, or association to unlawfully so­licit any business in and about city or county hospi­tals, courts, or any public institution or public place; in and about private hospitals or sanitariums; in and about any private institution; or upon private prop­erty of any character whatsoever for the purpose of making workers' compensation claims. Any person who violates the provisions of this paragraph is guil­ty of a felony of the third degree, punishable as pro­vided in s. 775.082, s. 775.083, or s. 775.084.

(3) Whenever any circuit or special grievance committee acting under the jurisdiction of the Su­preme Court finds probable cause to believe that an attorney is guilty of a violation of this section, such committee shall forward to the appropriate state at­torney a copy of the findings of probable cause and a copy of the report being filed in the matter.

History.-s. 37, ch. 17481, 1935; CGL 1936 Supp. 8135(12); s. 366, ch. 71-136; s. 10, ch. 77-290; ss. 11, 23, ch. 78-300; ss. 28, 124, ch. 79-40; s. 117, ch. 79-164; s. 21, ch. 79-312.

'Note.-See ch. 79-302, which repealed provisions relating to the State Board of Medical Examiners and created the Board of Medical Examiners. 'Note.-See ch. 79-230, which repealed provisions relating to the State

Board of Osteopathic Medical Examiners and created the Board of Osteopath­ic Medical Examiners. 'Note.-See ch. 79-211, which repealed provisions relating to the Florida

State Board of Chiropractic Examiners and created the Board of Chiropractic.

440.38 Security for compensation; insurance carriers and self-insurers.-

(1) Every employer shall secure the payment of compensation under this chapter:

(a) By insuring and keeping insured the payment of such compensation with any stock company or mutual company or association or exchange, author­ized to do business in the state; or

(b) By furnishing satisfactory proof to the divi­sion of his financial ability to pay such compensation and receiving an authorization from the division to pay such compensation directly. The division may, as a condition to such authorization, require such employer to deposit in a depository designated by the division either an indemnity bond or securities, at the option of the employer, of a kind and in an amount determined by the division, and subject to such conditions as the division may prescribe, which shall include authorization to the division in case of default to sell any such securities sufficient to pay

compensation awards or to bring suit upon such bonds, to procure prompt payment of compensation under this chapter. In addition, the division shall require, as a condition to authorization to self-in­sure, proof that the employer has provided for com­petent personnel with which to deliver benefits and to provide a safe working environment. Further, the division shall require such employer to carry rein­surance at levels that will insure the actuarial soundness of such employer in accordance with rules promulgated by the division. Any employer securing compensation in accordance with the provisions of this paragraph shall be known as a self-insurer and shall be classed as a carrier of his own insurance. There is created in the State Treasury a guaranty fund for individual self-insurers authorized under this paragraph, and all such self-insurers, other than individual self-insurers which are public utilities or governmental entities, shall participate in such fund. Said guaranty fund shall operate subject to rules adopted by the division and shall become effec­tive on July 1, 1980.

(2)(a) The division shall adopt rules by which businesses may become qualified to provide under­writing claims-adjusting, loss control, and safety en­gineering services to self-insurers.

(b) The division shall adopt rules requiring self­insurers to file any reports necessary to fulfill the requirements of this chapter. Any self-insurer who fails to file any report as prescribed by the rules adopted by the division shall be subject to a civil penalty not to exceed $100 for each such failure.

(3)(a) The license of any stock company or mutu­al company or association or exchange authorized to do insurance business in the state shall for good cause, upon recommendation of the division, be sus­pended or revoked by the Department oflnsurance. No suspension or revocation shall affect the liability of any carrier already incurred.

(b) The division shall suspend or revoke any au­thorization to a self-insurer for good cause. No sus­pension or revocation shall affect the liability of any self-insurer already incurred.

(4)(a) No carrier of insurance, including the par­ties to any mutual, reciprocal, or other association, shall write any compensation insurance under this chapter without a permit from the Department of Insurance. Such permit shall be given, upon applica­tion therefor, to any insurance or mutual or recipro­cal insurance association upon the said department being satisfied of the solvency of such corporation or association and its ability to perform all its under­takings. The said department may revoke any per­mit so issued for violation of any provision of this chapter.

(b) No carrier of insurance, including the parties to any mutual, reciprocal, or other association, shall write any compensation insurance under this chap­ter unless such carrier shall have a claims adjuster, either in-house or under contract, situated within this state.

(c) Any insurer, rating bureau, or agent or other representative or employee of any insurer or rating bureau failing to comply with, or which is guilty of a violation of, any of the provisions of this chapter or of any order or ruling of the Department of Insur-

917

Ch. 440 WORKERS' COMPENSATION F.S.1979

ance made hereunder is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083. In addition thereto, the license of any insur­er, agent, or broker guilty of such violation may be revoked or suspended by the department.

(5) All insurance carriers authorized to write workers' compensation insurance in this state shall make available, at the option of the employer, an insurance policy containing a coinsurance provision which shall bind the carrier to pay 80 percent, and the employer to pay 20 percent, of the benefits due to an employee for an injury compensable under this chapter, up to the amount of $2,500 or $5,000. One hundred percent of the medical benefits above $2,-500 or $5,000, as the case may be, due to an employee for one injury shall be paid by the carrier. Regard­less of any coinsurance or deductible amount, the claim shall be paid by the applicable carrier, which shall then be reimbursed by the employer for any coinsurance or deductible amounts paid by the carri­er, and the employer shall be liable for such reim­bursement, except for any portion of a claim formed­ical benefits, up to the employer's liability under the coinsurance or deductible provisions. If a claim or a portion of a claim is for medical benefits, the benefits shall be paid by the employer, and the carrier shall act as guarantor therefor. Payments made by an employer pursuant to a coinsurance provision shall be made within the same time periods as those appli­cable to a carrier. Prior to issuance of any policy not containing a coinsurance provision, the carrier shall obtain from the employer a written rejection of such provision. No insurance carrier shall be required to offer coinsurance to any employer if, as a result of a credit investigation, the carrier determines that the employer is not sufficiently financially stable to be responsible for payment of such coinsurance amounts. The agent's commission shall be computed and paid on the basis of the policy without a coinsur­ance provision.

(6) The state and its boards, bureaus, depart­ments, and agencies and all of its political subdivi­sions which employ labor shall be deemed self-insur­ers under the terms of this chapter, unless they elect to procure and maintain insurance to secure the ben­efits of this chapter to their employees, and they are hereby authorized to pay the premiums for the said insurance.

History.-s. 38, ch. 17481, 1935; CGL 1936 Supp. 5966(37), 7476(7), 8135(13); s. 13, ch. 22637,1945; ss.13,17, 35, ch. 69-106; s. 367, ch. 71-136; s.ll, ch. 78-95; ss. 12, 23, ch. 78-300; ss. 29, 124, ch. 79-40; ss. 16, 21, ch. 79-312. cf.-s. 837.012 Perjury not in an official proceeding.

s. 837.02 Perjury in official proceedings.

440.39 Compensation for InJUries where third persons are liable.-

(1) If an employee, subject to the provisions of the Workers' Compensation Law, is injured or killed in the course of his employment by the negligence or wrongful act of a third-party tortfeasor, such injured employee or, in the case of his death, his dependents may accept compensation benefits under the provi­sions of this law, and at the same time such injured employee 'or his dependents or personal representa­tives may pursue his remedy by action at law or otherwise against such third-party tortfeasor.

(2) If the employee or his dependents shall accept compensation or other benefits under this law or

begin proceedings therefor, the employer or, in the event the employer is insured against liability here­under then the insurer, shall be subrogated to the rights of the employee or his dependents against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3).

(3)(a) In all claims or actions at law against a third-party tortfeasor, the employee, or his depend­ents or those entitled by law to sue in the event he is deceased, shall sue for the employee individually and for the use and benefit of the employer, if a self-insurer, or employer's insurance carrier, in the event compensation benefits are claimed or paid, and such suit may be brought in the name of the employee, or his dependents or those entitled by law to sue in the event he is deceased, as plaintiff or, at the option of such plaintiff, may be brought in the name of such plaintiff and for the use and benefit of the employer or insurance carrier, as the case may be. Upon suit being filed, the employer or the insur­ance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for com­pensation and medical benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover from the judgment, after attor­ney's fees and costs incurred by the employee or dependent in that suit have been deducted, 100 per­cent of what it has paid and future benefits to be paid, unless the employee or dependent can demon­strate to the court that he did not recover the full value of damages sustained because of comparative negligence or because oflimits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party. Notice of suit being filed shall be served upon the employer and compensation carrier and upon all parties to the suit or their attor­neys of record by the employee. Notice of payment of compensation benefits shall be served upon the em­ployee and upon all parties to the suit or their attor­neys of record by the employer and compensation carrier.

(b) If the employer or insurance carrier has given written notice of his rights of subrogation to the third-party tortfeasor, and, thereafter, settlement of any such claim or action at law is made, either before or after suit is filed, and the parties fail to agree on the proportion to be paid to each, the circuit court of the county in which the cause of action arose shall determine the amount to be paid to each by such third-party tortfeasor in accordance with the provi­sions of paragraph (a) above.

(4)(a) If the injured employee or his dependents, as the case may be, fail to bring suit against such third-party tortfeasor within 1 year after the cause of action thereof shall have accrued, the employer, if a self-insurer, and if not, the insurance carrier, may, after giving 30 days' notice to the injured employee or his dependents and the injured employee's attor­ney, if represented by counsel, institute suit against

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F.S.1979 WORKERS' COMPENSATION Ch. 440

such third-party tortfeasor, either in his own name or as provided by subsection (3), and, in the event suit is so instituted, shall be subrogated to and enti­tled to retain from any judgment recovered against, or settlement made with, such third party, the fol­lowing: All amounts paid as compensation and medi­cal benefits under the provisions of this law and the present value of all future compensation benefits payable, to be reduced to its present value, and to be retained as a trust fund from which future payments of compensation are to be made, together with all court costs, including attorney's fees expended in the prosecution of such suit, to be prorated as provided by subsection (3). The remainder of the moneys de­rived from such judgment or settlement shall be paid to the employee or his dependents, as the case may be.

(b) If the carrier or employer does not bring suit within 2 years following the accrual of the cause of action against a third-party tortfeasor, the right of action shall revert to the employee or, in the case of his death, those entitled by law to sue, and in such event the provisions of subsection (3) shall apply.

(5) In all cases under subsection (4) involving third-party tortfeasors, where compensation bene­fits under this law are paid, or are to be paid, settle­ment either before or after suit is instituted shall not be made except upon agreement of the injured em­ployee or his dependents and the employer or his insurance carrier, as the case may be.

(6) Any amounts recovered under this section by the employer or his insurance carrier shall be credit­ed against the loss-experience of said employer.

History.-s. 39, ch. 17481, 1935; CGL 1936 Supp. 5966(38); s. 14, ch. 18413, 1937; s. 1, ch. 23822, 1947; s. 1, ch. 26546, 1951; s. 1, ch. 59-431; s. 6, ch. 70-148; s. 18, ch. 74-197; s. 11, ch. 77-290; s. 23, ch. 78-300; ss. 30, 124, ch. 79-40; s. 21, ch. 79-312.

'Note.-The word "or" was inserted by the editors.

440.40 Compensation notice.-Every employ­er who has secured compensation under the provi­sions of this chapter shall keep posted in a conspicu­ous place or places in and about his place or places of business typewritten or printed notices, in accord­ance with a form prescribed by the division, stating that such employer has secured the payment of com­pensation in accordance with the provisions of this chapter. Such notices shall contain the name and address ofthe carrier, if any, with whom the employ­er has secured payment of compensation and the date of the expiration of the policy.

History.-s. 40, ch. 17481, 1935; CGL 1936 Supp. 5966(39); ss. 17, 35, ch. 69-106; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312.

440.41 Substitution of carrier for employer. -In any case where the employer is not a self-insur­er, in order that the liability for compensation im­posed by this chapter may be most effectively dis­charged by the employer, and in order that the ad­ministration of this chapter in respect of such liabili­ty may be facilitated, the division shall by regulation provide for the discharge, by the carrier for such employer, of such obligations and duties of the em­ployer in respect of such liability, imposed by this chapter upon the employer, as it considers proper in order to effectuate the provisions of this chapter. For such purposes:

(1) Notice to or knowledge of an employer of the

occurrence of the injury shall be notice to or knowl­edge of the carrier.

(2) Jurisdiction of the employer by the deputy commissioners, the division, the 'commission, or any court under this chapter shall be jurisdiction of the carrier.

(3) Any requirement by the deputy commission­ers, the division, the 'commission, or any court un­der any compensation order, finding, or decision shall be binding upon the carrier in the same man­ner and to the same extent as upon the employer.

History.-s. 41, ch. 17481, 1935; CGL 1936 Supp. 5966(40); ss. 17, 35, ch. 69-106; s. 19, ch. 75-209; s. 23, ch. 78-300; ss. 31, 124, ch. 79-40; s. 21, ch. 79-312.

'Note.-See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission, effective October 1, 1979.

440.42 Insurance policies; liability.-(!) Every policy or contract of insurance issued

under authority of this chapter shall contain: (a) A provision to carry out the provisions of s.

440.41; and (b) A provision that insolvency or bankruptcy of

the employer and discharge therein shall not relieve the carrier from payment of compensation for disa­bility or death sustained by an employee during the life of such policy or contract.

(2) No contract or policy of insurance issued by a carrier under this chapter shall expire or be can­celed until at least 30 days have elapsed after a no­tice of cancellation has been sent to the division and to the employer in accordance with the provisions of subsection 440.185(7). However, when duplicate or dual coverage exists by reason of two different carri­ers having issued policies of insurance to the same employer securing the same liability, it shall be pre­sumed that only that policy with the later effective date shall be in force and that the earlier policy terminated upon the effective date of the latter. In the event that both policies carry the same effective date, one of the policies may be canceled instanter upon filing a notice of cancellation with the division and serving a copy thereof upon the employer in such manner as the division by regulation may pre­scribe.

(3) When there is any controversy as to which of two or more carriers is liable for the discharge of the obligations and duties of one or more employers with respect to a claim for compensation, remedial treat­ment, or other benefits under this chapter, the depu­ty commissioner shall have jurisdiction to adjudicate such controversy; and if one ofthe carriers voluntar­ily or in compliance with a compensation order makes payments in discharge of such liability and it is finally determined that another carrier is liable for all or any part of such obligations and duties with respect to such claim, the carrier which has made payments either voluntarily or in compliance with a compensation order shall be entitled to reimburse­ment from the carrier finally determined liable, and the deputy commissioner shall have jurisdiction to order such reimbursement; however, if the carrier finally determined liable can demonstrate that it has been prejudiced by lack of knowledge or notice of its potential liability, such reimbursement shall

919

Ch. 440 WORKERS' COMPENSATION F.S.1979

be only with respect to payments made after it had knowledge or notice of its potential liability.

History.-s. 42, ch. 17481, 1935; CGL 1936 Supp. 5966(41); s. 11, ch. 29778, 1955; s. 3, ch. 57-225; s. 3, ch. 59-100; s. 1, ch. 65-204; ss. 17, 35, ch. 69-106; s. 1, ch. 73-185; s. 20, ch. 75-209; s. 23, ch. 78-300; ss. 32, 124, ch. 79-40; s. 21, ch. 79-312.

440.43 Penalty for failure to secure payment of compensation.-Any employer required to se­cure the payment of compensation under this chap­ter who fails to secure such compensation shall be guilty of a misdemeanor of the second degree, pun­ishable as provided in s. 775.082 or s. 775.083 and upon a complaint of the division being filed in the circuit court of the county in which said employer may be doing business, such employer may be en­joined from employing individuals and from con­ducting business until such payment for compensa­tion has been secured. However, the employer, upon written notice from the division, shall have 72 hours to secure such compensation prior to the filing of the complaint by the division. This section shall not af­fect any other liability of the employer under this chapter.

History.-s. 43, ch. 17481, 1935; CGL 1936 Supp. 8135(14); s. 368, ch. 71-136; s. 8, ch. 73-127, s. 23, ch. 78-300, s. 124, ch. 79-40; s. 21, ch. 79-312.

440.44 Workers' compensation; staff organi­zation.-

(1) INTERPRETATION OF LAW.-As a guide to the interpretation of this chapter, the Legislature takes due notice of federal social and labor acts and hereby creates an agency to administer such acts passed for the benefit of employees and employers in Florida industry, and desires to meet the require­ments of such federal acts wherever not inconsistent with the Constitution and laws of Florida.

(2) INTENT.-It is the intent of the Legislature that the division assume an active and forceful role in its administration of this act so as to ensure that the system operates efficiently and with maximum benefit to both employers and employees.

(3) EXPENDITURES.-The division shall make such expenditures, including expenditures for per­sonal services and rent at the seat of government and elsewhere, for law books; for telephone services and W A TS lines; for books of reference, periodicals, equipment, and supplies; and for printing and bind­ing as may be necessary in the administration of this chapter. All expenditures of the division in the ad­ministration of this chapter shall be allowed and paid as provided in s. 440.50 upon the presentation of itemized vouchers therefor approved by the divi­sion.

(4) MERIT SYSTEM PRINCIPLE OF PERSON­NEL ADMINISTRATION.-Subject to the other provisions of this chapter, the division is authorized to appoint, and prescribe the duties and powers of, bureau chiefs, attorneys, accountants, medical ad­visers, technical assistants, inspectors, claims exam­iners, and such other employees as may be necessary in the performance of its duties under this chapter.

(5) OFFICE.-The division shall maintain and keep open during reasonable business hours an of­fice, which shall be provided in the Capitol or some other suitable building in the City of Tallahassee, for the transaction of business under this chapter, at which office its official records and papers shall be

kept. The office shall be furnished and equipped by the division. The division, 2commission, or any 3judge of industrial claims may hold sessions and conduct hearings at any place within the state.

(6) SEAL.-The division shall have a seal upon which shall be inscribed the words "State of Florida Department of Labor and Employment Security­seal."

(7) DESTRUCTION OF OBSOLETE RECORDS. -The division is expressly authorized to provide by regulation for and to destroy obsolete records of the division and 2l:ommission.

'(8) ADVISORY COUNCIL.-The secretary may designate an advisory council to aid the division in formulating policies, discussing problems, and in as­suring impartiality and freedom from political influ­ence in the solution of such problems, related to the administration of this chapter or any other law ad­ministered by the division. The members of such advisory council shall receive no compensation for such services, but shall be reimbursed for traveling expenses as provided in s. 112.061.

(9) In the exercise of its duties and functions re­quiring administrative hearings, the division shall proceed in accordance with the Administrative Pro­cedure Act. The authority of the division to issue orders resulting from administrative hearings as provided for in this chapter shall not infringe upon the jurisdiction of the 3judges of industrial claims.

History.-s. 44, ch. 17481, 1935; CGL 1936 Supp. 5966(42); s. 15, ch. 18413, 1937; s. 1, ch. 20299, 1941; s. 1, ch. 21875, 1943; s. 4, ch. 22814, 1945; s. 1, ch. 23920, 1947; s. 10, ch. 26484, 1951; s. 11, ch. 28241, 1953; s. 24, ch. 57-1; s. 1, ch. 57-785; s. 1, ch. 57-156; s. 1, ch. 63-274; s. 19, ch. 63-400; s. 2, ch. 67-554; ss. 17, 35, ch. 69-106; s. 163, ch. 71-377; ss. 1, 2, ch. 72-143; s. 2, ch. 72-241; s. 1, ch. 73-283; s. 19, ch. 74-197; s. 21, ch. 75-209; s. 3, ch. 75-237; s. 23, ch. 78-300; s. 4, ch. 78-323; s. 18, ch. 79-7; ss. 33, 124, ch. 79-40; ss. 17, 21, ch. 79-312.

'Note.-Repealed by s. 4, ch. 78-323, effective October 1, 1981, except for the possible effect of laws affecting this section prior to that date.

'Note.--See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission and transferred all appeals pending before, and all property, lease­holds, equipment, and other assets of, the commission to the District Court of Appeals, First District, effective October 1, 1979. 'Note.--See s. 35, ch. 79-40, which changed the title of judges of industrial

claims to "deputy commissioners." cf.-s. 113.07 Bonds of officials.

440.442 Code of Judicial Conduct.-' Industri­al relations commissioners, the Chief Commissioner, and deputy commissioners shall observe and abide by the Code of Judicial Conduct adopted by the Su­preme Court of Florida as of July 1, 1978, as well as all amendments thereto that are hereafter adopted by the court. Any material violation of a canon of the Code of Judicial Conduct shall constitute either mal­feasance or misfeasance in office and shall be grounds for suspension and removal of such 'com­missioner, Chief Commissioner, or deputy commis­sioner by the Governor.

History.-ss. 13, 23, ch. 78-300; ss. 34, 124, ch. 79-40; ss. 18, 21, ch. 79-312. 'Note.--See s. 1, ch. 79-312, which abolished the Industrial Relations Com­

mission, effective October 1, 1979.

440.45 Deputy commissioners; Chief Com­missioner.-

(1) The Governor shall appoint as many full-time deputy commissioners as may be necessary to effec­tually perform the duties prescribed for them under this chapter. The Governor shall initially appoint a deputy commissioner from a list of at least three persons nominated by the appellate district judicial nominating commission for the appellate district in which the deputy commissioner will principally con-

920

F.S.1979 WORKERS' COMPENSATION Ch. 440

duct hearings. The meetings and determinations of the judicial nominating commission as to the deputy commissioners shall be open to the general public. No person shall be nominated or appointed as a full­time deputy commissioner who has not had 3 years' experience in the practice oflaw in this state; and no deputy commissioner shall engage in the private practice oflaw during a term of office. The Governor may appoint any former deputy commissioner to serve as a deputy commissioner pro hac vice to com­plete the proceedings on any claim with respect to which the deputy commissioner had heard testimo­ny and which remained pending at the time of the expiration of the deputy commissioner's term of of­fice . However, no former deputy commissioner shall be appointed to serve as a deputy commissioner pro hac vice for a period to exceed 60 successive days.

(2) Each full-time deputy commissioner shall be appointed for a term of 4 years, but during the term of office may be removed by the Governor for cause. Prior to the expiration of the term of office of the deputy commissioner, the conduct of said deputy commissioner shall be reviewed by the appellate dis­trict judicial nominating commission in the appel­late district in which the deputy commissioner prin­cipally conducts hearings, which commission shall determine whether said deputy commissioner shall be retained in office. A report of the decision shall be furnished to the Governor no later than 6 months prior to the expiration of the term of the deputy commissioner. If the judicial nominating commis­sion votes not to retain the deputy commissioner, the deputy commissioner shall not be reappointed but shall remain in office until a successor is appointed and qualified. If the judicial nominating commission votes to retain the deputy commissioner in office, then the Governor shall reappoint said deputy com­missioner for a term of 4 years.

(3) The deputy commissioners shall be within the Department of Labor and Employment Security un­der the secretary of that department. To assist the secretary in the administration of the deputy com­missioners, there shall be created the position of Chief Commissioner within the secretary's office. The Chief Commissioner shall not be subject to the provisions of subsections (1), (2), (4), or (5), but shall be appointed directly by the Governor and shall have had 3 years' experience in the practice oflaw in this state. The duties of the Chief Commissioner shall include, but not be limited to, the following:

(a) To be responsible for the coordination of the deputy commissioners and to serve as liaison be­tween the deputy commissioners and the Division of Workers' Compensation of the Department of Labor and Employment Security, between the deputy com­missioners and the courts, and between all the afore­mentioned parties and the department.

(b) To serve as a liaison between the deputy com­missioners and the division, making certain that all requirements of personnel, office space, equipment, supplies, research material, law books, and court re­porters are provided when needed.

(c) To determine the consensus of deputy com­missioners as relates to matters of concern to them and to present these views to the division on oehalf of the deputy commissioners.

(d) To act as liaison between the courts and the deputy commissioners for the purpose of promoting the workers' compensation jurisprudence and im­proving the system of disposition of cases at the trial and appellate levels, including, but not limited to, discussions regarding amendments in procedural rules, guidelines for preparation of transcripts on appeal, and dissemination of case law decisions.

(e) To arrange for exchange between the deputy commissioners and the division in matters of mutual interest, including, but not limited to, relations with court reporters, case load distribution, case disposi­tion, needed changes in forms used by the deputy commissioners, and determination of reasons for de­lays in the issuing of orders.

(f) To serve as liaison with the Division of Work­ers' Compensation; the Workers' Compensation Sec­tion ofThe Florida Bar; the Workers' Compensation Advisory Council; and the department.

(g) To serve as a "pro hac vice" deputy commis­sioner in the various parts of the state as determined by temporary changes in case load and as due to annual and sick leave taken.

(h) To assure a blind system of case assignment among deputy commissioners within the various dis­tricts and to undertake appropriate measures to keep dockets current for the deputy commissioners.

(i) To be responsible for the training and orienta­tion of new deputy commissioners.

(j) To ensure that administrative matters, in­cluding hearing delays, docket scheduling, review of joint petitions after entry by the deputy commission­ers, and all matters of case distribution, shall be effectively handled in accordance with this chapter and to report flagrant violations in these matters directly to the secretary and the Governor. In no event shall the Chief Commissioner, in handling these duties, interfere in any way with the judicial discretion of any court, or the quasi-judicial discre­tion of the deputy commissioners, in the indepen­dent decisions on matters before same for decision.

(k) Any and all other matters which he deems necessary for the efficient handling of workers' com­pensation cases.

(4) Each full-time deputy commissioner shall re­ceive a salary of $4,000 less per year than that paid to a full-time district court of appeal judge, payable out of the fund established in s. 440.50. The Chief Commissioner shall receive a salary of $1,000 more per year than that paid to a full-time deputy commis­sioner.

(5) The Governor may appoint any attorney who has 3 years' experience in the practice oflaw in this state to serve as a deputy commissioner pro hac vice in the absence or disqualification of any full-time deputy commissioner or to serve upon a temporary basis as an additional deputy commissioner in any area of the state in which it is determined by the Governor that a need exists therefor; however, no attorney so appointed by the Governor shall serve for a period to exceed 60 successive days.

(6) The division may delegate to its attorneys, examiners, safety representatives, field agents, in­spectors, and other legal representatives such pow-

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Ch. 440 WORKERS' COMPENSATION F.S.1979

ers and authority as it may deem necessary in the administration of this chapter.

History.-s. 45, ch. 17481, 1935; CGL 1936 Supp. 5966(43); s. 2, ch. 57-245; s. 1, ch. 61-133; s. 1, ch. 63-179; s. 1, ch. 63-275; s. 1, ch. 65-541; s. 1, ch. 67-515; s. 2, ch. 67-554; s. 1, ch. 69-201; ss. 17, 35, ch. 69-106; s. 1, ch. 70-313; s. 1, ch. 71-290; s. 20, ch. 74-197; s. 3, ch. 74-363; s. 22, ch. 75-209; ss. 14, 23, ch. 78-300; ss. 35, 124, ch. 79-40; ss. 19, 21, ch. 79-312.

440.46 Investigations by the division; refusal to admit; penalty.-

(1)(a) The division shall make studies and inves­tigations with respect to safety provisions and the causes of injuries in employments covered by this chapter, and shall make to the Legislature and em­ployers and carriers such recommendations as it may deem proper as to the best means of preventing injuries. In making such studies and investigations, the division is authorized:

1. To cooperate with any agency of the United States charged with the duty of enforcing any law securing safety against injury in any employment covered by this chapter, or any agency or depart­ment of the state engaged in enforcing any laws to assure safety for employees.

2. To permit any such agency or department to have access to the records of the division.

(b) The division and its authorized representa­tives shall have the power and authority to enter and inspect any place of employment at any reasonable time for the purpose of investigating compliance with this chapter and making inspections for the proper enforcement of this chapter. Any employer or owner who refuses to admit any member of the divi­sion or its authorized representative to any place of employment or to permit investigation and inspec­tion pursuant to this paragraph shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Should an accidental injury occur to any in­spector or employee of the division while engaged in his official duties, the division shall be considered an employer under the provisions of this chapter and shall compensate such injured employee or his de­pendents in accordance with the provisions hereof.

(3) No other claim on account of such accidental injury may be maintained by any person against any employer who has accepted the terms of this chap­ter, except as herein provided.

History.-s. 46, ch. 17481, 1935; CGL 1936 Supp. 5966(44); s. 16, ch. 18413, 1937; s. 4, ch. 57-225; s. 3, ch. 57-245; ss. 17, 35, ch. 69-106; s. 369, ch. 71-136; s. 8, ch. 77-320; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312.

440.47 Traveling expenses.-The 'commission, deputy commissioners, and employees of the 'com­mission and division shall be reimbursed for travel­ing expenses as provided ins. 112.061. Such expenses shall be sworn to by the person who incurred the same and shall be allowed and paid as provided in s. 440.50 upon the presentation of vouchers therefor approved by the 'commission or division, whichever is applicable.

History.-s. 47, ch. 17481, 1935; CGL 1936 Supp. 5966(45); s. 19, ch. 63-400; ss. 17, 35, ch. 69-106; s. 23, ch. 75-209; s. 23, ch. 78-300; ss. 36, 124, ch. 79-40; s. 21, ch. 79-312.

'Note.-See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission, effective October 1, 1979.

?f the administration of this chapter for the preced­mg calendar year, including a detailed statement of the receipts of and expenditures from the fund estab­lished in s. 440.50, a statement of the causes of the accidents leading to the injuries for which the awards were made, together with such recommenda­tions as the department deems advisable.

History.-s. 48, ch. 17481, 1935; CGL 1936 Supp. 5966(46); s. 12, ch. 20672, 1941; s. 12, ch. 28241, 1953; s. 24, ch. 57-1; ss.17, 35, ch. 69-106; s. 164, ch. 71-377; s. 23, ch. 78-300; s. 19, ch. 79-7; s. 124, ch. 79-40; s. 21, ch. 79-312.

440.49 Rehabilitation of injured employees· Special Disability Trust Fund.- '

(1) REHABILITATION OF INJURED EM­PLOYEES.-

(a) When an employee has suffered an injury cov­e:r:ed by this chapter and it appears that the injury w1ll preclude the employee from earning wages equal to wages ea~ned prior to the injury, the em­ployee shall be entitled to prompt rehabilitation ser­vices. The. employe~ ?r carrier, at its own expense, shall prov1de such mJured employee with appropri­ate training and education for suitable gainful em­ployment and may cooperate with federal and state 3:gencies_ for vocational education and with any pub­he or pnvate agency cooperating with such federal and state agencies in the vocational rehabilitation of such injured employees. For purposes of this section only, "suitable gainful employment" means employ­ment or self-employment which is reasonably attain­able in light of the individual's age, education, previ­ous oc~upation, and injury and which offers an op­portumty to restore the individual as soon as practi­cal and as nearly as possible to his average weekly earnings at the time of injury. If such services are not voluntarily offered or accepted, the Division of Workers' Compensation ofthe Department ofLabor and Employment Security, upon application of the employee, employer, or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for the evaluation of the practicality of, the need for and the kind ofs~rvice, treatment, or training, nece~sary and appropnate to restore the employee to suitable gainful emp~oyment. On receipt of such report, and after affordmg the parties an opportunity to be heard, the deputy commissioner may order that the service and treatmen_t . rec?mmended in the report, or such other rehab1htatwn treatment or service deemed necessary, be provided at the expense of the employer or carrier.

(b) The Division ofWorkers' Compensation shall continuously study the issue of rehabilitation both physical and vocational, and shall investigat~ and maintain a directory of all qualified rehabilitation facilities and agencies, both public and private.

(c) Prior to adjudicating an injured employee to be pe~m~nently and totally disabled, the deputy comm1sswner shall determine whether there is a reasonable probability that, with appropriate train­ing or education, the injured employee may be reha­bilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake

440.48 Annual report.-Annually on or before such training or education. March 15, the Department of Labor and Employ- (d) When it appears that rehabilitation is neces­ment Security shall make to the Governor a report sary and desirable to restore the injured employee to

922

F.S.1979 WORKERS' COMPENSATION Ch. 440

suitable gainful employment, the employee shall be entitled to reasonable and proper rehabilitation ser· vices for a period not to exceed 26 weeks, which peri­od may be extended for an additional period not to exceed 26 additional weeks, if such extended period is determined to be necessary and proper by the dep­uty commissioner. However, no carrier or employer shall be precluded from continuing such rehabili­tation beyond such period on a voluntary basis. If rehabilitation requires residence at or near a facility or an institution and away from the employee's cus­tomary residence, the reasonable cost of board, lodg­ing, or travel shall be borne by the employer or carri­er. Refusal to accept rehabilitation as deemed neces­sary by the deputy commissioner shall result in a 50 percent reduction in weekly compensation, includ­ing wage-loss benefits as determined pursuant to s. 440.15(3)(b), for each week of the period of refusal.

(e) Temporary disability benefits paid pursuant to s. 440.15(2)(a) and (4) shall include such period as may be reasonably required for training in the use of artificial members and appliances, and shall in­clude such period as the employee may be receiving training or education under a rehabilitation pro­gram pursuant to paragraphs (l)(a) and (d). Notwith­standing s. 440.02(22), the date of maximum medical improvement, for purposes ofs. 440.15(3)(b), shall be no earlier than the last day for which such tempo­rary disability benefits are paid.

(f) Any person who offers to secure employment or help or who gives information as to where such employment or help may be secured and who per­forms such acts exclusively in conjunction with ful­filling his responsibilities under this chapter to reha­bilitate injured or disabled individuals shall be ex­empt from the provisions of chapter 449, relating to private employment agencies.

(2) LIMITATION OF LIABILITY FOR SUBSE­QUENT INJURY THROUGH SPECIAL DISABILI­TY TRUST FUND.-

(a) Legislative intent.-It is the purpose of this subsection to encourage the employment of the phys­ically handicapped by protecting employers from ex­cess liability for compensation and medical expense when an injury to a handicapped worker merges with his preexisting permanent physical impair­ment to cause a greater disability, permanent im­pairment, or wage loss than would have resulted from the injury alone. The division shall inform all employers of the existence and function of the fund and shall interpret eligibility requirements liberal­ly. However, this subsection shall not be construed to create or provide any benefits for injured employees or their dependents not otherwise provided by this chapter. The entitlement of an injured employee or his dependents to compensation under this chapter shall be determined without regard to this subsec­tion, the provisions of which shall be considered only in determining whether an employer or carrier who has paid compensation under this chapter is entitled to reimbursement from the Special Disability Trust Fund.

(b) Definitions.-As used in this subsection: 1. "Permanent physical impairment" means any

permanent condition due to previous accident or dis­ease or any congenital condition which is, or is likely

to be, a hindrance or obstacle to employment, but not due to the natural aging process.

2. "Merger" describes or means that: a. Had the permanent physical impairment not

existed, the subsequent accident or occupational dis­ease would not have occurred;

b. The permanent disability, permanent impair­ment, or wage loss resulting from the subsequent accident or occupational disease is materially and substantially greater than that which would have resulted had the permanent physical impairment not existed and the employer has been required to pay, and has paid, permanent total disability, per­manent impairment, or wage-loss benefits for that materially and substantially greater disability; or

c. Death would not have been accelerated had the permanent physical impairment not existed.

3. "Excess permanent compensation" means that compensation for permanent impairment, wage-loss benefits, or permanent total disability or death benefits for which the employer or carrier is otherwise entitled to reimbursement from the Spe­cial Disability Trust Fund.

(c) Permanent impairment, wage loss, or perma­nent total disability after other physical impair­ment.-

1. Permanent impairment.-If an employee who has a preexisting permanent physical impairment incurs a subsequent permanent impairment from in­jury or occupational disease arising out of, and in the course of, his employment which merges with the preexisting permanent physical impairment to cause a permanent impairment, the employer shall, in the first instance, pay all benefits provided by this chapter, but, subject to the limitations specified in paragraph (f), such employer shall be reimbursed from the Special Disability Trust Fund created by paragraph (h) for 60 percent of all impairment bene­fits which the employer has been required to provide pursuant to s. 440.15(3)(a) as a result of the subse­quent accident or occupational disease.

2. Wage loss.-Ifan employee who has a preex­isting permanent physical impairment incurs a sub­sequent permanent impairment from injury or occu­pational disease arising out of, and in the course of, his employment which merges with the preexisting permanent physical impairment to cause a wage loss, the employer shall, in the first instance, pay all benefits provided by this chapter, but, subject to the limitations specified in paragraph (f), such employer shall be reimbursed from the Special Disability Trust Fund created by paragraph (h) for 60 percent of all compensation for wage loss which the employ­er has been required to provide pursuant to s. 440.15(3)(b) during the first 5 years after the date of maximum medical improvement and for 75 percent of all compensation for wage loss which the employ­er has been required to provide after the 5-year peri­od following the date of maximum medical improve­ment.

3. Permanent total disability.-lf an employee who has a preexisting permanent physical impair­ment incurs a subsequent permanent impairment from injury or occupational disease arising out of, and in the course of, his employment which merges with the preexisting permanent physical impair-

923

Ch. 440 WORKERS' COMPENSATION F.S.1979

ment to cause permanent total disability, the em­ployer shall, in the first instance, pay all benefits provided by this chapter, but, subject to the limita­tions specified in paragraph (f), such employer shall be reimbursed from the Special Disability Trust Fund created by paragraph (h) for all compensation for permanent total disability which is in excess of the first 175 weeks of permanent total disability compensation.

(d) When death results.-If death results from the subsequent permanent impairment contemplat­ed in paragraph (c) within 1 year after the subse­quent injury, or within 5 years after the subsequent injury when disability has been continuous since the subsequent injury, and it shall be determined that the death resulted from a merger, the employer shall, in the first instance, pay the funeral expenses and the death benefits prescribed by this chapter, but, subject to the limitations specified in paragraph (f) , he shall be reimbursed from the Special Disabili­ty Trust Fund created by this subsection for the last 75 percent of all compensation allowable and paid for such death and for 75 percent of the amount paid as funeral expenses.

(e) Reimbursement for compensation paid for temporary disability or medical benefits.-Subject to the limitations specified in paragraph (f), and when the preexisting permanent physical impairment has contributed to the need, either medically or circum­stantially, for temporary disability and remedial treatment, care, and attendance, an employer enti­tled to reimbursement from the Special Disability Trust Fund for compensation paid for permanent impairment, wage loss, permanent total disability, or death shall be reimbursed from said fund for 50 percent of the first $10,000 paid as compensation for temporary disability and remedial treatment, care, and attendance pursuant to s. 440.13, for the same injury; thereafter, the employer shall be reimbursed from said fund for all sums paid by the employer as compensation for temporary disability and remedial treatment, care, and attendance pursuant to s. 440.13 which are in excess of $10,000.

(f) Reimbursement limitations.-!. No reimbursement shall be allowed under this

subsection unless it is established that the employer reached an informed conclusion prior to the occur­rence of the subsequent injury or occupational dis­ease that the preexisting physical condition is per­manent and is, or is likely to be, a hindrance or obstacle to employment. However, when the employ­er establishes that he knew of the preexisting perma­nent physical impairment prior to the subsequent accident or occupational disease, there shall be a conclusive presumption that the employer consid­ered the condition to be permanent and to be, or likely to be, a hindrance or obstacle to employment, when said condition is one of the following:

a . Epilepsy. b. Diabetes. c. Cardiac disease. d. Marie-Strumpell disease. e. Amputation of foot, leg, arm, or hand. f. Total loss of sight of one or both eyes or a

partial loss of corrected vision of more than 75 per­cent bilaterally.

g. Residual disability from poliomyelitis. h. Cerebral palsy. 1. Multiple sclerosis. j. Parkinson's disease. k. Vascular disorder. l. Psychoneurotic disability following confine­

ment for treatment in a recognized medical or men­tal institution for a period in excess of 6 months.

m. Hemophilia. n. Chronic osteomyelitis. o. Ankylosis of a major weight-bearing joint. p. Hyperinsulinism. q. Muscular dystrophy. r . Thrombophlebitis. s. Herniated intervertebral disc. t. Surgical removal of an intervertebral disc

or spinal fusion. u. Total deafness. v. Mental retardation, provided the em­

ployee's intelligence quotient is such that he falls within the lowest 2 percentile of the general popula­tion. However, it shall not be necessary for the em­ployer to know the employee's actual intelligence quotient or actual relative ranking in relation to the intelligence quotient of the general population.

w. Any permanent physical condition which, pri­or to the industrial accident or occupational disease, constitutes a 20-percent impairment of a member or of the body as a whole.

2. The Special Disability Trust Fund shall not be liable for any costs, interest, penalties, or attorneys' fees.

3. An employer's or carrier's right to apportion­ment or deduction pursuant to ss. 440.02(18), 440.15(5)(b), and 440.151(1)(c) shall not preclude re­imbursement from said fund, except when the merg­er comes within the definition of paragraph (b)2.b. and such apportionment or deduction relieves the employer or carrier from providing the materially and substantially greater permanent disability ben­efits otherwise contemplated in said paragraphs.

(g) Reimbursement of employer.-The right to re­imbursement as provided in this subsection shall be barred unless written notice of claim of the right to such reimbursement is filed by the employer or car­rier entitled to such reimbursement with the divi­sion at Tallahassee prior to 60 days after the order awarding the excess permanent compensation with respect to which such reimbursement is claimed be­comes final or, if payment of such excess permanent compensation is made by the employer or carrier without an award, prior to 60 days after the date the first payment of excess compensation for the perma­nent disability was made. The notice of claim shall contain such information as the division by rule may require; and the employer or carrier claiming reim­bursement shall furnish such evidence in support of the claim as the division reasonably may require. For notice of claims on the Special Disability Trust Fund filed on or after July 1, 1978, the Special Disa­bility Trust Fund shall, within 120 days of receipt of notice that a carrier has paid, been required to pay, or accepted liability for excess compensation, serve notice of the acceptance of the claim for reimburse­ment. Failure of the Special Disability Trust Fund to serve the notice shall be deemed a denial by the

924

F.S.1979 WORKERS' COMPENSATION Ch. 440

Special Disability Trust Fund of the claim for reim­bursement. If the Special Disability Trust Fund through its representative denies or controverts the claim, the right to such reimbursement shall be barred unless an application for a hearing thereon is filed with the division at Tallahassee within 60 days after notice to the employer or carrier of such denial or controversion. When such application for a hear­ing is timely filed, the claim shall be heard and de­termined in accordance with the procedure pre­scribed in s. 440.25, to the extent that same is appli­cable, and in accordance with the workers' compen­sation rules of procedure. In such proceeding on a claim for reimbursement, the Special Disability Trust Fund shall be made the party respondent, and no findings of fact made with respect to the claim of the injured employee or the dependents for compen­sation, including any finding made or order entered pursuant to s. 440.20(12), shall be res judicata. The Special Disability Trust Fund shall not be joined or made a party to any controversy or dispute between an employee and the dependents and the employer or between two or more employers or carriers with­out the written consent of the fund. When it has been determined that an employer or carrier is entitled to reimbursement in any amount, the employer or car­rier shall be reimbursed periodically every 6 months from the Special Disability Trust Fund for the com­pensation and medical benefits paid by the employer or carrier for which same is entitled to reimburse­ment, upon filing request therefor and submitting evidence of such payment in accordance with rules prescribed by the division.

(h)l. Special Disability Trust Fund.-There is es­tablished in the State Treasury a special fund to be known as the "Special Disability Trust Fund," which shall be available only for the purposes stated in this subsection, and the assets thereof shall not at any time be appropriated or diverted to any other use or purpose. The Treasurer shall be the custodian of such fund, and all moneys and securities in such fund shall be held in trust by such Treasurer and shall not be the money or property of the state. The Treasurer is authorized to disburse moneys from such fund only when approved by the division and upon the order of the Comptroller, countersigned by the Governor. The Treasurer shall deposit any mon­eys paid into such fund into such depository banks as the division may designate and is authorized to in­vest any portion of the fund which, in the opinion of the division, is not needed for current requirements, in the same manner and subject to all the provisions of the law with respect to the deposits of state funds by such Treasurer. All interest earned by such por­tion of the fund as may be invested by the Treasurer shall be collected by him and placed to the credit of such fund.

2. Payments to Special Disability Trust Fund. -The Special Disability Trust Fund shall be main­tained by annual assessments upon the insurance companies writing compensation insurance in the state and the self-insurers under this chapter, com­mencing with the fiscal year beginning July 1, 1963, which assessments shall become due and be paid on a quarterly basis at the same time and in addition to the assessments provided in s. 440.51. The division

shall estimate annually in advance the amount nec­essary for the administration of this subsection and the maintenance of this fund and shall make such assessment in the manner hereinafter provided. The annual assessment shall be calculated to produce during the ensuing fiscal year an amount which, when combined with that part of the balance in the fund on June 30 of the current fiscal year which is in excess of$100,000, is equal to the sum of disburse­ments from the fund during the immediate past 3 calendar years. Such amount shall be prorated among the insurance companies writing compensa­tion insurance in the state and self-insurers. The net premiums collected by the companies on workers' compensation premiums in this state and the amount of premiums a self-insurer, if insured, would have to pay in this state are the basis for computing the amount to be assessed as a percentage of net premiums. Such payments shall be made by each insurance company and self-insurer to the division for the Special Disability Trust Fund, in accordance with such regulations as the division may prescribe. The Treasurer is authorized to receive and credit to such Special Disability Trust Fund any sum or sums that may at any time be contributed to the state by the United States under any Act of Congress, or oth­erwise, to which the state may be or become entitled by reason of any payments made out of such fund.

(i) Division administration of fund; claims, etc. -The division shall administer the Special Disabili­ty Trust Fund with authority to allow, deny, compro­mise, controvert, and litigate claims made against it and to designate an attorney to represent it in pro­ceedings involving claims against the fund, includ­ing negotiation and consummation of settlements, hearings before deputy commissioners and the 1commission, and judicial review. Upon the applica­tion of the division or any party in interest, the 1commission may, in accordance with the procedure prescribed in s. 440.25, review orders of deputy com­missioners by which the fund may be adversely af­fected. The division or the attorney designated by it shall be given notice of all hearings and proceedings involving the rights or obligations of such fund and shall have authority to make expenditures for such medical examinations, expert witness fees, deposi­tions, transcripts of testimony, and the like as may be necessary to the proper defense of any claim. The division shall appoint an advisory committee com­posed of representatives of management, compensa­tion insurance carriers, and self-insurers to aid it in formulating policies with respect to conservation of the fund, who shall serve without compensation for such terms as specified by it, but be reimbursed for traveling expenses as provided in s. l12.061. All ex­penditures made in connection with conservation of the fund, including the salary of the attorney desig­nated to represent it and necessary travel expenses, shall be allowed and paid from the Special Disability Trust Fund as provided in this subsection upon the presentation of itemized vouchers therefor approved by the division.

(j) Effective dates.-The provisions of this subsec­tion shall not be applicable to any case in which the accident causing the subsequent injury or death or the disablement or death from a subsequent occupa-

925

Ch. 440 WORKERS' COMPENSATION F.S.1979

tional disease shall have occurred prior to July 1, 1955; and the provisions of paragraphs (e) and (f) of this subsection shall not be applicable to any case in which the accident causing the subsequent injury or death or the disablement or death from a subsequent occupational disease shall have occurred prior to July 1, 1963.

History.-s. 49, ch. 17481, 1935; CGL 1936 Supp. 5966(47); s. 13, ch. 28241, 1953; s. 12, ch. 29778, 1955; s. 1, ch. 59-101; s. 2, ch. 63-235; s. 19, ch. 63-400; s. 2, ch. 67-554; ss. 17, 35, ch. 69-106; s. 21, ch. 74-197; s. 24, ch. 75-209; ss. 151, 152, ch. 77-104; ss. 15, 23, ch. 78-300; ss. 37, 124, ch. 79-40; s. 21, ch. 79-312.

'Note.--See s. 1, ch. 79-312, which abolished the Industrial Relations Com­mission and transferred all appeals pending before the commission to the District Court of Appeals, First District, effective October 1, 1979.

440.50 Workers' Compensation Administra­tion Trust Fund.-

(l)(a) There is established in the State Treasury a special fund to be known as the "Workers' Com­pensation Administration Trust Fund" for the pur­pose of providing for the payment of all expenses in respect to the administration of this chapter, includ­ing the vocational rehabilitation of injured em­ployees as provided in s. 440.49 and the payments due under s. 440.15(1)(e). Such fund shall be adminis­tered by the division. The Treasurer shall be the custodian of such fund, and all moneys and securi­ties in such fund shall be held in trust by such Trea­surer and shall not be the money or property of the state.

(b) The division is authorized to transfer as a loan an amount not in excess of $250,000 from such special fund to the Special Disability Trust Fund established by s. 440.49(4), which amount shall be repaid to said special fund in annual payments equal to not less than 10 percent of moneys received for such Special Disability Trust Fund.

(2) The State Treasurer is authorized to disburse moneys from such fund only when approved by the division and upon the order of the Comptroller, countersigned by the Governor. He shall be required to give bond in an amount to be approved by the division conditioned upon the faithful performance of his duty as custodian of such fund.

(3) The State Treasurer shall deposit any moneys paid into such fund into such depository banks as the division may designate and is authorized to invest any portion of the fund which, in the opinion of the division, is not needed for current requirements, in the same manner and subject to all the provisions of the law with respect to the deposit of state funds by such Treasurer. All interest earned by such portion of the fund as may be invested by the State Treasur­er shall be collected by him and placed to the credit of such fund.

(4) All civil penalties provided in this chapter, if not voluntarily paid, may be collected by civil suit brought by the division and shall be paid into such fund.

History.-s. 50, ch. 17481, 1935; CGL 1936 Supp. 5966(48); s. 13, ch. 29778, 1955; s. 2, ch. 61-119; ss. 17, 35, ch. 69-106; s. 22, ch. 74-197; s. 23, ch. 78-300; ss. 38, 124, ch. 79-40; s. 21, ch. 79-312.

440.51 Expenses of administration.-(!) The division shall estimate annually in ad­

vance the amounts necessary for the administration of this chapter, in the following manner.

(a) The division shall as soon as practicable after July 1 in each year, determine the expense ofadmin-

istration of this chapter for the preceding fiscal year. The expense of administration for such preceding fiscal year shall be used as the basis for determining the amount to be assessed against each carrier in order to provide for the expenses of the administra­tion of this chapter for the current fiscal year.

(b) The total expenses of administration shall be prorated among the insurance companies writing compensation insurance in the state, and self-insur­ers. The net premiums collected by the companies and the amount of premiums a self-insurer would have to pay if insured are the basis for computing the amount to be assessed. This amount may be assessed as a specific amount or as a percentage of net premi­ums payable as the division may direct, provided such amount so assessed shall not exceed 4 percent of such net premiums. The insurance companies may elect to make the payments required under s. 440.15(1)(e) rather than having these payments made by the division. In that event, such payments will be credited to the insurance companies, and the amount due by the insurance company under this section will be reduced accordingly.

(2) The division shall provide by regulation for the collection of the amounts assessed against each carrier. Such amounts shall be paid within 30 days from the date that notice is served upon such carrier. If such amounts are not paid within such period, there may be assessed for each 30 days the amount so assessed remains unpaid, a civil penalty equal to 10 percent of the amount so unpaid, which shall be collected at the same time and a part of the amount assessed.

(3) If any carrier fails to pay the amounts as­sessed against him under the provisions of this sec­tion within 60 days from the time such notice is served upon him, the Department oflnsurance upon being advised by the division may suspend or revoke the authorization to insure compensation in accord­ance with the procedure in s. 1440.38(3)(a).

(4) All amounts collected under the provisions of this section shall be paid into the fund established in s. 440.50.

(5) Any amount so assessed against and paid by an insurance carrier shall be allowed as a deduction against the amount of any other tax levied by the state upon the premiums, assessments, or deposits for workers' compensation insurance on contracts or policies of said insurance carrier.

(6)(a) The division may require from each carri­er, at such time and in accordance with such regula­tions as the division may prescribe, reports in re­spect to all gross earned premiums and of all pay­ments of compensation made by such carrier during each prior period, and may determine the amounts paid by each carrier and the amounts paid by all carriers during such period.

(b) The division may require from each self-in­surer, at such time and in accordance with such reg­ulations as the division may prescribe, reports in respect to wages paid, the amount of premiums such self-insurer would have to pay if insured, and all payments of compensation made by such self-insurer during each prior period, and may determine the amounts paid by each self-insurer and the amounts paid by all self-insurers during such period. For the

926

F.S.1979 WORKERS' COMPENSATION Ch. 440

purposes of this section the payroll records of each self-insurer shall be open to annual inspection and audit by the division or its authorized representa­tive, during regular business hours; and if any audit of such records of a self-insurer discloses a deficiency in the amounts reported to the division or in the amounts paid to the division by such self-insurer pursuant to this section, the division may assess the cost of such audit against such self-insurer.

(7) The division shall keep accumulated cost records of all injuries occurring within the state com­ing within the purview of this chapter on a policy and calendar year basis. For the purpose of this chapter, a "calendar year" is defined as the year in 'Which the injury is reported to the division; "policy year" is defined as that calendar year in which the policy becomes effective and the losses under such policy shall be chargeable against the policy year so defined.

(8) The division shall assign an account number to each employer under this chapter and an account number to each insurance carrier authorized to write workers' compensation insurance in the state, and it shall be the duty of the division under the account number so assigned to keep the cost experi­ence of each carrier and the cost experience of each employer under the account number so assigned by calendar and policy year as above defined.

(9) In addition to the above, it shall be the duty of the division to keep the accident experience, as classified by the division, by industry as follows:

(a) Cause of the injury; (b) Nature of the injury, and (c) Type of disability. (10) In every case where the duration of disabili­

ty exceeds 30 days, the carrier shall establish a suffi­cient reserve to pay all benefits to which the injured employee, or in case of death, his dependents, may be entitled to under the law. In establishing the re­serve, consideration shall be given to the nature of the injury, the probable period of disability, and the estimated cost of medical benefits.

(11) The division shall furnish to any employer or carrier, upon request, its individual experience. The division shall furnish to the Department of In­surance, upon request, the Florida experience as de­veloped under policy year or calendar year.

(12) In addition to any other penalties provided by this law, the failure to submit any report or other information required by this law shall be just cause to suspend the right of a self-insurer to operate as such; or, upon certification by the division to the Department oflnsurance that a carrier has failed or refused to furnish such reports shall be just cause for the Department of Insurance to suspend or revoke the license of such carrier.

History.-s. 51, ch. 17481, 1935; CGL 1936 Supp. 5966(49); s. 17, ch. 18413, 1937; s. 1, ch. 24081, 1947; s. 14, ch. 28241, 1953; ss. 14, 15, ch. 29778, 1955; ss. 13, 17, 35, ch. 69-106; s. 23, ch. 74-197; s. 25, ch. 75-209; s. 23, ch. 78-300; ss. 39, 124, ch. 79-40; s. 21, ch. 79-312. 'Note.-The cross-reference "440.38(3)(a)" was substituted for "440.38(2)"

by the editors to conform to renumbering.

440.52 Registration of insurance carriers; suspension or revocation of authority.-

(!) Each insurance carrier who desires to write such compensation insurance in compliance with this chapter shall be required, before writing such

insurance, to register with the division and pay a registration fee of $100. This shall be deposited by the division in the fund created by s. 440.50.

(2) If the division finds, after due notice and a hearing at which the insurance carrier is entitled to be heard in person or by counsel and present evi­dence, that the insurance carrier has repeatedly failed to comply with its obligations under this chap­ter, the division may request the Department of In­surance to suspend or revoke the authorization of such insurance carrier to write workers' compensa­tion insurance under this chapter. Such suspension or revocation shall not affect the liability of any such insurance carrier under policies in force prior to the suspension or revocation.

History.-s. 52, ch. 17481, 1935; CGL 1936 Supp. 5966(50); ss. 17, 35, ch. 69-106; s. 1, ch. 70.30; s. 1, ch. 70.439; s. 23, ch. 78-300; ss. 40, 124, ch. 79-40; s. 21, ch. 79-312.

440.53 Effect of unconstitutionality.-lf any part of this chapter is adjudged unconstitutional by the courts, and such adjudication has the effect of invalidating any payment of compensation under this chapter, the period intervening between the time the injury was sustained and the time of such adjudication shall not be computed as a part of the time prescribed by law for the commencement of any action against the employer in respect of such inju­ry; but the amount of any compensation paid under this chapter on account of such injury shall be de­ducted from the amount of damages awarded in such action in respect of such injury.

History.-s. 53, ch. 17481, 1935; CGL 1936 Supp. 5966(51); s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312.

440.54 Violation of child labor law.-If the deputy commissioner determines that an injured employee at the time of an accident is a minor em­ployed, permitted, or suffered to work in violation of any of the provisions of the child labor laws of Flori­da, the employer shall, in addition to the normal compensation and death benefits provided by this chapter, pay such additional compensation as the deputy commissioner may determine according to the circumstances of the case or the seriousness of the violation; however, the total compensation so payable shall not exceed double the amount other­wise payable under this chapter. The employer alone, and not the insurance carrier, shall be liable for the increased compensation or increased death benefits provided for by this section. Any provision in an insurance policy undertaking to protect an employer from such increased liability shall be void.

History.-s. 18, ch. 18413, 1937; CGL 1940 Supp. 5966(54); s. 15, ch. 28241, 1953; ss. 17, 35, ch. 69-106; s. 26, ch. 75-209; s. 23, ch. 78-300; ss. 41, 124, ch. 79-40; s. 21, ch. 79-312.

440.55 Proceedings against state.-Any per­son entitled to compensation benefits by reason of the injury or death of an employee of the state, its boards, bureaus, departments, agencies, or subdivi­sions employing labor, may maintain proceedings and actions at law against the state, its boards, bu­reaus, departments, agencies, and subdivisions, for such benefit, said proceedings and action at law to be

927

Ch. 440 WORKERS' COMPENSATION F.S.1979

in the same manner as provided herein with respect to other employers.

History.-s. 19, ch. 18413, 1937; CGL 1940 Supp. 5966(55); s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312.

440.56 Safety rules and provisions; penal­ty.-

(1) Every employer as defined in s. 440.02 shall furnish employment which shall be safe for the em­ployees therein, furnish and use safety devices and safeguards, adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe, and do every other thing reasonably necessary to protect the life, health, and safety of such employees. As used in this section, the terms "safe" and "safety" as applied to any employment or place of employment shall mean such freedom from danger as is reasonably neces­sary for the protection of the life, health, and safety of employees or the public, including conditions and methods of sanitation and hygiene. Safety devices and safeguards required to be furnished by the em­ployer by the provisions of this section or by the division under authority of this section shall not in­clude personal apparel and protective devices that replace personal apparel normally worn by em­ployees during regular working hours.

(2) The division shall have the power, jurisdic­tion and authority:

(a) To investigate and prescribe what safety de­vices, safeguards or other means of protection shall be adopted for the prevention of accidents in every employment or place of employment, and to deter­mine what suitable devices, safeguards, or other means of protection for the prevention of industrial or occupational diseases shall be adopted or followed in any or all such employments, or places of employ­ment, and to make, amend or repeal reasonable rules for the prevention of accidents and the preven­tion of industrial or occupational diseases.

(b) To ascertain, fix, and order such reasonable standards and rules for the construction, repair and maintenance of places of employment as shall render them safe. Such rules and standards shall be adopted in accordance with chapter 120.

(3) The division and its authorized representa­tives shall have the power and authority to enter at any reasonable time any place of employment for the purpose of examining any tool, appliance, or ma­chinery used in such employment and of making inspections for the proper enforcement of this sec­tion. No employer or owner shall refuse to admit any member of the division or its authorized representa­tives to any place of employment.

(4) All insurance carriers writing workers' com­pensation insurance in this state and all employers qualifying as self-insurers under ss. 440.38 and 440.57 shall provide safety consultations to each of their policyholders requesting such consultations. All such carriers and self-insurers shall inform their policyholders of the availability of such consulta­tions and shall report annually on their safety pro­grams and consultations to the division in such form and at such time as the division shall prescribe. The division shall be responsible for approving all safety programs. The division shall aid all insurance carri­ers and self-insurers in establishing their safety pro-

grams by setting out guidelines in an appropriate format. In addition, the division may approve a safe­ty program submitted to it by a carrier or self-insur­er.

(5) If any employer violates or fails or refuses to comply with any reasonable rule adopted by the divi­sion, in accordance with chapter 120, for the preven­tion of accidents or industrial or occupational diseas­es or any lawful order of the division in connection with the provisions of this section or fails or refuses to furnish or adopt any safety device, safeguard, or other means of protection prescribed by the division pursuant to this section for the prevention of acci­dents or industrial or occupational diseases, after the employer has been given reasonable notice in writing by the division or its authorized representa­tive, not less than 15 days prior thereto, of the specif­ic violation, omission, failure, or refusal charged by the division, or its authorized representative, the di­vision, after notice and hearing in accordance with chapter 120, may assess against such employer a civil penalty of not less than $20 nor more than $100. Each day such violation, omission, failure, or refusal continues after the employer has been given notice thereof in writing as herein provided shall be deemed a continuing violation, and the penalty may not exceed $1,000. The hearing shall be held in the county where the violation, omission, failure, or re­fusal is alleged to have occurred, unless otherwise agreed to by the employer and authorized by the division.

(6) In estimating the amounts necessary for the administration of this chapter, in accordance with s. 440.51, the division shall also include estimates of the amounts necessary for the administration of this section which shall be made in the manner set forth in s. 440.51; and such amounts as may be needed to administer this section shall be disbursed from the fund established pursuant to s. 440.50 in the manner therein provided. If this subsection or the applica­tion of such funds to the administration of this sec­tion be declared invalid for any reason, the validity of ss. 440.50 and 440.51 as applied to the provisions of this chapter other than this section shall not be affected thereby.

(7) The division shall appoint and fix the salary of a full-time administrator ofindustrial safety, who shall be appointed in accordance with the provisions ofs. 440.44(4); however, no person shall be appointed to such position unless he either has a degree from a recognized college of engineering and the equiva­lent of 8 full years' experience in safety engineering or has had the equivalent of 10 full years' experience in safety engineering. It shall be the duty of the administrator of industrial safety, under the direc­tion and supervision of the division, to enforce the safety provisions of this chapter and all rules and regulations adopted by the division pursuant to this section.

(8) The division shall cooperate with the Federal Government so that duplicate inspections will be avoided yet assure safe places of employment for the citizens of this state.

History.- s. 20, ch. 18413, 1937; CGL 1940 Supp. 5966(56); s. 2, ch. 24081, 1947; s. 11, ch . 25035, 1949; s. 16, ch. 29778, 1955; ss. 2, 3, ch. 57-293; ss. 1-3, ch. 61-428; s. 30, ch. 63-512; s. I , ch. 67-554; s. I , ch . 69-267; ss. 4, 17, 35, ch.

928

F.S.1979 WORKERS' COMPENSATION Ch. 440

69-106; s. 3, ch. 70-148; s. 1, ch. 70-439; s. 2, ch. 72-243; ss. 27, 30, ch. 75-209; s. 11, ch. 78-95; s. 23, ch. 78-300; ss. 42, 124, ch. 79-40; ss. 20, 21, ch. 79-312.

440.57 Pooling liabilities.-(!) The division shall adopt rules permitting two

or more employers to enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as a group self-insurer's fund, which shall be classified as a self-insurer, and each employer member of such approved group shall be known as a group self-insurer's fund member and shall be clas­sified as a self-insurer as defined in this chapter. The agreement entered into under this section may pro­vide that the pool shall be liable for 80 percent, and the employer member shall be liable for 20 percent, of the medical benefits due any employee for an inju­ry compensable under this chapter up to the amount of$5,000. One hundred percent of the medical bene­fits above $5,000 due to an employee for one injury shall be paid by the pool. The agreement may also provide that each employer member shall be respon­sible for the first $100 of medical benefits due each of its employees for each injury. The claim shall be paid by the pool, regardless of its size, which shall be reimbursed by the employer for any amounts re­quired to be paid by the employer under the agree­ment.

(2) The division shall adopt rules: (a) Requiring monetary reserves to be main­

tained by such self-insurers to insure their financial solvency; and

(b) Governing their organization and operation to assure compliance with such requirements.

(3) The division shall promulgate rules imple­menting the reserve requirements in accordance with accepted actuarial techniques.

(4) Any self-insurer established under this sec­tion, except for self-insurers which are state or local governmental entities, shall be required to carry re­insurance in accordance with rules promulgated by the division.

(5) The division may impose civil penalties not to exceed $100 per occurrence for violations of the pro­visions of this chapter or rules adopted pursuant hereto.

History.-s. 20Y,, ch. 18413, 1937; CGL 1940 Supp. 5966(57); ss. 17, 35, ch. 69-106; ss. 16, 23, ch. 78-300; ss. 43, 124, ch. 79-40; s. 21, ch. 79-312.

440.58 Self-insurer members; payment of de­linquent premiums and assessments.-Upon pe-

tition of the trustees of the following self-insurers groups: Printing Industry Associates, Allied Gaso­line Retailers Association, Florida Plumbing and Mechanical Contractors, Florida State Retailers As­sociation, Automotive Industries of Florida, Florida Nurserymen and Growers Association, Florida Pest Control Association, Florida Wholesalers Associa­tion, Florida Electrical Contractors, Florida Home Builders, Florida Restaurant Association, and Flori­da Nursing Home Association, who entered into agreements with Robert F. Coleman of Florida, Inc., as servicing agent, or any other self-insurers groups similarly situated, the division shall enter its order requiring the employer members and former mem­

. hers of said groups liable therefor to pay all delin­quent premiums and all necessary assessments, such payments to be paid to the division and by it dis­bursed to said trustees to be used for the payment of workers' compensation claims and related compenc sation expenses.

History.-s. 2, ch. 67-606; ss. 17, 35, ch. 69-106; s. 23, ch. 78-300; ss. 44, 124, ch. 79-40; s. 21, ch. 79-312.

440.59 Risk management report.-The Divi­sion ofWorkers' Compensation of the Department of Labor and Employment Security shall complete on a quarterly basis an analysis of the previous quar­ter's injuries which resulted in workers' compensa­tion claims. The analysis shall be broken down by risk classification, shall show for each such risk clas­sification the frequency and severity for the various types of injury, and shall include an analysis of the causes of such injuries. The division shall distribute to each employer and self-insurer in the state cov­ered by the Workers' Compensation Law the data relevant to its work force. The report shall also be distributed to the insurers authorized to write work­ers' compensation insurance in the state.

History.-ss. 17, 23, ch. 78-300; s. 20, ch. 79-7; ss. 45, 124, ch. 79-40; s. 21, ch. 79-312.

440.60 Application of laws.-(1) Chapter 79-40, Laws of Florida, shall apply to

all claims for injury arising out of accidents occur­ring on or after August 1, 1979.

(2) Sections 6-20 of chapter 79-312, Laws of Flori­da, shall apply to all claims for injury arising out of accidents occurring on or after August 1, 1979.

History.-s. 127, ch. 79-40; ss. 23, 25, ch. 79-312.

929

Ch. 441 EMPLOYEES TRUST BENEFIT PLANS F.S.1979

CHAPTER 441

EMPLOYEES TRUST BENEFIT PLANS

441.01 Trust for employees. 441.02 Trust for self-employed individuals and oth­

ers.

441.01 Trust for employees.-A trust created by an employer as part of a stock bonus plan, pension plan, disability or death benefit plan, or profit shar­ing plan, for the exclusive benefit of some or all of his employees, to which contributions are made by such employer or employees, or both for the purpose of distributing to such employees the earnings or the principal, or both earnings and principal, of the fund so held in trust, shall not be deemed to be invalid as violating any existing law against perpetuities or suspension ofthe power of alienation oftitle to prop­erty; but such a trust may continue for such time as may be necessary to accomplish the purposes for which it may be created.

History.-s. 1, ch. 29948, 1955.

441.02 Trust for self-employed individuals and others.-No trust created under a retirement plan for which provision has been made under the laws of the United States exempting such trust from. federal income tax shall be deemed to be invalid as violating any existing laws against perpetuities or suspension of the power of alienation of title to prop­erty or the accumulation of income; but such a trust may continue for such time as may be necessary to accomplish the purposes for which it may be created, may be permitted to accumulate the income until such time as such income shall become distributable to the beneficiary or beneficiaries under the terms of the trust and may according to its terms be made irrevocable and the interests of its beneficiary or beneficiaries therein may be made nontransferable by assignment or otherwise.

History.- s. 2, ch . 29948, 1955.

930

F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

CHAPTER 443

UNEMPLOYMENT COMPENSATION

443.01 443.02 443.03 443.04 443.05 443.06 443.07 443.08 443.09 443.10

443.11 443.12

443.13 443.14

443.15 443.16

443.17 443.18 443.19

443.20 443.21 443.22

Short title. Declaration of public policy. Definitions. Payment of benefits. Benefit eligibility conditions. Disqualification for benefits. Procedure concerning claims. Contributions. Employing units affected. Unemployment Compensation Trust Fund;

establishment and control. Administrative organization. Division and commission; powers and du­

ties; rules and regulations; advisory coun­cil; records and reports; cooperation, etc.

State Employment Service. Employment Security Administration

Trust Fund; appropriation; reimburse­ment.

Collection of contributions. Waiver of rights; fees; privileged communi-

cations. Benefits not alienable. Reciprocal arrangements. Unemployment Compensation Trust Fund

to be sole source of benefits; nonliability of state.

Rule of liberal construction. Saving clause. Penalties.

443.01 Short title.-This chapter shall be known and may be cited as the "Unemployment Compensation Law."

History.-s. 2, ch. 18402, 1937; CGL 1940 Supp. 4151(488).

443.02 Declaration of public policy.-As a guide to the interpretation and application of this chapter, the public policy of this state is declared to be as follows: Economic insecurity due to unemploy­ment is a serious menace to the health, morals, and welfare of the people of this state. Unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the un­employed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. This objective can be furthered by operating free public employ­ment offices in affiliation with a nationwide system of employment services, by devising appropriate methods for reducing the volume of unemployment and by the systematic accumulation of funds during the periods of employment from which benefits may be paid for periods of unemployment thus maintain­ing purchasing power and limiting the serious social consequences of unemployment. The Legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citi­zens of this state require the enactment of this meas­ure, under the police power of the state, for the es­tablishment and maintenance of free public employ-

ment offices and for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, subject, however, to the specific provisions of this chapter.

History.- s. 1, ch. 18402, 1937; CGL 1940 Supp. ·4151(489); s. 1, ch. 20685, 1941.

443.03 Definitions.-As used in this chapter, unless the context clearly requires otherwise:

(1) "Base period" means the first 4 of the last 5 completed calendar quarters immediately preceding the first day of an individual's benefit year.

(2) "Benefits" means the money payable to an individual, as provided in this chapter, with respect to his unemployment.

(3) "Benefit year," with respect to any individu­al, means the 1-year period beginning with the first day of the first week with respect to which the indi­vidual first files a valid claim for benefits, and there­after, the 1-year period beginning with the first day of the first week with respect to which the individual next files a valid claim for benefits, after the termi­nation of his last preceding benefit year. Any claim for benefits made in accordance with s. 443.07(2) shall be deemed to be a "valid claim" for the pur­poses of this subsection if the individual has been paid wages for insured work in accordance with the provision of s. 443.05(1)(e) and is unemployed as de­fined in paragraph (12)(a) of this section at the time of the filing of such claim. Provided, however, that the division may in its discretion provide by regula­tion for the establishment of a uniform benefit year for all workers in one or more groups or classes of service or within a particular industry when and if it has been determined by the division, after notice to the industry and to the workers in such industry and an opportunity to be heard in the matter, that such groups or classes of workers in a particular industry periodically experience unemployment re­sulting from layoffs or shutdowns for limited periods of time.

(4) "Calendar quarter" means the period of 3 consecutive calendar months ending on March 31, June 30, September 30, and December 31, excluding, however, any calendar quarter or portion thereof which occurs prior to January 1, 1938, or the equiva­lent thereof as the division may by regulation pre­scribe.

(5) "Employment," subject to the other provi­sions of this chapter, means any service performed by an employee for the person employing him.

(a) The term "employment" shall include any service performed prior to January 1, 1978, which was employment as defined in this subsection prior to such date and, subject to the other provisions of this subsection, service performed after December 31, 1977, including service in interstate commerce, by:

1. Any officer of a corporation. 2. Any individual who, under the usual common

law rules applicable in determining the employer-

931

Ch. 443 UNEMPLOYMENT COMPENSATION F.S.1979

employee relationship, has the status of an em­ployee.

3. Any individual other than an individual who is an employee under subparagraph 1. or subpara­graph 2., who performs services for remuneration for any person:

a . As an agent-driver or commission-driver en­gaged in distributing meat products, vegetable prod­ucts, fruit products, bakery products, beverages (oth­er than milk), or laundry or drycleaning services for his principal.

b. As a traveling or city salesman, other than as an agent-driver or commission-driver, engaged on a full-time basis in the solicitation on behalf of, and the transmission to, his principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar es­tablishments for merchandise for resale or supplies for use in their business operations.

For purposes of subparagraph (a)3., the term "em­ployment" shall include services described in a . and b. above and performed after December 31, 1971, only if:

(I) The contract of service contemplates that sub­stantially all of the services are to be performed per­sonally by such individual;

(II) The individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and

(III) The services are not i:ri. the nature of a single transaction that is not part of a continuing relation­ship with the person for whom the services are per­formed.

(b) The term "employment" shall include: 1. Service performed after December 31, 1971, by

an individual in the employ of this state or any of its instrumentalities (or in the employ of this state and one or more other states or their instrumentalities) for a hospital or institution of higher education lo­cated in this state, provided such service is excluded from "employment" as defined in the Federal Unem­ployment Tax Act solely by reason of s. 3306(c)(7) of that act and is not excluded from "employment" un­der paragraph (d) of this subsection.

a . "Institution of higher education," for the pur­poses of this section, means an educational institu­tion which:

(I) Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate;

(II) Is legally authorized in this state to provide a program of education beyond high school;

(Ill) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable for full credit toward such a degree, a program of postgraduate or postdoc­toral studies, or a program of training to prepare students for gainful employment in a recognized oc­cupation; and

(IV) Is a public or other nonprofit institution.

Notwithstanding any of the foregoing provisions of this subsection, all colleges and universities in this state and recognized as such by this state are institu­tions of higher education for purposes of this section.

b. "Hospital" means an institution which has been licensed, certified, or approved by the Depart­ment of Health and Rehabilitative Services as a hos­pital.

2. Service performed after December 31, 1971, and prior to January 1, 1978, in the employ of this state or any of its wholly owned instrumentalities, provided such service is excluded from "employ­ment" as defined in s. 3306(c)(7) of the Federal Un­employment Tax Act and is not excluded from "em­ployment" under paragraph (d) of this subsection.

3. Service performed after December 31, 1973, and prior to January 1, 1978, in the employ of any political subdivision of this state or any instrumen­tality thereof, provided such service is excluded from "employment" as defined in s. 3306(c)(7) of the Fed­eral Unemployment Tax Act and is not excluded from "employment" under paragraph (d) of this sub­section.

4. Service performed after December 31, 1977, in the employ of this state or any of its instrumentali­ties or any political subdivision thereof or any of its instrumentalities, any instrumentality of more than one of the foregoing, or any instrumentality of any of the foregoing and one or more other states or political subdivisions, provided such service is ex­cluded from "employment" as defined ins. 3306(c)(7) of the Federal Unemployment Tax Act and is not excluded from "employment" under paragraph (d) of this subsection.

(c) The term "employment" shall include service performed after December 31, 1971, by an individual in the employ of a religious, charitable, educational or other organization, but only if the following condi­tions are met:

1. The service is excluded from "employment" as defined in the Federal Unemployment Tax Act sole­ly by reason of s. 3306(c)(8) of that act; and

2. The organization had four or more individuals in employment for some portion of a day in each of 20 different weeks, whether or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were em­ployed at the same moment of time.

(d) For the purposes of paragraphs (b) and (c), the term "employment" does not apply to service per­formed:

1. In the employ of: a. A church or convention or association of

churches. b. An organization which is operated primarily

for religious purposes and which is operated, super­vised, controlled, or principally supported by a church or convention or association of churches.

2. By a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order.

3. Prior to January 1, 1978, in the employ of a nonprofit educational institution which is not an in-

932

F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

stitution ofhigher education and which would other­wise be employment as defined in paragraph (c) of this subsection.

4. After December 1, 1971, in the employ of a governmental entity referred to in subparagraph (b)2., and after December 31, 1973, in the employ of a governmental entity referred to in subparagraph (b)3., and after December 31, 1977, in the employ of a governmental entity referred to in subparagraph (b)4., if such service is performed by an individual in the exercise of duties:

a. As an elected official. b. As a member of a legislative body, or a mem­

ber of the judiciary, of a state or political subdivision. c. As an employee serving on a temporary basis

in case of fire, storm, snow, earthquake, flood, or similar emergency.

d. In a position which, under or pursuant to the laws of this state, is designated as a major non­tenured policymaking or advisory position or a poli­cymaking or advisory position, the performance of the duties of which ordinarily does not require more than 8 hours per week.

5. In a facility conducted for the purpose of carry­ing out a program of rehabilitation for individuals whose earning capacity is impaired by age or physi­cal or mental deficiency or injury or providing remu­nerative work for individuals who, because of their impaired physical or mental capacity, cannot be readily absorbed in the competitive labor market, by an individual receiving such rehabilitation or remu­nerative work.

6. As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof, by an individu­al receiving such work relief or work training, ex­cept that this subparagraph does not apply to unem­ployment work-relief or work-training programs for which unemployment compensation coverage is re­quired under a federal law, rule, or regulation.

7. Prior to January 1, 1978, for a hospital in a state prison or other state correctional institution by an inmate of the prison or correctional institution, and after December 31, 1977, by an inmate of a cus­todial or penal institution.

(e) The term "employment" shall include an in­dividual's entire service, performed within or both within and without this state if:

1. The service is localized in this state; or 2. The service is not localized in any state, but

some of the service is performed in this state and a . The base of operations, or, if there is no base

of operations, then the place from which such service is directed or controlled, is in this state, or

b. The base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state.

(f) Services not covered under subparagraph (e)2. of this subsection and performed entirely without this state, with respect to no part of which contribu­tions are required and paid under an unemployment compensation law of any other state or of the Feder­al Government, shall be deemed to be employment subject to this chapter if the individual performing

such services is a resident of this state and the divi­sion approves the election of the employing unit for whom such services are performed that the entire service of such individual shall be deemed to be em­ployment subject to this chapter.

(g) Service shall be deemed to be localized within a state if:

1. The service is performed entirely within such state; or

2. The service is performed both within and with­out such state, but the service performed without such state is incidental to the individual's service within the state; for example, it is temporary or tran­sitory in nature or consists of isolated transactions.

(h) The term "employment" shall include ser­vices covered by an arrangement pursuant to s. 443.18 between the division and the agency charged with the administration of any other state or Federal Unemployment Compensation Law, pursuant to which all services performed by an individual for an employing unit are deemed to be performed entirely within this state, if the division has approved an election of the employing unit for which such ser­vices are performed, pursuant to which the entire service of such individual during the period covered by such election is deemed to be insured work.

(i)l. The term "employment" shall include the service of an individual who is a citizen ofthe United States, performed outside the United States (except in Canada and in the case of the Virgin Islands, after December 31, 1971, and before January 1 of the year following the year in which the United States Secre­tary of Labor approves the Virgin Islands' unem­ployment compensation law for the first time under s. 3304(a) of the Internal Revenue Code of 1954) in the employ of an American employer (other than service which is deemed "employment" under the provisions of paragraphs (b) or (c) of this subsection or the parallel provisions of another state's law), if:

a. The employer's principal place of business in the United States is located in this state.

b. The employer has no place of business in the United States, but:

(I) The employer is an individual who is a resi­dent of this state.

(II) The employer is a corporation which is or­ganized under the laws of this state.

(Ill) The employer is a partnership or a trust and the number of the partners or trustees who are resi­dents of this state is greater than the number who are residents of any one other state.

c. None ofthe criteria of subparagraphs 1. and 2. of this paragraph is met, but the employer has elect­ed coverage in this state, or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under the law of this state.

2. An "American employer," for purposes of this paragraph, means:

a. An individual who is a resident of the United States.

b. A partnership, if two-thirds or more of the partners are residents of the United States.

c. A trust, if all of the trustees are residents of the United States.

d. A corporation organized under the laws of the

933

Ch. 443 UNEMPLOYMENT COMPENSATION F.S.1979

United States or of any state. 3. The term "United States" includes the states,

the District of Columbia, the Commonwealth of Puerto Rico, and, effective 1 day after the United States Secretary of Labor approves its unemploy­ment compensation law for the first time under s. 3304(a) of the Internal Revenue Code of 1954, the term shall include the Virgin Islands.

(j)l. The term "employment" shall also include all service performed by an officer or member of a crew of an American vessel or American aircraft on or in connection with such vessel or aircraft, provid­ed that the operating office, from which the opera­tions of such vessel or aircraft operating within or within and without the United States is ordinarily and regularly supervised, managed, directed, and controlled, is within this state.

2. The term "American vessel" means any vessel documented or numbered under the laws of the United States; and includes any vessel which is nei­ther documented or numbered under the laws of the United States nor documented under the laws of any foreign country, if its crew is employed solely by one or more citizens or residents of the United States or corporations organized under the laws of the United States or of any state.

3. The term "American aircraft" means an air­craft registered under the laws of the United States.

(k) Notwithstanding any other provisions of this subsection, service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contribu­tions required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemploy­ment Tax Act is required to be covered under this act.

(l) The term "employment" shall not include: 1. Service performed by an individual in agricul­

tural labor, except as provided in paragraph (n) of this subsection; however, the provisions of para­graph (n) of this subsection shall not reduce the cov­erage provided under sub-sub-subparagraph d.(III) of this subparagraph. For purposes of this subpara­graph, the term "agricultural labor" means any ser­vice performed prior to January 1, 1972, which was agricultural labor as defined in this subparagraph prior to such date, and remunerated service per­formed after December 31, 1971:

a . On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horti­cultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife.

b. In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or main­tenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.

c. In connection with the production or harvest­ing of any commodity defined as an agricultural commodity ins. 15(g) of the Agricultural Marketing

Act, as amended (46 Stat. 1550, s. 3; 12 U.S.C. s. 114j) or in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes.

d.(I) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transporta­tion to market, in its unmanufactured state, any agricultural or horticultural commodity; but only if such operator produced more than one-half of the commodity with respect to which such service is per­formed.

(II) In the employ of a group of operators of farms (or a cooperative organization of which such opera­tors are members) in the performance of service de­scribed in sub-sub-subparagraph (I), but only if such operators produced more than one-half of the com­modity with respect to which such service is per­formed.

(Ill) The provisions of sub-sub-subparagraphs (I) and (II) shall not be deemed to be applicable with respect to service performed in connection with com­mercial canning or commercial freezing or in con­nection with any agricultural or horticultural com­modity after its delivery to a terminal market for distribution for consumption or in connection with grading, packing, packaging, or processing fresh cit­rus fruits.

e. On a farm operated for profit if such service is not in the course of the employer's trade or business.

f. As used in this paragraph, the term "farm" includes stock, dairy, poultry, fruit, fur-bearing ani­mal, and truck farms, plantations, ranches, nurser­ies, ranges, greenhouses, or other similar structures used primarily for the raising of agricultural or hor­ticultural commodities, and orchards.

2. Domestic service in a private home, local col­lege club, or local chapter of a college fraternity or sorority, except as provided in paragraph (o) of this subsection.

3. Casual labor not in the course of the em­ployer's trade or business. For the purposes of this subsection "casual labor" shall mean labor which is occasional, incidental, or irregular, not exceeding 200 man-hours in total duration. Duration shall mean the period of time from the commencement to the completion of the particular job or project; how­ever, services performed by an employee for his em­ployer during a period of 1 calendar month or any 2 consecutive calendar months shall be deemed to be casual labor only if such service is performed on not more than 10 calendar days, whether or not such days are consecutive. If any of the services of an individual on a particular labor project are not casu­al labor as defined, then none of the services of such individual on such job or project shall be deemed casual labor. "Not in the course of the employer's trade or business" shall mean that which does not promote or advance the trade or business of the em­ployer. In order for services to be exempt under this subsection, such services shall constitute casual la­bor, as defined, and not in the course of the employ­er's trade or business, as defined.

934

F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

4. Service performed on or in connection with a vessel or aircraft not an American vessel or Ameri­can aircraft, if the employee is employed on and in connection with such vessel or aircraft when outside the United States.

5. Service performed by an individual in (or as an officer or member of the crew of a vessel while it is engaged in) the catching, taking, harvesting, culti­vating, or farming of any kind of fish, shellfish, crus­tacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life (including service per­formed by any such individual as an ordinary inci­dent to any such activity), except:

a. Service performed in connection with the catching or taking of salmon or halibut, for commer­cial purposes.

b. Service performed on, or in connection with, a vessel of more than 10 net tons (determined in the manner provided for determining the register ton­nage of merchant vessels under the laws of the Unit­ed States).

6. Service performed by an individual in the em­ploy of his son, daughter, or spouse, and service per­formed by a child under the age of 18 in the employ of his father or mother.

7. Service performed in the employ of the United States Government or of an instrumentality of the United States which is:

a . Wholly or partially owned by the United States.

b. Exempt from the tax imposed by s. 3301 of the Internal Revenue Code by virtue of any provision of federal law which specifically refers to such section (or the corresponding section of prior law) in grant­ing such exemption; except that to the extent that the Congress shall permit states to require any in­strumentalities of the United States to make pay­ments into an unemployment fund under a state unemployment compensation law, all of the provi­sions of this law shall be applicable to such instru­mentalities, and to services performed for such in­strumentalities, in the same manner, to the same extent, and on the same terms as to all other employ­ers, employing units, individuals, and services. If this state shall not be certified for any year by the Secretary of Labor under s. 3304 of the Federal In­ternal Revenue Code, the payments required of such instrumentalities with respect to such year shall be refunded by the division ftom the fund in the same manner and within the same period as is provided in s. 443.15(6) with respect to contributions erroneously collected.

8. Service performed in the employ of a state, or any political subdivision thereof, or any instrumen­tality of any one or more of the foregoing which is wholly owned by one or more states or political sub­divisions, except as provided in paragraph (b) ofthis subsection, and any service performed in the employ of any instrumentality of one or more state or politi­cal subdivisions, to the extent that the instrumental­ity is, with respect to such service, immune under the Constitution of the United States from the tax imposed by s. 3301 of the Internal Revenue Code.

9. Service performed in the employ of a corpora­tion, community chest, fund, or foundation, organ­ized and operated exclusively for religious, charita-

ble, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruel­ty to children or animals, no part of the net earnings of which inures to the benefit of any private share­holder or individual, no substantial part of the ac­tivities of which is carrying on propaganda, or other­wise attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any politi­cal campaign on behalf of any candidate for public office, except as provided in paragraph (c) of this subsection.

10. Service with respect to which unemployment compensation is payable under an unemployment compensation system established by an Act of Con­gress.

1l.a. Service performed in any calendar quarter in the employ of any organization exempt from in­come tax under s. 501(a) of the Internal Revenue Code (other than an organization described in s. 401(a)), or under s. 521, if the remuneration for such service is less than $50.

b. Service performed in the employ of a school, college, or university, if such service is performed by a student who is enrolled and is regularly attending classes at such school, college, or university.

12. Services performed in the employ of a foreign government (including service as a consular or other officer or employee of a nondiplomatic representa­tive).

13. Service performed in the employ of an instru­mentality wholly owned by a foreign government:

a . If the service is of a character similar to that performed in foreign countries by employees of the United States Government or of an instrumentality thereof; and

b. The Secretary of State shall certify to the Sec­retary of the Treasury that the foreign government, with respect to whose instrumentality exemption is claimed, grants an equivalent exemption with re­spect to similar service performed in the foreign country by employees of the United States Govern­ment and of instrumentalities thereof.

14. Service performed as a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and is regularly at­tending classes in a nurses' training school charter­ed or approved pursuant to a state law; service per­formed as an intern in the employ of a hospital by an individual who has completed a 4-year course in a medical school chartered or approved pursuant to state law; and service performed by a patient of a hospital for such hospital.

15. Service performed by an individual for a per­son as an insurance agent or as an insurance solici­tor, if all such service performed by such individual for such person is performed for remuneration solely by way of commission.

16. Service performed by an individual for a per­son as a real estate salesman or agent, if all such service performed by such individual for such person is performed for remuneration solely by way of com­mission.

17. Service performed by an individual under the age of 18 in the delivery or distribution of newspa­pers or shopping news, not including delivery or dis-

935

Ch. 443 UNEMPLOYMENT COMPENSATION F.S.1979

tribution to any point for subsequent delivery or dis­tribution.

18. Service covered by an arrangement between the division and the agency charged with the admin­istration of any other state or federal unemployment compensation law pursuant to which all services performed by an individual for an employing unit during the period covered by such employing unit's duly approved election are deemed to be performed entirely within such agency's state or under such federal law.

19. Service performed by an individual under the age of 22 who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its education activities are car­ried on as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program, and such institu­tion has so certified to the employer, except that this subparagraph shall not apply to service performed in a program established for or on behalf of an em­ployer or group of employers.

20. Service performed by an individual for a per­son as a barber, if all such service performed by such individual for such person is performed for remuner­ation solely by way of commission.

(m) If the services performed during one-half or more of any pay period by an employee for the per­son employing him constitute employment, all of the services of such employee for such period shall be deemed to be employment; but if the services per­formed during more than one-half of any such pay period by an employee for the person employing him do not constitute employment, then none of the ser­vices of such employee for such period shall be deemed to be employment. As used in this subsection the term "pay period" means a period (of not more than 31 consecutive days) for which a payment of remuneration is ordinarily made to the employee by the person employing him. This subsection shall not be applicable with respect to services performed in a pay period by an employee for the person employing him, where any of such service is excepted by sub­paragraph 9. of paragraph (l) .

(n) The term "employment" shall include service performed after December 31, 1977, by an individual in agricultural labor as defined in subparagraph (1)1. of this subsection, when:

1. Such service is performed for a person who: a . During any calendar quarter in either the cur­

rent or the preceding calendar year paid remunera­tion in cash of $20,000 or more to individuals em­ployed in agricultural labor (not taking into account service in agricultural labor performed before Janu­ary 1, 1980, by an alien referred to in subparagraph 2. of this paragraph).

b. For some portion of a day in each of 20 differ­ent calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor (not taking into account service in agricultural labor per­formed before January 1, 1980, by an alien referred to in subparagraph 2. of this paragraph) 10 or more

individuals, regardless of whether they were em­ployed at the same moment of time.

2. Such service is performed in agricultural labor if performed after December 31, 1979, by an individ­ual who is an alien admitted to the United States to perform service in agricultural labor pursuant to ss. 214(c) and 101(a)(15)(H) of the Immigration and Na­tionality Act. Service performed in agricultural la­bor by an alien individual as described in this sub­paragraph shall not be considered employment if such service is performed prior to January 1, 1980.

3. Such service is performed by any individual who is a member of a crew furnished by a crew lead­er to perform service in agricultural labor for any other person.

a. For purposes of this subparagraph, a crew member shall be treated as an employee of the crew leader:

(I) If the crew leader holds a valid certificate of registration under the Farm Labor Contractor Reg­istration Act of1963 or substantially all of the mem­bers of the crew operate or maintain tractors, mech­anized harvesting or crop-dusting equipment, or any other mechanized equipment which is provided by the crew leader; and

(II) If such individual is not an employee of such other person within the meaning of paragraph (5)(a).

b. For the purposes of this subparagraph, in the case of an individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an em­ployee of the crew leader under sub-subparagraph a. :

(I) Such other person and not the crew leader shall be treated as the employer of such individual; and

(II) Such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader (either on his own behalf or on the behalf of such other person) for the service in agricultural labor performed for such other person.

c. For the purposes of this subparagraph, the term "crew leader" means an individual who:

(I) Furnishes individuals to perform service in agricultural labor for any other person;

(II) Pays (either on his own behalf or on behalf of such other person) the individuals so furnished by him for the service in agricultural labor performed by them; and

(III) Has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person.

(o) The term "employment" shall include domes­tic service after December 31, 1977, in a private home, local college club, or local chapter of a college fraternity or sorority performed for a person who paid cash remuneration of $1,000 or more after De­cember 31, 1977, in any calendar quarter in the cur­rent calendar year or the preceding calendar year to individuals employed in such domestic service.

(6) "Employing unit" means: Any individual or type of organization, including any partnership, as­sociation, trust, estate, joint-stock company, insur­ance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trus-

936

F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

tee or successor of any of the foregoing, or the legal representative of a deceased person, which has or subsequent to January 1, 1936, had in its employ one or more individuals performing services for it within this state.

(a) Each individual employed to perform or to assist in performing the work of any agent or em­ployee of an employing unit shall be deemed to be employed by such employing unit for all the pur­poses of this chapter, whether such individual was hired or paid directly by such employing unit or by such agent or employee, provided the employing unit had actual or constructive knowledge of the work.

(b) All individuals performing services within this state for any employing unit which maintains two or more separate establishments within this state shall be deemed to be performing services for a single employing unit for all the purposes of this chapter.

(c) Any person who is an officer of a corporation and who performs services for such corporation within this state, whether or not such services are continuous, shall be deemed an employee of the cor­poration during all of each week of his tenure of office, regardless of whether or not he is compensat­ed for such services. Services shall be presumed to have been rendered the corporation in cases where such officer is compensated by other than dividends upon shares of stock of such corporation owned by him.

(7) "Employer" means: (a) Any employing unit which, after December

31, 1971: 1. In any calendar quarter in either the current

or preceding calendar year paid for service in em­ployment wages of $1500 or more; or

2. For any portion of a day in each of20 different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, had in employment at least one indi­vidual (irrespective of whether the same individual was in employment in each such day).

(b) Any employing unit for which service in em­ployment, as defined in paragraph (5)(b), is per­formed, except as provided in paragraph (e) of this subsection.

(c) Any employing unit for which service in em­ployment, as defined in paragraph (5)(c), is per­formed after December 31, 1971, except as provided in paragraph (e) of this subsection.

(d)l. Any employing unit for which agricultural labor, as defined in paragraph (5)(n), is performed after December 31, 1977.

2. Any employing unit for which domestic ser­vice in employment, as defined in paragraph (5)(o), is performed after December 31, 1977.

(e)l. In determining whether or not an employ­ing unit for which service other than domestic ser­vice is also performed is an employer under para­graph (a), (b), (c), or (d)l. of this subsection, the wages earned or the employment of an employee perform­ing domestic service after December 31, 1977, shall not be taken into account.

2. In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under paragraph

(a), (b), (c), or (d)2. of this subsection, the wages earned or the employment of an employee perform­ing service in agricultural labor after December 31, 1977, shall not be taken into account. If an employ­ing unit is determined to be an employer of agricul­turallabor, the employing unit shall be determined an employer for the purposes of paragraph (a) of this subsection.

(f) Any individual or employing unit which ac­quired the organization, trade, or business, or sub­stantially all the assets thereof, of another which at the time of such acquisition was an employer subject to this chapter or which acquired a part ofthe organ­ization, trade, or business of another which at the time of such acquisition was an employer subject to this chapter, provided such other would have been an employer under paragraph (a) of this subsection if such part had constituted its entire organization, trade, or business.

(g) Any individual or employing unit which ac­quired the organization, trade, or business, or sub­stantially all the assets thereof, of another employ­ing unit, ifthe employment record of the predecessor prior to such acquisition together with the employ­ment record of such individual or employing unit subsequent to such acquisition, both within the same calendar year, would be sufficient to render an em­ploying unit subject to this chapter as an employer under paragraph (a) of this subsection.

(h) Any employing unit not an employer by rea­son of any other paragraph of this subsection:

1. For which, within either the current or pre­ceding calendar year, service is or was performed with respect to which such employing unit is liable for any federal tax against which credit may be tak­en for contributions required to be paid into a state unemployment fund .

2. Which, as a condition for approval of this chapter for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required pur­suant to such act, to be an "employer" under this chapter.

(i) Any employing unit which has become an em­ployer under paragraphs (a), (b), (c), (d), (e), (f), (g), or (h) of this subsection, and has not ceased to be an employer subject to this chapter, as provided in s. 443.09.

(j) For the effective period of its election, any oth­er employing unit which has elected to become sub­ject to this chapter.

(k) Any employing unit which fails to keep the records of employment required by this chapter and by the regulations of the division shall be presumed to be an employer liable for the payment of contribu­tions pursuant to the provisions of this chapter, re­gardless of the number of individuals employed by such employing unit. However, the division shall make written demand that such employing unit keep and maintain required payroll records, and such demand shall have been made not less than 6 months before assessing contributions against any employing unit determined to have become an "em-

937

Ch. 443 UNEMPLOYMENT COMPENSATION F.S.1979

ployer" solely by reason of this paragraph.

For purposes of this subsection, if any week includes both December 31 and January 1, the days of that week up to January 1 shall be deemed 1 calendar week, and the days beginning January 1, another such week.

(8) "Fund" means the Unemployment Compen­sation Trust Fund created by this chapter, to which all contributions required and from which all bene­fits provided under this chapter shall be paid.

(9) "Contributions" means the money payments to the Unemployment Compensation Trust Fund, required by this chapter.

(10) "Employment office" means a free public employment office or branch thereof operated by this or any other state as a part of a state-controlled system of public employment offices or by a federal agency charged with the administration of an unem­ployment compensation program or free public em­ployment offices.

(11) "State" includes the states of the United States, the District of Columbia, Canada, the Com­monwealth of Puerto Rico, and, effective 1 day after the United States Secretary of Labor approves the unemployment compensation law of the Virgin Is­lands for the first time under s. 3304(a) of the Inter­nal Revenue Code of 1954, the Virgin Islands.

(12) "Unemployment": (a) An individual shall be deemed "totally unem­

ployed" in any week during which he performs no services and with respect to which no wages are pay­able to him, or "partially unemployed" in any week of less than full-time work if the wages payable to him with respect to such week are less than his weekly benefit amount. The division shall prescribe regulations applicable to unemployed individuals making such distinctions in the procedures as to to­tal unemployment, part-time unemployment, par­tial unemployment of individuals attached to their regular jobs, and other forms of short-time work, as the division deems necessary.

(b) An individual's week of unemployment shall be deemed to commence only after his registration at an employment office, except as the division may by regulations otherwise prescribe.

(13) "Wages": (a) "Wages" means all remuneration paid for

services from whatever source, including commis­sions and bonuses and the cash value of all remuner­ation paid in any medium other than cash. The rea­sonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules prescribed by the division.

(b) The term "wages" shall not include: 1. That part of remuneration which, after remu­

neration equal to $4,200 prior to January 1, 1978, and $6,000 after December 31, 1977, has been paid in a calendar year to an individual by an employer or his predecessor with respect to employment during any calendar year, is paid to such individual by such employer during such calendar year, unless that part of the remuneration is subject to a tax, under a federal law imposing the tax, against which credit may be taken for contributions required to be paid into a state unemployment fund . For the purposes of

this subsection, the term "employment" shall in­clude services constituting employment under any employment security law of another state or of the Federal Government.

2. The amount of any payment, with respect to services performed, to, or on behalf of, an individual in its employ under a plan or system established by an employing unit which makes provision for indi­viduals in its employ generally or for a class or class­es of such individuals (including any amount paid by an employing unit for insurance or annuities, or into a fund, to provide for any such payment), on account of:

a . Retirement. b. Sickness or accident disability. c. Medical and hospitalization expenses in con­

nection with sickness or accident disability. d. Death, provided the individual in its employ: (I) Has not the option to receive, instead of provi­

sion for such death benefit, any part of such payment or, if such death benefit is insured, any part of the premiums (or contributions to premiums) paid by his employing unit; and

(II) Has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit, to assign such benefit or to re­ceive cash consideration in lieu of such benefit either upon his withdrawal from the plan or system provid­ing for such benefit or upon termination of such plan or system or policy of insurance or of his services with such employing unit.

3. The payment by an employing unit (without deduction from the remuneration of the individual in its employ) of the tax imposed upon an individual in its employ under s. 3101 of the Federal Internal Revenue Code with respect to services performed after June 30, 1941.

(14) "Week" means such period of 7 consecutive days as the division may by regulation prescribe. The division may by regulation prescribe that a week shall be deemed to be "in," "within," or "dur­ing," that benefit year which includes the greater part of such week.

(15) "Insured work" means employment for em­ployers.

(16)(a) "Commission" means the Unemployment Appeals Commission of the Department of Labor and Employment Security.

(b) "Division" means the Division of Employ­ment Security of the Department of Labor and Em­ployment Security.

(17) "Educational institution" means an institu­tion (except an institution of higher education as defined in paragraph (5)(b)):

(a) In which participants, trainees, or students are offered an organized course of study or training designed to transfer to them knowledge, skills, infor­mation, doctrines, attitudes, or abilities from, by, or under the guidance of, an instructor or teacher;

(b) Which is approved, licensed, or issued a per­mit to operate as a school by the Department of Edu­cation or other government agency that is author­ized within the state to approve, license, or issue a permit for the operation of a school; and

(c) Which offers courses of study or training which are academic, technical, trade, or preparation

938

F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

for gainful employment in a recognized occupation. (18) "Reimbursable employer" means an em­

ployer who is liable for payments in lieu of contribu­tions as required by this chapter.

History.- s. 3, ch. 18402, 1937; s. 1, ch. 19637, 1939; CGL 1940 Supp. 4151(490); s. 3, ch. 20685, 1941; s. 1, ch. 21983, 1943; s. 7, ch. 22858, 1945; s. 1, ch. 24085, 1947; s. 10, ch . 26484, 1951; s. 1, ch. 26878, 1951; ss. 1, 2, ch. 26879, 1951; ss. 1, 2, ch. 28242, 1953; ss. 1, 2, cbs. 29771, 29772, 1955; ss. 1-3, ch. 57-228; ss. 1, 2, ch. 61-228; s. 2, ch. 61-119; s. 1, ch. 61-132; s. 1, ch. 63-56; ss. 1, 2, ch. 63-155; s. 1, ch. 65-196; ss. 17, 35, ch. 69-106; ss. 1-3, ch. 71-225; s. 1, ch. 71-226; s. 165, ch. 71-377; s. 2, ch. 73-283; s. 117, ch. 73-333; s . 1, ch. 74-198; s. 1, ch. 75-39; s . 19, ch. 77-121; s. 1, ch. 77-262; s. 1, ch . 77-393; s. 1, ch. 77-399; s. 3, ch . 78-386; s. 21, ch. 79-7; s. 181, ch. 79-400.

443.04 Payment of benefits.-(! ) MANNER OF P A YMENT.-On and after

January 1, 1939, benefits shall become payable from the fund. All benefits shall be paid through claims offices in accordance with such regulations as the division may prescribe. However, each claimant shall report in person to a claims office to certify for benefits which are paid and shall continue to report at least biweekly to receive unemployment benefits and to attest to the fact that he is able and available for work, has not refused suitable work, is seeking work, and, if he has worked, to report earnings from such work, except in a case in which he has returned to work, in which case the last benefits check can be mailed on request of the claimant. The mailing of unemployment benefits to a claimant is specifically prohibited, except as provided in this subsection and in cases of interstate claims and checks claimants do not pick up on a designated day from the claims office. In accordance with rules promulgated under chapter 120, the division shall prescribe the criteria and procedures for mailing checks to claimants who fail to pick them up on the designated day from the claims office. Nothing in this subsection shall be con­strued to prohibit the division from instituting ex­perimental and limited projects whereby claims checks are mailed; however, the division shall not implement such projects on a statewide basis until a report has been made to the Legislature, and the Legislature has approved such implementation.

(2) WEEKLY BENEFIT AMOUNT.-(a) An individual's "weekly benefit amount"

shall be an amount equal to one-half of his average weekly wage, but not less than $10 or more than $95. Such weekly benefit amount, if not a multiple of$1, shall be rounded off to the next higher multiple of $1. The provisions of this subsection apply only to benefit years beginning on and after July 1, 1979; however, no individual currently eligible for benefits shall be redetermined ineligible pursuant to this sec­tion.

(b) The average weekly wages of such individual shall be computed by dividing his total base period wages by the number of weeks in such base period in which he was paid wages for insured work. However, any individual shall be deemed to have been paid wages in the total number of weeks in his base period indicated in the reports submitted to the division by his base period employers but not more than 13 weeks in any calendar quarter.

(c) The provisions of this subsection as herein amended apply only to benefit years beginning on and after July 1, 1975; provided, that no individual currently eligible for benefits shall be redetermined ineligible pursuant to this section.

(3) WEEKLY BENEFIT FOR UNEMPLOY­MENT.-

(a) Total.-Each eligible individual who is total­ly unemployed in any week shall be paid with re­spect to such week a benefit in an amount equal to his weekly benefit amount.

(b) Partial.-Each eligible individual who is par­tially unemployed in any week shall be paid with respect to such week a benefit in an amount equal to his weekly benefit less that part of the wages (if any) payable to him with respect to such week which is in excess of $5. Such benefits, if not a multiple of $1, shall be computed to the next higher multiple of $1.

(4) DURATION OF BENEFITS.-(a)l. Any otherwise eligible individual shall be

entitled during any benefit year to a total amount of benefits equal to the product of his weekly benefit amount and one-half the number of weeks in his base period in which he was paid wages for insured work; provided, that such total amount ofbenefits, if not a multiple of$1 shall be rounded off to the next higher multiple of $1.

2. For the purposes of this subsection, wages shall be counted as "wages for insured work" for benefit purposes with respect to any benefit year only if such benefit year begins subsequent to the date on which the employing unit by whom such wages were paid has satisfied the conditions of this chapter with respect to becoming an employer.

3. The provisions of this subsection as herein amended apply only to the benefit years beginning after June 30, 1960.

(b) If the remuneration of an individual is not based upon a fixed period or duration of time or if the individual's wages are paid at irregular intervals or in such manner as not to extend regularly over the period of employment, the wages for any week or for any calendar quarter for the purpose of computing an individual's right to employment benefits only shall be determined in such manner as may by regu­lations be prescribed. Such regulations, so far as pos­sible, secure results reasonably similar to those which would prevail if the individual were paid his wages at regular intervals.

(5) EXTENDED BENEFITS.-(a) Definitions.-As used in this subsection, un­

less the context clearly requires otherwise: 1. "Extended benefit period" means a period

which: a . Begins with the third week after whichever of

the following weeks occurs first: (I) A week for which there is a national "on"

indicator; or (II) A week for which there is a state "on" indica­

tor; and b. Ends with either of the following weeks,

whichever occurs later: (I) The third week after the first week for which

there is both a national "off' indicator and a state "off' indicator; or

(II) The 13th consecutive week of such period.

However, no extended benefit period may begin by reason of a state "on" indicator before the 14th week following the end of a prior extended benefit period which was in effect with respect to this state, and no

939

Ch. 443 UNEMPLOYMENT COMPENSATION F.S.1979

extended benefit period may become effective in this state prior to January 1, 1972.

2. With respect to weeks beginning after Decem­ber 31, 1976, there is a "national 'on' indicator" for a week if, for the period consisting of such week and the 12 weeks immediately preceding it, the rate of insured unemployment (seasonally adjusted) for all states equaled or exceeded 4.5 percent. The rate of insured unemployment, for the purposes of this sub­paragraph, shall be determined by the United States Secretary of Labor by reference to the average monthly covered employment for the first 4 of the most recent 6 calendar quarters ending before the close of such period.

3. With respect to weeks beginning after Decem­ber 31, 1976, there is a "national 'off' indicator" for a week if, for the period consisting of such week and the 12 weeks immediately preceding it, the rate of insured unemployment (seasonally adjusted) for all states was less than 4.5 percent. The rate of insured unemployment, for the purposes of this subpara­graph, shall be determined by the United States Sec­retary of Labor by reference to the average monthly covered employment for the first 4 of the most recent 6 calendar quarters ending before the close of such period.

4. There is a "state 'on' indicator" for a week if the rate of insured unemployment (not seasonally adjusted) under the state law, for the period consist­ing of such week and the 12 weeks immediately pre­ceding it:

a. Equaled or exceeded 120 percent of the aver­age of such rates for the corresponding 13-week peri­od ending in each ofthe preceding 2 calendar years; and

b. Equaled or exceeded 4 percent.

With respect to benefits for weeks of unemployment beginning after July 1, 1977, the determination of whether there has been a state "on" or "ofl" indica­tor beginning or ending any extended benefit period shall be made under this paragraph as if subpara­graph 4. did not contain sub-subparagraph a. thereof and the figure "4" contained in sub-subparagraph b. thereof were "5"; except that, notwithstanding any provision of this paragraph, any week for which there would otherwise be a state "on" indicator shall continue to be such a week and shall not be deter­mined to be a week for which there is a state "ofl"' indicator.

5. There is a "state 'off' indicator" for a week if, for the period consisting of such week and the imme­diately preceding 12 weeks, either sub-subparagraph a. or b. of subparagraph 4. was not satisfied.

6. "Rate of insured unemployment," for pur­poses of subparagraphs 4. and 5. of this paragraph, means the percentage derived by dividing the aver­age weekly number of individuals filing claims in this state for weeks of unemployment with respect to the most recent 13-consecutive-week period, as de­termined by the division on the basis of its reports to the United States Secretary of Labor, by the average monthly employment covered under this chapter for the first 4 of the most recent 6 completed calendar quarters ending before the end of such 13-week peri­od.

7. "Regular benefits" means benefits payable to an individual under this chapter or under any other state law, including benefits payable to federal civil­ian employees and to ex-servicemen pursuant to 5 U.S.C. chapter 85, other than extended benefits.

8. "Extended benefits" means benefits, including benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 U.S.C. chapter 85, paya­ble to an individual under the provisions of this sub­section for weeks of unemployment in his eligibility period.

9. "Eligibility period" of an individual means the period consisting of the weeks in his benefit year which begin in an extended benefit period and, if his benefit year ends within such extended benefit peri­od, any weeks thereafter which begin in such period.

10. "Exhaustee" means an individual who, with respect to any week of unemployment in his eligibili­ty period:

a. Has received, prior to such week, all of the regular benefits that were available to him under this chapter or any other state law, including de­pendents' allowances and benefits payable to federal civilian employees and ex-servicemen under 5 U.S.C. chapter 85, in his current benefit year that includes such week. For the purposes of this subparagraph, an individual shall be deemed to have received all of the regular benefits that were available to him al­though as a result of a pending appeal with respect to wages paid for insured work that were not consid­ered in the original monetary determination in his benefit year, he may subsequently be determined to be entitled to added regular benefits.

b. His benefit year having expired prior to such week, has been paid no, or insufficient, wages for insured work on the basis of which he could establish a new benefit year that would include such week; and

c.(l) Has no right to unemployment benefits or allowances, as the case may be, under the Railroad Unemployment Insurance Act, the Trade Expansion Act of 1962, the Automotive Products Trade Act of 1965, or such other federal laws as are specified in regulations issued by the United States Secretary of Labor; and

(II) Has not received and is not seeking unem­ployment benefits under the unemployment com­pensation law of the Virgin Islands or of Canada; but if he is seeking such benefits and the appropriate agency finally determines that he is not entitled to benefits under such law, he is considered an exhaus­tee, except that the reference in this sub-sub-sub­paragraph to the Virgin Islands shall be inapplica­ble effective on the day after the day on which the United States Secretary of Labor approves, under s. 3304(a) of the Internal Revenue Code of 1954, an unemployment compensation law submitted to the secretary by the Virgin Islands for approval.

11. "State law" means the unemployment insur­ance law of any state, approved by the United States Secretary of Labor under s. 3304 of the Internal Rev­enue Code of 1954.

(b) Effect of state law provisions relating to regu­lar benefits on claims for, and the payment of, extend­ed benefits.-Except when the result would be incon­sistent with the other provisions of this subsection,

940

F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

as provided in the regulations of the division, the provisions of this chapter which apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits. Such extended benefits shall be charged to the expe­rience rating accounts of employers to the extent the share of such extended benefits paid from this state's unemployment compensation trust fund is not eligi­ble for reimbursement from federal sources.

(c) Eligibility requirements for extended benefits. -An individual shall be eligible to receive extended benefits with respect to any week of unemployment in his eligibility period only if the division finds that with respect to such week:

1. He is an "exhaustee" as defined in subpara­graph (a)lO.

2. He has satisfied the requirements of this chap­ter for the receipt of regular benefits that are appli­cable to individuals claiming extended benefits, in­cluding not being subject to a disqualification for the receipt of benefits.

(d) Weekly extended benefit amount.-The week­ly extended benefit amount payable to an individual for a week of total unemployment in his eligibility period shall be an amount equal to the weekly bene­fit amount payable to him during his applicable ben­efit year. For any individual who was paid benefits during the applicable benefit year in accordance with more than 1 weekly benefit amount, the weekly extended benefit amount shall be the average of such weekly benefit amounts.

(e) Total extended benefit amount.-The total ex­tended benefit amount payable to any eligible indi­vidual with respect to his applicable benefit year shall be the least of the following amounts:

1. Fifty percent of the total amount of regular benefits which were payable to him under this chap­ter in his applicable benefit year; or

2. Thirteen times his weekly benefit amount which was payable to him under this chapter for a week of total unemployment in the applicable bene­fit year.

(D Beginning and termination of extended benefit period.-Whenever an extended benefit period is to become effective in this state (or in all states) as a result of a state or a national "on" indicator, or an extended benefit period is to be terminated in this state as a result of state and national "off' indica­tors, the division shall make an appropriate public announcement.

(g) Computations.-Computations required by the provisions of paragraph (a)6. shall be made by the division, in accordance with regulations pre­scribed by the United States Secretary of Labor.

History.-s. 4, ch. 18402, 1937; s. 2, ch. 19637, 1939; CGL 1940 Supp. 4151(491); s. 4, ch. 20685, 1941; s. 2, ch. 21983, 1943; s. I, ch. 23919, 1947; ss. 1-3, ch. 26801, 1951; s. I, ch. 29695, 1955; s. I, ch. 57-247; s. I , ch. 57-795; ss. I, 2, ch. 59-55; s. I, ch. 61-173; s. I, ch. 67-250; ss. 17, 35, ch. 69-106; ss. 1-3, ch. 70-166; s. 4, ch. 71-225; s. I, ch. 71-247; s. I, ch. 72-155; s. 2, ch. 74-198; s. I, ch. 75-121; s. 2, ch. 77-262; s. 2, ch. 77-399; s. I, ch. 79-293; s. 182, ch. 79-400.

443.05 Benefit eligibility conditions.-(!) An unemployed individual shall be eligible to

receive benefits with respect to any week only as the division finds that:

(a) He has made a claim for benefits with respect to such week in accordance with such regulations as the '[division] may prescribe.

(b) He has registered for work at, and thereafter continued to report at the division, which shall be responsible for notification of the Florida State Em­ployment Service in accordance with such regula­tions as the division may prescribe; except that the division may, by regulation not inconsistent with the purposes of this law, waive or alter either or both of the requirements of this subsection as to individuals attached to regular jobs; but no such regulation shall conflict with s. 443.04(1).

(c) I. He is able to work and is available for work. 2. Notwithstanding any other provisions in this

section, no otherwise eligible individual shall be de­nied benefits for any week because he is in training with the approval of the division, nor shall such indi­vidual be denied benefits with respect to any week in which he is in training with the approval of the divi­sion by reason of the application of provisions in subparagraph 1. of this paragraph relating to availa­bility for work, or the provisions of s. 443.06(2) relat­ing to failure to apply for, or a refusal to accept, suitable work.

(d) He has been unemployed for a waiting period of 1 week. No week shall be counted as a week of unemployment for the purposes of this subsection:

1. Unless it occurs within the benefit year which includes the week with respect to which he claims payment of benefits.

2. If benefits have been paid with respect there­to.

3. Unless the individual was eligible for benefits with respect thereto as provided in this section and s. 443.06 except for the requirements of this subsec­tion and of s. 443.06(5).

(e) He has been paid wages for insured work equal to 20 times his average weekly wages during his base period or, for claims filed on or after July 1, 1977, but prior to November 30, 1977, he has been paid wages for insured work equal to 10 times his average weekly wages during his base period, except that no unemployed individual shall be eligible to receive benefits if his average weekly wage is less than $20.

(2) No individual may receive benefits in a bene­fit year unless, subsequent to the beginning of the next preceding benefit year during which he re­ceived benefits, he performed service, whether or not in "employment" as defined in s. 443.03(5), and earned remuneration for such service in an amount equal to not less than 3 times his weekly benefit amount as determined for his current benefit year.

(3) Benefits based on service in employment de­fined in s. 443.03(5)(b) and (c) shall be payable in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other service subject to this chapter, except that:

(a) With respect to weeks of unemployment be­ginning after December 31, 1977, benefits shall not be paid based on services in an instructional, re­search, or principal administrative capacity for an educational institution or an institution of higher education for any week of unemployment commenc­ing during the period between 2 successive academic years, or during a similar period between two regu­lar terms, whether or not successive, or during a period of paid sabbatical leave provided for in the

941

Ch. 443 UNEMPLOYMENT COMPENSATION F.S.1979 -

individual's contract, to any individual, if such indi­vidual performs such services in the first of such academic years or terms, and there is a contract or a reasonable assurance that such individual will per­form services in any such capacity for any education­al institution or institution of higher education in the second of such academic years or terms.

(b) With respect to weeks of unemployment be­ginning after December 31, 1977, benefits shall not be based on services in any other capacity for an educational institution (other than an institution of higher education as defined in s. 443.03(5)(b)) to any individual for any week which commences during a period between 2 successive academic years or terms if such individual performs such services in the first of the academic years or terms and there is a reason­able assurance that such individual will perform such services in the second of the academic years or terms.

(c) With respect to weeks of unemployment be­ginning after December 31, 1977, benefits shall not be paid to any individual for any week which com­mences during an established and customary vaca­tion period or holiday recess if such individual per­forms any services described in paragraph (a) or par­agraph (b) in the period immediately before such vacation period or holiday recess, and there is a rea­sonable assurance that such individual will perform any such service in the period immediately following such vacation period or holiday recess.

(4) In the event of national emergency, in the course of which the Federal Emergency Unemploy­ment Payment Plan is, at the request of the Gover­nor, invoked for all or any part of the state, such plan shall supersede the procedures prescribed by this chapter, and by regulations thereunder, and the di­vision shall act as the Florida agency for the United States Department of Labor in the administration of such plan.

(5) Benefits shall not be paid to any individual on the basis of any service, substantially all of which consists of participating in sports or athletic events or training, or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such individual performed such service in the first of such seasons (or similar periods) and there is a rea­sonable assurance that such individual will perform such services in the later of such seasons (or similar periods).

(6) With respect to weeks of unemployment be­ginning on or after January 1, 1978, wages for in­sured work shall include wages paid for previously uncovered services. For the purposes of this subsec­tion, except to the extent that assistance under Title II of the Emergency Jobs and Unemployment Assis­tance Act of 197 4 was paid on the basis of such ser­vices, the term "previously uncovered services" means services:

(a) Which were not employment as defined in this chapter prior to January 1, 1978, and were not services covered pursuant to s. 443.09(3) at any time during the 1-year period ending December 31, 1975; and

(b) Which are:

1. Agricultural labor or domestic service as de­fined in s. 443.03(5); or

2. Services performed by an employee of this state or a political subdivision thereof, as provided in s. 443.03(5)(b), or by an employee of a nonprofit edu­cational institution which is not an institution of higher education, as provided in s. 443.03(5).

(7) Benefits paid to any individual whose base period wages include wages for previously uncovered services, as defined in subsection (6), shall not be charged to the employer or the employer's experi­ence rating account, to the extent that such individu­al would not have been eligible to receive such com­pensation had the state not provided for payment of compensation on the basis of such previously uncov­ered services, and provided benefits shall be paid for such previously uncovered service only to the extent that the division determines the unemployment compensation fund may be reimbursed for such ben­efits pursuant to s. 121 of Pub. L. No. 94-566.

History.-s. 5, ch. 18402, 1937; s. 3, ch. 19637, 1939; CGL 1940 Supp. 4151(492); s. 5, ch. 20685, 1941; s. 3, ch. 21983, 1943; s. 3, ch. 26879, 1951; s. 3, ch. 29771, 1955; s. 2, ch. 57-247; s. 3, ch. 59-55; s. 2, ch. 61-132; ss. 17, 35, ch. 69-106; s. 5, ch. 71-225; s. 2, ch. 75-39; s. 3, ch. 77-262; s. 3, ch. 77-399; s. 1, ch. 77-420; s. 2, ch. 78-386.

1Note.-Bracketed word was substituted by the editors for the word "com­mission" to conform to ch. 69-106, the Reorganization Act of 1969. Sees. 17(4) and (8). The bracketed substitution reflects the fact that administrative func­tions formerly attributed to the Florida Industrial Commission are now per­formed by the division.

443.06 Disqualification for benefits.-An indi­vidual shall be disqualified for benefits:

(1) For the week in which he has voluntarily left his employment without good cause attributable to his employer or in which he has been discharged by his employing unit for misconduct connected with his work, if so found by the division.

(a) Disqualification for voluntarily quitting shall continue for the full period of unemployment next ensuing after he has left his work voluntarily with­out good cause and until such individual has become reemployed and has earned wages equal to or in excess of 17 times his weekly benefit amount; good cause as used in this subsection shall include only such cause as is attributable to the employer or con­sists of illness or disability of the individual requir­ing separation from his employment. An individual shall not be disqualified under this subsection for voluntarily leaving temporary employment to re­turn immediately when called to employment by the permanent employer who temporarily terminated his employment within the previous 6 calendar months.

(b) Disqualification for being discharged for mis­conduct connected with his work shall continue for the full period of unemployment next ensuing after having been discharged and until such individual has become reemployed and has earned wages not less than 17 times his weekly benefit amount and for not more than 52 weeks which immediately follow such week, as determined by the division in each case according to the circumstances in each case or the seriousness of the misconduct, pursuant to rules of the division enacted for determinations of disqual­ification for benefits for misconduct.

(2) If the division finds that the individual has failed without good cause either to apply for availa­ble suitable work when so directed by the division or employment office, or to accept suitable work when

942

F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

offered to him, or to return to his customary self­employment when so directed by the division, such disqualification shall continue for the week in which such failure occurred and for not more than 5 weeks immediately following such week, or a reduction by not more than 3 weeks from the duration ofbenefits, as determined by the division in each case. However, disqualification under this subsection shall continue for the full period of unemployment next ensuing after he has failed without good cause either to apply for available suitable work, or to accept suitable work, or to return to his customary self-employment, pursuant to this subsection, and until such individu­al has become reemployed and has earned wages equal to or in excess of 17 times his weekly benefit amount. The division shall by rule provide criteria for determining the suitability of work, as used in this section. The division in developing such rules shall consider the duration of a claimant's unem­ployment in determining the suitability of work and the suitability of proposed rates of compensation for available work. Further, after an individual has re­ceived 25 weeks of benefits in a single year, suitable work shall be a job which pays the minimum wage and is 120 percent or more of the weekly benefit amount the individual is drawing.

(a) In determining whether or not any work is suitable for an individual, the division shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unem­ployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence. ·/(b) Notwithstanding any other provisions of this

chapter, no work shall be deemed suitable and bene­fits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

1. If the position offered is vacant due directly to a strike, lockout, or other labor dispute;

2. If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;

3. If as a condition of being employed, the indi­vidual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

(3) For any week with respect to which he is re­ceiving or has received remuneration in the form of:

(a) Wages in lieu of notice; (b)l. Compensation for temporary partial disa­

bility, temporary total disability or permanent total disability under the workers' compensation law of any state or under a similar law of the United States.

2. Provided, that if the remuneration referred to in paragraphs (a) and (b) of this subsection is less than the benefits which would otherwise be due un­der this chapter, he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration.

(4) For any week with respect to which the divi­sion finds that his total or partial unemployment is due to a labor dispute in active progress which exists at the factory, establishment or other premises at

which he is or was last employed; provided, that this subsection shall not apply if it is shown to the satis­faction of the division that:

(a) He is not participating in or financing, or di­rectly interested in the labor dispute which is in active progress; provided, however, that the pay­ment of regular union dues shall not be construed as financing a labor dispute within the meaning of this section; and

(b) He does not belong to a grade or class of work­ers of which immediately before the commencement of the labor dispute there were members employed at the premises at which the labor dispute occurs any of whom are participating in, or financing, or directly interested in the dispute; provided, that if in any case separate branches of work which are com­monly conducted as separate businesses in separate premises, or are conducted in separate departments of the same premises, each department shall, for the purpose of this subsection be deemed to be a separate factory, establishment or other premises.

(5) For any week with respect to which or a part of which he has received or is seeking unemploy­ment benefits under an unemployment compensa­tion law of another state or of the United States; for the purposes of this subsection, an unemployment compensation law of the United States is any law of the United States which provides for payment of any type and in any amounts for periods of unemploy­ment due to lack of work; provided, that if the appro­priate agency of such other state or of the United States finally determines that he is not entitled to such unemployment benefits, this disqualification shall not apply.

(6) For a period of not to exceed 1 year from the date of the discovery by the division of the making of any false or fraudulent representation for the pur­pose of obtaining benefits contrary to the provisions of this chapter, constituting a violation within the intent of s. 443.22 hereof; provided, that any such disqualification may be appealed from in the same manner as from any other disqualification imposed hereunder; and provided further that a conviction by any court of competent jurisdiction in this state of the offense prohibited or punished by s. 443.22 here­in shall be conclusive upon the appeals referee and the commission of the making of such false or fraud­ulent representation for which disqualification is imposed hereunder.

(7) If the division finds that the individual is an alien, unless such alien is an individual who has been lawfully admitted for permanent residence or otherwise is permanently residing in the United States under color of law (including an alien who is lawfully present in the United States as a result of the application of the provisions of s. 203(a)(7) or s. 212(d)(5) of the Immigration and Nationality Act), provided that any modifications to the provisions of s. 3304(a)(14) of the Federal Unemployment Tax Act, as provided by Pub. L. No. 94-566, which specify oth­er conditions or other effective dates than those stat­ed herein for the denial of benefits based on services performed by aliens, and which modifications are required to be implemented under state law as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, shall be

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Ch. 443 UNEMPLOYMENT COMPENSATION F.S.1979

deemed applicable under the provisions of this sec­tion, provided:

(a) Any data or information required of individu­als applying for benefits to determine whether bene­fits are not payable to them because of their alien status shall be uniformly required from all appli­cants for benefits; and

(b) In the case of an individual whose application for benefits would otherwise be approved, no deter­mination that benefits to such individual are not payable because of his alien status shall be made except upon a preponderance of the evidence.

(c) If the division finds that said individual has refused without good cause an offer of resettlement or relocation, which offer provides for suitable em­ployment for such individual notwithstanding the distance of such relocation, resettlement, or employ­ment from the current location of such individual in this state, such disqualification shall continue for the week in which such failure occurred and for not more than 17 weeks immediately following such week, or a reduction by not more than 5 weeks from the duration of benefits, as determined by the divi­sion in each case.

(8) For any week with respect to which he has received, or is eligible to receive, from a base period employing unit, benefits from a retirement, pension, or annuity program embodied in a union contract or either a public or private employee benefit program, notwithstanding that the source of the contribution of any moneys to the respective program was the employer or employee or both. However, for any week in which benefits from a retirement, pension, or annuity program as referred to in this subsection are less than the weekly benefits which would other­wise be due under this chapter, he shall be entitled to receive for such week, if otherwise eligible, bene­fits reduced by the benefits from the retirement, pension, or annuity program, prorated to a weekly basis. For the purpose of this subsection, benefits from the United States Social Security Act, a disabil­ity benefit program, a supplemental unemployment benefit program, or any other program not specifi­cally designated either in the union contract or a company benefit program as being retirement, pen­sion, or annuity benefits shall not be disqualifying.

(9) For purposes of this section, misconduct in­cludes, but is not limited to, the following, which shall not be construed in pari materia with each other:

(a) Conduct evincing such willful or wanton dis­regard of an employer's interests as is found in delib­erate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful in­tent, or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his em­ployer.

(10) If the individual was terminated from his employment for violation of any criminal law pun­ishable by imprisonment, or for any dishonest act, in connection with his employment, as follows:

(a) If the division or the Unemployment Appeals

Commission finds that the individual was terminat­ed from his employment for violation of any criminal law punishable by imprisonment in connection with his work, and the individual has been found guilty of the offense, has made an admission of guilt in a court of law, or has entered a plea of no contest, the indi­vidual shall not be entitled to unemployment com­pensation for up to 52 weeks, pursuant to rules adopted by the division, and until he becomes reem­ployed and earns 10 times his weekly benefit amount. If, prior to an adjudication of guilt, an ad­mission of guilt, or a plea of no contest, the employer can show before a hearing examiner or appeals ref­eree that the arrest was due to a crime against the employer or the employer's business and, after con­sidering all the evidence, the hearing examiner or appeals referee finds misconduct in connection with the individual's work, the individual shall not be entitled to unemployment compensation.

(b) If the division or the Unemployment Appeals Commission finds that the individual was terminat­ed from employment for any dishonest act in connec­tion with his work, the individual shall not be enti­tled to unemployment compensation for up to 52 weeks, pursuant to rules adopted by the division, and until he becomes reemployed and earns 10 times his weekly benefit amount. In addition, should the em­ployer terminate an individual as a result of a dis­honest act in connection with his employment and the hearing examiner or appeals referee finds mis­conduct in connection with his work, the individual shall not be entitled to unemployment compensa­tion.

With respect to an individual so disqualified for ben­efits, the account of the terminating employer, if such employer is in the base period, shall be non­charged at the time the disqualification is imposed.

History.- s. 6, ch . 18402, 1937; s. 4, ch. 19637, 1939; CGL 1940 Supp. 4151(493); s. 6, ch. 20685, 1941; s. 4, ch. 21983, 1943; s. 1, ch. 24083, 1947; s. 3, ch . 28242, 1953; s. 1, ch . 63-327; s. 1, ch. 63-157; s. 1, ch. 65-45; s. 1, ch. 65-114; s . 1, ch. 65-115; s. 1, ch . 65-244; s . 1, ch. 65-411; ss. 17, 35, ch. 69-106; s. 1, ch. 72-190; s. 4, ch. 77-262; s. 4, ch. 77-399; s. 1, ch. 77-424; s. 1, ch. 78-386; s. 22, ch. 79-7; s. 74, ch. 79-40; s . 2, ch. 79-293; s. 2, ch. 79-308; s. 183, ch. 79-400.

443.07 Procedure concerning claims.-(1) POSTING OF INFORMATION.-Each em­

ployer shall post and maintain in places readily ac­cessible to individuals in his employ printed state­ments concerning benefit rights, claims for benefits and such other matters relating to the administra­tion of this chapter as the division may by regulation prescribe. Each employer shall supply to such indi­viduals copies of such printed statements or other materials relating to claims for benefits when and as the division may by regulations prescribe. Such printed statements and other materials shall be sup­plied by the division to each employer without cost to the employer.

(2) FILING OF CLAIM.-Claims for benefits shall be made in accordance with such regulations as the division may prescribe.

(3) DETERMINATION.-(a) In general.-An initial determination upon a

claim filed pursuant to subsection (2) shall be made promptly by an examiner designated by the division and shall include a statement as to whether and in what amount claimant is entitled to benefits and, in

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F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

the event of a denial, shall state the reasons therefor. A determination with respect to the first week of a benefit year shall also include a statement as to whether the claimant has been paid the wages re­quired under s. 443.05(1)(e), and if so, the first day of the benefit year, his weekly benefit amount, and the maximum total amount of benefits payable to him with respect to a benefit year. The claimant, his most recent employing unit, and all employers whose ac­counts would be charged with benefits pursuant to such determination shall be promptly notified of such initial determination, and such determination shall be final unless within 20 days after the mailing of such notices to the parties' last known addresses, or in the absence of such mailing, within 20 days after the delivery of such notice, appeal or written request for reconsideration is filed by the claimant or other party entitled to such notice.

(b) Determinations in labor dispute cases.­Whenever any claim involves the application of the provisions ofs. 443.06(4), the examiner handling the claim shall, if so directed by the division, promptly transmit such claim to a special examiner designat­ed by the division to make a determination upon the issues involved under that subsection or upon such claims. Such special examiner shall make the deter­mination thereon after such investigation as he deems necessary, and after affording the parties en­titled to notice an opportunity for a fair hearing in accordance with the provisions of this section with respect to hearings and determinations of appeals referees. The parties shall be promptly notified of the determination, together with the reason there­for, and such determination shall be deemed to be the final decision on the claim, unless within 20 days after the mailing of notices to the parties' last known addresses, or, in the absence of such mailing, within 20 days after the delivery of such notice, appeal is filed with the commission or notice of review is en­tered by that body.

(c) Redeterminations.-!. The division may reconsider a determination

whenever it finds that an error has occurred in con­nection therewith, or whenever new evidence or in­formation pertinent to such determination has been discovered subsequent to any previous determina­tion or redetermination. No such redetermination shall be made after 1 year from the date the claim was filed, unless it appears that the disqualification imposed by s. 443.06(6) is applicable, in which case the redetermination may be made at any time with­in 2 years from the date of the making of such false or fraudulent representation. Notice of redetermi­nation shall be promptly given to the claimant and to any employers entitled to notice thereof in the manner prescribed in this section with respect to notice of an initial determination. If the amount of benefits is increased upon such redetermination, an appeal therefrom solely with respect to the matters involved in such increase may be filed in the manner and subject to the limitations provided in subsection (4) of this section. If the amount of benefits is de­creased upon such redetermination, the matters in­volved in such decrease shall be subject to review in connection with an appeal by claimant from any determination upon a subsequent claim for benefits

which may be affected in amount or duration by such redetermination. Subject to the same limita­tions and for the same reasons, the division may reconsider its determination in any case in which the final decision has been rendered by an appeals referee, the commission, or a court, and may apply to the body or court which rendered such final deci­sion to issue a revised decision.

2. In the event that an appeal involving an origi­nal determination is pending as of the date a redeter­mination thereof is issued, such appeal unless with­drawn shall be treated as an appeal from such rede­termination.

(d) Notice of determination or redetermination pursuant to s. 443.06.-Notice of any determination or redetermination which involves the application of the provisions ofs. 443.06, together with the reasons therefor, shall be promptly given to the claimant and to any employer entitled to notice thereof, such notice to be given in the manner provided in this subsection, provided that the division shall by regu­lation prescribe the manner and procedure pursuant to which employers within the base period of a claim­ant may become entitled to such notice.

(4) APPEALS.-(a) Appeals referees.-The division shall appoint

one or more impartial salaried appeals referees se­lected in accordance with s. 443.12(4) to hear and decide appealed or disputed claims. Such appeals ref­erees shall have such qualifications as may be estab­lished by the merit system council upon the advice and consent of the division. No person shall partici­pate on behalf of the division as an appeals referee in any case in which he is an interested party. The division may designate alternates to serve in the absence or disqualification of any appeals referee upon a temporary basis and pro hac vice which alter­nate shall be possessed of the same qualifications required of appeals referees. The division shall pro­vide the commission and the appeals referees with proper facilities and assistance for the execution of their functions .

(b) Filing and hearing.-!. The claimant or any other party entitled to

notice of a determination as herein provided may file an appeal from such determination with an appeals referee within 20 days after the date of mailing of the notice to his last known address or, if such notice is not mailed, within 20 days after the date of deliv­ery of such notice.

2. Unless the appeal is withdrawn with his per­mission or is removed to the commission, the appeals referee, after mailing all parties a notice of hearing at least 14 days prior to the date of hearing, shall affirm, modify, or reverse such determination; pro­vided, however, that whenever an appeal involves a question as to whether services were performed by claimant in employment or for an employer, the ref­eree shall give special notice of such issue and of the pendency of the appeal to the employing unit and to the division, both of whom shall thenceforth be par­ties to the proceeding.

3. The parties shall be promptly notified of such referee's decision and such decisions shall be final unless, within 20 days after the date of mailing of notice thereof to the party's last known address or,

945

Ch. 443 UNEMPLOYMENT COMPENSATION F.S.1979

in the absence of such mailing, within 20 days after the delivery of such notice, further review is initiat­ed pursuant to paragraph (c).

(c) Review by commission.-The commission may, on its own motion, within the time specified in paragraph (b), initiate a review of the decision of an appeals referee or determination of a special exam­iner or may allow an appeal from such decision on application filed within such time by the division or by any party entitled to notice of such decision. An appeal filed by any such party shall be allowed as of right if the examiner's determination was not af­firmed by the appeals referee. Upon review on its own motion or upon appeal, the commission may on the basis of the evidence previously submitted in such case, or upon the basis of such additional evi­dence as it may direct be taken, affirm, modify, or reverse the findings and conclusions of the appeals referee. The commission may remove to itself or transfer to another appeals referee the proceedings on any claim pending before an appeals referee. Any proceeding so removed to the commission prior to the completion shall be heard by the commission in accordance with the requirement of this subsection with respect to proceedings before an appeals refer­ee. Upon denial by the commission of an application for appeal from the decision of an appeals referee, the decision of the appeals referee shall be deemed to be a decision of the commission within the mean­ing of this paragraph for purposes of judicial review and shall be subject to judicial review within the time and in the manner provided for with respect to decisions ofthe commission, except that the time for initiating such review shall run from the date of notice of the order of the commission denying the application for appeal.

(d) Procedure.-The manner in which appealed claims shall be presented shall be in accordance with rules prescribed by the commission. Witnesses sub­poenaed pursuant to this section shall be allowed fees at a rate fixed by the division, and fees of wit­nesses subpoenaed on behalf of the division or any claimant shall be deemed part of the expense of ad­ministering this chapter.

(e) Judicial review.-Orders of the commission entered pursuant to paragraph (c) of this subsection shall be subject to review only by notice of appeal in the district court of appeal in the appellate district in which the issues involved were decided by an ap­peals referee, and the commission shall be made a party respondent to every such procee,ding, notwith­standing any provision to the contrary in chapter 120. The division shall have the right to initiate judi­cial review of orders in the same manner and to the same extent as any other party.

(5) PAYMENT OF BENEFITS.-(a) Benefits shall be promptly paid in accordance

with a determination or redetermination regardless of any appeal or pending appeal. However, any em­ployer who, pursuant to the provisions ofs. 443.08(4), (5), or (6), is liable for reimbursement payments in

benefits to the employee. (b) If a determination allowing benefits is af­

firmed in any amount by an appeals referee, or is so affirmed by the commission or if a decision of an appeals referee allowing benefits is affirmed in any amount by the commission, such benefits shall be promptly paid regardless of any further appeal, and no injunction, supersedeas, stay, or other writ or process suspending the payment of such benefits shall be issued by any court. However, if such deci­sion is finally reversed, no employer liable for contri­butions under the contributory system of financing unemployment compensation benefits shall be charged with benefits so paid pursuant to the errone­ous determination and benefits shall not be paid for any subsequent weeks of unemployment involved in such reversal.

(c) That portion of paragraph (b) relating to charging an employer liable for contributions shall not be applicable to employers using the reimbursa­ble method of financing benefit payments.

(6) RECOVERY AND RECOUPMENT.-(a) Any person who, by reason of his fraud has

received any sum as benefits under this chapter to which he was not entitled shall be liable to repay such sum to the division for and on behalf of the trust fund, or, in the discretion of the division, to have such sum deducted from future benefits paya­ble to him under this chapter, provided a finding of the existence of such fraud has been made by a rede­termination or decision pursuant to this section within 2 years from the commission of such fraud, and provided no such recovery or recoupment of such sum may be effected after 5 years from the date of such redetermination or decision.

(b) If any person, other than by reason of his fraud, has received any sum as benefits under this chapter to which, under a redetermination or deci­sion pursuant to this section, he has been found not entitled, he shall be liable to repay such sum to the division for and on behalfofthe trust fund or, in the discretion of the division, shall have such sum de­ducted from any future benefits payable to him un­der this chapter. No such recovery or recoupment of such sum may be effected after 2 years from the date of such redetermination or decision.

(c) No recoupment from future benefits shall be had if such sum was received by such person without fault on his part and such recoupment would defeat the purpose of this chapter or would be against equi­ty and good conscience.

(d) In any case in which under this section a claimant is liable to repay to the division any sum for the fund, such sum shall be collectible without inter­est by a deduction from benefits pursuant to a rede­termination as above provided, or by civil action in the name of the division.

History.-s. 7, ch. 18402, 1937; CGL 1940 Supp. 4151(494); s. 7, ch. 20685, 1941; s. 1, ch. 21982, 1943; s. 2, ch. 24083, 1947; s. 10, ch. 26484, 1951; s. 4, ch. 26879, 1951; s. 4, ch. 28242, 1953; ss. 1-4, ch. 29769, 1955; s. 1, ch. 57-268; s. 3, ch. 61-132; ss. 17, 35, ch. 69-106; s. 1, ch. 70-87; s. 1, ch. 72-154; s. 11, ch. 78-95; s. 4, ch. 78-386; s. 23, ch. 79-7; s. 3, ch. 79-308; s. 184, ch. 79-400.

lieu of contributions for the payment of such benefits 443.08 Contributions.-shall be notified, at the address on file with the Divi- (1) WHEN PA YABLE.-Contributions shall ac-sion of Employment Security, as to the initial deter- crue and become payable by each employer for each mination of the claim, and the employer shall be calendar quarter in which he is subject to this chap­given 10 days to respond, prior to the payment of the ter, with respect to wages paid during such calendar

946

F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

quarter for employment. Such contributions shall become due and be paid by each employer to the division for the fund, in accordance with such regu­lations as the division may prescribe. However, noth­ing in this subsection shall be construed to prohibit the division from adopting rules to allow, on a limit­ed basis, at the request of the employer, certain em­ployers to pay contributions or report wages at inter­vals other than quarterly when such payment or reporting is to the advantage of the division and the employers; provided that such interval for payment of contributions or report of wages shall not be less than quarterly. Contributions shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ. In the payment of any con­tributions, a fractional part of a cent shall be disre­garded unless it amounts to one-half cent or more, in which case it shall be increased to 1 cent.

(2) RATES.-Each employer is required to pay contributions equal to the following percentages of wages paid by him with respect to employment:

(a) Each employer whose employment record has been chargeable with benefit payments for less than 12 calendar quarters shall pay contributions at the rate of 2. 7 percent with respect to wages paid on or before December 31, 1971, and at the rate of 1 per­cent with respect to wages paid on or after January 1, 1972, and at the rate of 2.7 percent with respect to wages paid on or after January 1, 1978, except that no employer whose tax rate is the 1 percent initial rate shall have such rate increased without having the tax rate computed as provided in para­graph (3)(b).

(b) Each employer whose employment record has been chargeable with benefit payments for at least 12 calendar quarters shall pay contributions at the rate of2.7 percent with respect to employment after December 31, 1937, except as otherwise determined by experience rating provisions of this chapter. For the purposes ofthis section the total wages on which contributions have been paid by a single employer or his predecessor to an individual in any state within a single calendar year shall be counted to determine whether more remuneration than constitutes "wages" as defined by s. 443.03(13)(b)l. has been paid to such individual by such employer or his predeces­sor in 1 calendar year.

(c)l. Should the Congress either amend or repeal the Wagner-Peyser Act, the Federal Unemployment Tax Act, the Social Security Act or subtitle C of the Internal Revenue Code, or any act or acts supple­mental to or in lieu thereof, or any part or parts of either or all of said laws, or should either or all of said laws, or any part or parts thereof, be held in­valid, to the end and with such effect that appropria­tions of funds by the said Congress and grants there­of to Florida for the payment of costs of administra­tion of the division become no longer available for such purposes, or should employers in Florida sub­ject to the payment oftax under the Federal Unem­ployment Tax Act be granted full credit upon such a tax for contributions or taxes paid to the Unem­ployment Compensation Trust Fund, then in such case, beginning with the effective date of such change in liability for payment of such federal tax, and for each year thereafter, the standard contribu-

tion rate under this chapter shall be 3 percent per annum of each such employer's payroll subject to contributions. With respect to each such employer having a reduced rate of contribution for such year pursuant to terms of subsection (3) hereof, to the rate of contribution, as determined for such year in which such change occurs, shall be added three-tenths of 1 percent.

2. The amount of the excess of tax for which such employer is or may become liable, by reason of this subsection, over the amount which such employer would pay or become liable for except for the provi­sions of this subsection, shall be paid and transferred into the Employment Security Administration Trust Fund to be disbursed and paid out under the same conditions and for the same purposes as are other moneys provided to be paid into such fund; provided, that if the division shall determine that as of Janu­ary 1 of any year, there is an excess in said fund over the moneys and funds required to be disbursed there­from for the purposes thereof for such year, then, and in such cases an amount equal to such excess, as determined by the division, shall be transferred to and become a part of the Unemployment Compensa­tion Trust Fund, and such funds shall be deemed to be and are hereby appropriated for the purposes set out in this chapter.

(d) In the event that the Federal Unemployment Tax Act is amended to permit credit against such tax in excess of2.7 percent with respect to any calendar year, payment ofthe amount of contributions neces­sary to qualify an employer for such additional cred­it shall be deemed to be required under this chapter.

(3) CONTRIBUTION RATES BASED ON BEN­EFIT EXPERIENCE.-

(a) The benefit payments made to any eligible individual shall be charged to the employment record of each employer who paid such individual wages equal to $100 or more within the base period of said individual in the proportion to which wages paid by each such employer to such individual with­in the base period bears to total wages paid by all such employers to such individual within the base period. Provided, that no benefit charges shall be made to the employment record of any employer who has furnished part-time work to an individual who, because ofloss of employment with one or more other employers, becomes eligible for partial bene­fits while still being furnished part-time work by such employer on substantially the same basis and in substantially the same amount as has been made available to such worker during his base period, whether the employments were simultaneous or suc­cessive. Provided, further, that benefit payments will not be charged to the accounts of employers when such employers have furnished the division with such notices regarding separations of individu­als from work and the refusal ofindividuals to accept offers of suitable work as are required by the provi­sions of this chapter and the regulations of the divi­sion, if one or more of the following conditions are found to be applicable:

1. When an individual has left his job without good cause attributable to his employer or has been discharged by his employer for misconduct connect­ed with his work, no benefits subsequently paid to

947

Ch. 443 UNEMPLOYMENT COMPENSATION F.S.1979

him on the basis of wages paid to such individual by such employer prior to such separation shall be charged to such employer's account.

2. Benefits which are paid to any individual sub­sequent to the refusal without good cause by such individual of an offer of suitable employment from an employer will not be charged to the account of such employer when all or any part of such benefits are upon the basis of wages paid to such individual by such employer prior to the refusal by such indi­vidual to accept such offer of suitable work. (The division shall determine with respect to the payment of all benefits whether this proviso shall be applied without regard to whether a disqualification pursu­ant to the provisions of s. 443.06 has or may be in­voked against a claimant or claimants for benefits.)

(b)l. On and after January 1, 1958, the division shall, notwithstanding the provisions of paragraph (d) of this subsection, compute a benefit ratio for each employer not previously eligible therefor whose unemployment record has been chargeable with benefit payments for at least 12 calendar quarters immediately preceding the calendar quarter for which the benefit ratio is computed. Such employer's benefit ratio shall be the quotient obtained by divid­ing the total benefit payments chargeable to his em­ployment record during the 12 completed calendar quarters immediately preceding the calendar quar­ter for which the benefit ratio is computed by the total of his annual payrolls (as defined in paragraph (f) of this subsection) for the first 12 of the 13 com­pleted calendar quarters immediately preceding the calendar quarter for which the benefit ratio is com­puted. Such benefit ratio shall be computed to the fifth decimal place, and rounded to the fourth deci­mal place, and shall be applicable only for the re­mainder of the calendar year in which it becomes effective, after which the benefit ratio of such em­ployer shall be computed as provided in subpara­graph 2. hereof. Variation from the standard rate of contribution shall be assigned on a quarterly basis to such employers eligible therefor in like manner as assignments made for a calendar year under para­graph (e) of this subsection.

2. The division shall, for each calendar year, compute a benefit ratio for each employer whose employment record has been chargeable with bene­fit payments for at least 3 calendar years immediate­ly preceding the calendar year for which the benefit ratio is computed. An employer's benefit ratio shall be the quotient obtained by dividing the total benefit payments chargeable to his employment record dur­ing the 3-year period ending December 31 of the preceding calendar year by the total of his annual payrolls (as defined in paragraph (f) of this subsec­tion) for the 3-year period ending September 30 of the preceding calendar year. Such benefit ratio shall be computed to the fifth decimal place and rounded to the fourth decimal place.

3. On and after January 1, 1978, the division shall compute a benefit ratio for each employer not previously eligible therefor whose initial tax rate is 2.7 percent and whose unemployment has been chargeable with benefit payments for at least 8 cal­endar quarters immediately preceding the calendar quarter for which the benefit ratio is computed. Such

employer's benefit ratio shall be the quotient ob­tained by dividing the total benefit payments charged to his employment record during the 8 com­pleted calendar quarters immediately preceding the calendar quarter for which the benefit ratio is com­puted by the total of his annual payrolls (as defined in paragraph (f) of this subsection) for the first 8 of the 9 completed calendar quarters immediately pre­ceding the calendar quarter for which the benefit ratio is computed. Such benefit ratio shall be com­puted to the fifth decimal place and rounded to the fourth decimal place and shall be applicable for the remainder of the calendar year. The employer will next be rated on an annual basis using up to 12 calendar quarters of benefits charged and up to 12 calendar quarters of annual payrolls. Such employ­er's benefit ratio shall be the quotient obtained by dividing the total benefit payments charged to his employment record by the total of his annual pay­rolls, as defined in paragraph (f), for the quarters used in his first computation plus the subsequent quarters reported through September 30 of the prior year. Each year thereafter the rate will be computed as provided in subparagraph 2. Variation from the standard rate of contribution shall be assigned on a quarterly basis to such employers eligible therefor in like manner as assignments made for a calendar year under paragraph (e) of this subsection.

(c) The standard rate of contributions payable by each employer shall be 2.7 percent.

(d) Employers shall be eligible for rate variations from the standard rate of contributions, as herein­after described, in any calendar year, only if their employment records have been chargeable with ben­efit payments throughout the 3 consecutive calendar years ending on December 31, of the preceding calen­dar year.

(e)l. Variations from the standard rate of contri­butions shall be assigned with respect to each calen­dar year to employers eligible therefor. In determin­ing the contribution rate, varying from the standard rate to be assigned each employer, adjustment fac­tors provided for in sub-subparagraphs a.-c. will be added to the benefit ratio. This addition will be ac­complished in two steps by adding a variable adjust­ment factor and a final adjustment factor as defined below. The sum of these adjustment factors provided for in sub-subparagraphs a .-c. will first be algebrai­cally summed. The sum of these adjustment factors will then be divided by a gross benefit ratio to be determined as follows: Total benefit payments for the previous 3 calendar years charged to employers eligible to be assigned a contribution rate different from the standard rate minus excess payments for the same period divided by taxable payroll entering into the computation of individual benefit ratios for the current calendar year. The ratio of the sum of the adjustment factors provided for in sub-subpara­graphs a .-c. to the gross benefit ratio will be multi­plied by each individual benefit ratio below the max­imum tax rate to obtain variable adjustment factors; except that in any instance in which the sum of an employer's individual benefit ratio and variable ad­justment factor exceeds the maximum tax rate, the variable adjustment factor will be reduced so that the sum equals the maximum tax rate. The variable

948

F.S.1979 UNEMPLOYMENT COMPENSATION Ch. 443

adjustment factor of each such employer will be mul­tiplied by his taxable payroll entering into the com­putation of his benefit ratio. The sum of these prod­ucts will be divided by the taxable payroll of such employers that entered into the computation of their benefit ratios. The resulting ratio will be subtracted from the sum of the adjustment factors provided for in sub-subparagraphs a .-c. to obtain the final adjust­ment factor. The variable adjustment factors and the final adjustment factor will be computed to five decimal places and rounded to the fourth decimal place. This final adjustment factor will be added to the variable adjustment factor and benefit ratio of each employer and the sum rounded to 3 decimal places to obtain each employer's contribution rate; however, at no time shall an employer's contribution rate be rounded to less than 0.1 percent.

a. An adjustment factor for noncharge benefits will be computed to the fifth decimal place, and rounded to the fourth decimal place, by dividing the amount of benefit payments noncharged in the 3 preceding calendar years by the taxable payroll of employers eligible to be considered for assignment of a contribution rate different from the standard rate that have a benefit ratio for the current year less than the maximum contribution rate, except that in computing the adjustment factor for 1964 the 2 pre­ceding calendar years ofnoncharged benefits will be used. The taxable payroll of such employers will be the taxable payrolls for the 3 years ending Septem­ber 30 of the preceding calendar year that had been reported to the division by December 31 of the same calendar year except that in computing the adjust­ment factor for 1964 the 2 preceding years of taxable payrolls will be used. Noncharge benefits for the pur­pose of this section shall be defined as benefit pay­ments to an individual which were paid from the Unemployment Compensation Trust Fund but which were not charged to the unemployment record of any employer.

b. An excess payments adjustment factor will be computed to the fifth decimal place, and rounded to the fourth decimal place, by dividing the total excess payments during the 3 preceding calendar years by the taxable payroll of employers eligible to be consid­ered for assignment of a contribution rate different from the standard rate that have a benefit ratio for the current year less than the maximum contribu­tion rate, except that in computing the adjustment factor for 1964 the 2 preceding years' excess pay­ments will be used. The taxable payroll of such em­ployers will be the same as used in computing the noncharge adjustment factor as described in sub­subparagraph (3)(e)l.a. Excess payments for the pur­pose of this section shall be defined as the amount of benefit payments charged to the employment record of an employer during the 3 preceding calendar years less the product of the maximum contribution rate and his taxable payroll for the 3 years ending September 30 of the preceding calendar year that had been reported to the division by December 31 of the same calendar year, except that in computing excess payments for use in 1964 contribution rate determination the 2 preceding years will be used. Total excess payments shall be defined as the sum of the individual employer excess payments for those

employers that were eligible to be considered for assignment of a contribution rate different from the standard rate.

c. If the balance in the Unemployment Compen­sation Trust Fund as of December 31 of the calendar year immediately preceding the calendar year for which the contribution rate is being computed is less than 4 percent of the taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the division by December 31 of that calendar year, a positive adjustment factor will be computed. Such adjustment factor shall be comput­ed annually to the fifth decimal place, and rounded to the fourth decimal place, by dividing the sum of the total taxable payrolls for the year ending Sep­tember 30 of the preceding calendar year as reported to the division by December 31 of such calendar year into a sum equal to one-fourth of the difference be­tween the amount in the fund as of December 31 of such preceding calendar year and the sum of 5 per­cent of the total taxable payrolls for that year. Such adjustment factor will remain in effect in subse­quent years until a balance in the Unemployment Compensation Trust Fund as of December 31 of the year immediately preceding the effective date of such contribution rate equals or exceeds 4 percent of the taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the division by December 31 of that calendar year. If the balance in the Unemployment Compensation Trust Fund as of December 31 of the year immediately preceding the calendar year for which the contribu­tion rate is being computed exceeds 5 percent of the taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the divi­sion by December 31 of that calendar year, a nega­tive adjustment factor will be computed. Such ad­justment factor shall be computed annually to the fifth decimal place, and rounded to the fourth deci­mal place, by dividing the sum of the total taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the division by December 31 of such calendar year into a sum equal to one-fourth of the difference between the amount in the fund as of December 31 of such pre­ceding calendar year and 5 percent ofthe total taxa­ble payrolls of such year. Such adjustment factor will remain in effect in subsequent years until the balance in the Unemployment Compensation Trust Fund as of December 31 of the year immediately preceding the effective date of such contribution rate is less than 5 percent but more than 4 percent of the taxable payrolls for the year ending September 30 of the preceding calendar year as reported to the divi­sion by December 31 of that calendar year. In deter­mining if a positive or a negative adjustment factor shall be applicable to contributions payable for the calendar quarters in the years 1973, 1974, and 1975, the taxable payrolls for the year ending September 30, 1972, shall be reduced by 30 percent prior to any computation applicable to contributions payable for calendar quarters in 1973; the taxable payrolls for the year ending September 30, 1973, shall be re­duced by 20 percent prior to any computation appli­cable to contributions payable for calendar quarters in 197 4; and the taxable payrolls for the year ending

949

Ch. 443 UNEMPLOYMENT

September 30, 1974, shall be reduced by 10 percent prior to any computation applicable to contributions payable for calendar quarters in 1975.

d. The maximum contribution rate that can be assigned to any employer shall be 2.9 percent with respect to the calendar year 1963, 3.5 percent with respect to the calendar year 1964, 4 percent with respect to the calendar year 1965, and 4.5 percent with respect to the calendar year 1966 and subse­quent calendar years.

2. In the event of the transfer of employment records to an employing unit pursuant to paragraph (g) which, prior to such transfer, was an "employer," the division shall recompute a benefit ratio for the successor employer on the basis ofthe combined em­ployment records and reassign an appropriate con­tribution rate to such successor employer as of the beginning of the calendar quarter immediately fol­lowing the effective date of such transfer of employ­ment records.

(f) As used in subparagraph (b)2., the term "an­nual payroll" means the total amount of wages for insured employment paid by an employer during the 12-month period ending on September 30 of any cal­endar year with respect to which contributions have been paid on or before the date on which they be­came due and payable; and as used in subparagraph (b)l., the term "annual payroll" means the total amount of wages for insured employment paid by an employer during a period of 4 consecutive calendar quarters with respect to which contributions have been paid on or before the date on which they be­come due and payable. Provided, that where no con­tributions are payable for a calendar quarter, the term "annual payroll" as used in paragraph (b) shall include only wages paid during such quarter with respect to which contribution and wage reports have been submitted to the division on or before the date on which they became due.

(g)l. For the purposes of this subsection, two or more employers who are parties to a transfer of busi­ness or the subject of a merger, consolidation, or other form of reorganization, effecting a change in legal identity or form, shall be deemed to be a single employer and shall be considered as one employer with a continuous employment record if the division finds that the successor employer continues to carry on the employing enterprises of the predecessor em­ployer or employers and that the successor employer has paid all contributions required of and due from the predecessor employer or employers and has as­sumed liability for all contributions that may be­come due from the predecessor employer or employ­ers. As used in this paragraph, "contributions" means all indebtedness to the division, including, but not limited to, interest, penalty, collection fee, and service fee. A successor that is already an em­ployer has 30 days from the date of the official notifi­cation ofliability by succession to accept the transfer of the predecessor's or predecessors' employment record or records. If the predecessor or predecessors have unpaid contributions or outstanding quarterly reports, the successor has 30 days from the date of the notice listing the total amount due to pay the total amount with certified funds. After the total indebtedness has been paid, the employment record

F.S.1979

or records of the predecessor or predecessors will be transferred to the successor.

2. Whether or not there is a transfer of employ­ment record as contemplated in this paragraph, the predecessor shall in the event he again employs per­sons be treated as an employer without previous em­ployment record, or, if his coverage has been termi­nated as provided in s. 443.09, as a new employing unit.

3. The division may provide by regulation for partial transfer of experience rating where an em­ployer has transferred at any time an identifiable and segregable portion of his payrolls and business to a successor employing unit. As a condition of such partial transfer of experience, the regulations shall require an application by the successor, agreement by predecessor, and such evidence as the division may prescribe of the experience and payrolls attrib­utable to the transferred portion up to the date of transfer. The regulations shall provide that the suc­cessor employing unit, if not already an employer, shall become an employer as of the date of the trans­fer and that the experience of the transferred por­tion of the predecessor's account shall be removed from the experience-rating record of the predeces­sor, and for each calendar year following the date of the transfer of the employment record on the books of the division, the division shall compute the rate of contribution payable by the successor on the basis of his experience, if any, combined with the experience of the portion of the record transferred. The regula­tion may also provide what rates shall be payable by the predecessor and successor employers for the pe­riod between the date of the transfer of the employ­ment record of the transferred unit on the books of the division and the first day of the next calendar year.

(h) No reduction below the standard contribu­tion rate shall be allowed an employer under the provisions of this section unless:

1. All contributions, interest, and penalties in­curred by such employer with respect to wages paid by him in all previous calendar quarters, except the 4 calendar quarters immediately preceding the cal­endar quarter or calendar year for which the benefit ratio is computed, have been paid; and

2. The employer entitled thereto shall have at least one "annual payroll" as defined in paragraph (f) and unless such employer is eligible for additional credit under the provisions of the Federal Unem­ployment Tax Act; and in the event the Federal Un­employment Tax Act shall be revised, amended, or repealed, this section shall be applicable only to the extent that additional credit may be allowed against the payment of the tax imposed by said Federal Un­employment Tax Act.

(i) The division: 1. Shall promptly notify each employer of his

rate of contributions as determined for any calendar year pursuant to this section. Such determination shall become conclusive and binding upon the em­ployer unless within 15 days after the mailing of notice thereof to his last known address, or, in the absence of mailing, within 15 days after the delivery of such notice, the employer files an application for review and redetermination setting forth his reasons

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