Florida Workers Compensation - Statutes

FLORIDA WORKERS' COMPENSATION STATUTES
(CHAPTER 440)

Here is the official on-line link to the 2008 Florida Workers Compensation Statutes which govern how your workers compensation case is handled.

For your convenience, The Florida Workers' Compensation Law Firm of Kevin A. Moore has provided a copy the current statutes below. If you have any questions about the law as it relates to your Florida Workers' Comp case you can call Kevin directly or use our Contact Form and we will get back to you immediately.

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Specific Injury Related Statutes

There are two injuries specifically cited in the Statutes; Amputations and Back Injuries. The Law Firm of Kevin A. Moore has provided a summary of these for you in the following two paragraphs.

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Amputations
440.15 Compensation for disability.--Compensation for disability shall be paid to the employee, subject to the limits provided in s. 440.12(2), as follows: (1) PERMANENT TOTAL DISABILITY.-- (a) In case of total disability adjudged to be permanent, 662/3 percent of the average weekly wages shall be paid to the employee during the continuance of such total disability. No compensation shall be payable under this section if the employee is engaged in, or is physically capable of engaging in, at least sedentary employment.

(b) In the following cases, an injured employee is presumed to be permanently and totally disabled unless the employer or carrier establishes that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee's residence:

2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

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Back Injury
Back Injures are covered under one or more of these sections. 40.02 (1), 440.02 (19), 440.15, 440.49,

"Injury" means personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury. Damage to dentures, eyeglasses, prosthetic devices, and artificial limbs may be included in this definition only when the damage is shown to be part of, or in conjunction with, an accident. This damage must specifically occur as the result of an accident in the normal course of employment.

Surgical removal of an intervertebral disk or spinal fusion.

One or more back injuries or a disease process of the back resulting in disability over a total of 120 or more days, if substantiated by a doctor's opinion that there was a preexisting impairment to the claimant's back.

Any permanent physical impairment as defined in s. 440.15(3) which is a result of a prior industrial accident with the same employer or the employer's parent company, subsidiary, sister company, or affiliate located within the geographical boundaries of this state.
BACK

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Full Listing of the Florida Workers' Compensations Statutes (440)
440.xx {description}

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440.01  Short title.

440.015  Legislative intent.

440.02  Definitions.

440.021  Exemption of workers' compensation from chapter 120.

440.03  Application.

440.04  Waiver of exemption.

440.05  Election of exemption; revocation of election; notice; certification.

440.055  Notice requirements.

440.06  Failure to secure compensation; effect.

440.075  When corporate officer rejects chapter; effect.

440.077  When a corporate officer rejects chapter, effect.

440.09  Coverage.

440.091  Law enforcement officer, fire fighter, emergency medical technician, or paramedic; when acting within the course of employment.

440.092  Special requirements for compensability; deviation from employment; subsequent intervening accidents.

440.093  Mental and nervous injuries.

440.10  Liability for compensation.

440.101  Legislative intent; drug-free workplaces.

440.102  Drug-free workplace program requirements.

440.1025  Employer workplace safety program in ratesetting; program requirements; rulemaking.

440.103  Building permits; identification of minimum premium policy.

440.104  Competitive bidder; civil actions.

440.105  Prohibited activities; reports; penalties; limitations.

440.1051  Fraud reports; civil immunity; criminal penalties.

440.106  Civil remedies; administrative penalties.

440.107  Department powers to enforce employer compliance with coverage requirements.

440.108  Investigatory records relating to workers' compensation employer compliance; confidentiality.

440.11  Exclusiveness of liability.

440.12  Time for commencement and limits on weekly rate of compensation.

440.125  Medical records and reports; identifying information in employee medical bills; confidentiality.

440.13  Medical services and supplies; penalty for violations; limitations.

440.132  Investigatory records relating to workers' compensation managed care arrangements; confidentiality.

440.134  Workers' compensation managed care arrangement.

440.14  Determination of pay.

440.15  Compensation for disability.

440.151  Occupational diseases.

440.16  Compensation for death.

440.17  Guardian for minor or incompetent.

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

440.19  Time bars to filing petitions for benefits.

440.191  Employee Assistance and Ombudsman Office.

440.192  Procedure for resolving benefit disputes.

440.1926  Alternate dispute resolution; claim arbitration.

440.20  Time for payment of compensation and medical bills; penalties for late payment.

440.205  Coercion of employees.

440.207  Workers' compensation system guide.

440.21  Invalid agreements.

440.211  Authorization of collective bargaining agreement.

440.22  Assignment and exemption from claims of creditors.

440.23  Compensation a lien against assets.

440.24  Enforcement of compensation orders; penalties.

440.25  Procedures for mediation and hearings.

440.271  Appeal of order of judge of compensation claims.

440.2715  Access to courts through state video teleconferencing network.

440.28  Modification of orders.

440.29  Procedure before the judge of compensation claims.

440.30  Depositions.

440.31  Witness fees.

440.32  Cost in proceedings brought without reasonable ground.

440.33  Powers of judges of compensation claims.

440.34  Attorney's fees; costs.

440.345  Reporting of attorney's fees.

440.35  Record of injury or death.

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

440.381  Application for coverage; reporting payroll; payroll audit procedures; penalties.

440.385  Florida Self-Insurers Guaranty Association, Incorporated.

440.3851  Public records and public meetings exemptions.

440.386  Individual self-insurers' insolvency; conservation; liquidation.

440.39  Compensation for injuries when third persons are liable.

440.40  Compensation notice.

440.41  Substitution of carrier for employer.

440.42  Insurance policies; liability.

440.44  Workers' compensation; staff organization.

440.442  Code of Judicial Conduct.

440.45  Office of the Judges of Compensation Claims.

440.47  Travel expenses.

440.49  Limitation of liability for subsequent injury through Special Disability Trust Fund.

440.491  Reemployment of injured workers; rehabilitation.

440.50  Workers' Compensation Administration Trust Fund.

440.51  Expenses of administration.

440.515  Reports from self-insurers; confidentiality.

440.52  Registration of insurance carriers; notice of cancellation or expiration of policy; suspension or revocation of authority.

440.525  Examination and investigation of carriers and claims-handling entities.

440.53  Effect of unconstitutionality.

440.54  Violation of child labor law.

440.55  Proceedings against state.

440.572  Authorization for individual self-insurer to provide coverage.

440.585  Workers' compensation group self-insurance fund application disclosure.

440.59  Reporting requirements.

440.591  Administrative procedure; rulemaking authority.

440.593  Electronic reporting.

440.60  Application of laws.

440.01  Short title.--This chapter may be cited as the "Workers' Compensation Law."

History.--s. 1, ch. 17481, 1935; CGL 1936 Supp. 5966(1); s. 23, ch. 78-300; ss. 1, 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1.

440.015  Legislative intent.--It is the intent of the Legislature that the Workers' Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer. It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits. The workers' compensation system in Florida is based on a mutual renunciation of common-law rights and defenses by employers and employees alike. In addition, it is the intent of the Legislature that the facts in a workers' compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Additionally, the Legislature hereby declares that disputes concerning the facts in workers' compensation cases are not to be given a broad liberal construction in favor of the employee on the one hand or of the employer on the other hand, and the laws pertaining to workers' compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer. It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker. Therefore, an efficient and self-executing system must be created which is not an economic or administrative burden. The department, agency, the Office of Insurance Regulation, the Department of Education, and the Division of Administrative Hearings shall administer the Workers' Compensation Law in a manner which facilitates the self-execution of the system and the process of ensuring a prompt and cost-effective delivery of payments.

History.--s. 8, ch. 90-201; s. 6, ch. 91-1; s. 1, ch. 93-415; s. 10, ch. 2002-194; s. 466, ch. 2003-261.

440.02  Definitions.--When used in this chapter, unless the context clearly requires otherwise, the following terms shall have the following meanings:

(1)  "Accident" means only an unexpected or unusual event or result that happens suddenly. Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual's race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment. Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable, with respect to any compensation otherwise payable under this chapter. An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

(2)  "Adoption" or "adopted" means legal adoption prior to the time of the injury.

(3)  "Agency" means the Agency for Health Care Administration.

(4)  "Carrier" means any person or fund authorized under s. 440.38 to insure under this chapter and includes a self-insurer, and a commercial self-insurance fund authorized under s. 624.462.

(5)  "Casual" as used in this section refers only to employments for work that is anticipated to be completed in 10 working days or less, without regard to the number of persons employed, and at a total labor cost of less than $500.

(6)  "Child" includes a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged child born out of wedlock dependent upon the deceased, but does not include married children unless wholly dependent on the employee. "Grandchild" means a child as above defined of a child as above defined. "Brother" and "sister" include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers or married sisters unless wholly dependent on the employee. "Child," "grandchild," "brother," and "sister" include only persons who at the time of the death of the deceased employees are under 18 years of age, or under 22 years of age if a full-time student in an accredited educational institution.

(7)  "Compensation" means the money allowance payable to an employee or to his or her dependents as provided for in this chapter.

(8)  "Construction industry" means for-profit activities involving any building, clearing, filling, excavation, or substantial improvement in the size or use of any structure or the appearance of any land. However, "construction" does not mean a homeowner's act of construction or the result of a construction upon his or her own premises, provided such premises are not intended to be sold, resold, or leased by the owner within 1 year after the commencement of construction. The division may, by rule, establish standard industrial classification codes and definitions thereof which meet the criteria of the term "construction industry" as set forth in this section.

(9)  "Corporate officer" or "officer of a corporation" means any person who fills an office provided for in the corporate charter or articles of incorporation filed with the Division of Corporations of the Department of State or as permitted or required by chapter 607. As to persons engaged in the construction industry, the term "officer of a corporation" includes a member owning at least 10 percent of a limited liability company created and approved under chapter 608.

(10)  "Date of maximum medical improvement" means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.

(11)  "Death" as a basis for a right to compensation means only death resulting from an injury.

(12)  "Department" means the Department of Financial Services; the term does not include the Financial Services Commission or any office of the commission.

(13)  "Disability" means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.

(14)  "Division" means the Division of Workers' Compensation of the Department of Financial Services.

(15)(a)  "Employee" means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.

(b)  "Employee" includes any person who is an officer of a corporation and who performs services for remuneration for such corporation within this state, whether or not such services are continuous.

1.  Any officer of a corporation may elect to be exempt from this chapter by filing written notice of the election with the department as provided in s. 440.05.

2.  As to officers of a corporation who are engaged in the construction industry, no more than three officers of a corporation or of any group of affiliated corporations may elect to be exempt from this chapter by filing written notice of the election with the department as provided in s. 440.05. Officers must be shareholders, each owning at least 10 percent of the stock of such corporation and listed as an officer of such corporation with the Division of Corporations of the Department of State, in order to elect exemptions under this chapter. For purposes of this subparagraph, the term "affiliated" means and includes one or more corporations or entities, any one of which is a corporation engaged in the construction industry, under the same or substantially the same control of a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term "affiliated" includes, but is not limited to, the officers, directors, executives, shareholders active in management, employees, and agents of the affiliated corporation. The ownership by one business entity of a controlling interest in another business entity or a pooling of equipment or income among business entities shall be prima facie evidence that one business is affiliated with the other.

3.  An officer of a corporation who elects to be exempt from this chapter by filing a written notice of the election with the department as provided in s. 440.05 is not an employee.

Services are presumed to have been rendered to the corporation if the officer is compensated by other than dividends upon shares of stock of the corporation which the officer owns.

(c)  "Employee" includes:

1.  A sole proprietor or a partner who is not engaged in the construction industry, devotes full time to the proprietorship or partnership, and elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05.

2.  All persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by this chapter, or has otherwise secured the payment of compensation coverage as a subcontractor, consistent with s. 440.10, for work performed by or as a subcontractor.

3.  An independent contractor working or performing services in the construction industry.

4.  A sole proprietor who engages in the construction industry and a partner or partnership that is engaged in the construction industry.

(d)  "Employee" does not include:

1.  An independent contractor who is not engaged in the construction industry.

a.  In order to meet the definition of independent contractor, at least four of the following criteria must be met:

(I)  The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations;

(II)  The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal regulations;

(III)  The independent contractor receives compensation for services rendered or work performed and such compensation is paid to a business rather than to an individual;

(IV)  The independent contractor holds one or more bank accounts in the name of the business entity for purposes of paying business expenses or other expenses related to services rendered or work performed for compensation;

(V)  The independent contractor performs work or is able to perform work for any entity in addition to or besides the employer at his or her own election without the necessity of completing an employment application or process; or

(VI)  The independent contractor receives compensation for work or services rendered on a competitive-bid basis or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists.

b.  If four of the criteria listed in sub-subparagraph a. do not exist, an individual may still be presumed to be an independent contractor and not an employee based on full consideration of the nature of the individual situation with regard to satisfying any of the following conditions:

(I)  The independent contractor performs or agrees to perform specific services or work for a specific amount of money and controls the means of performing the services or work.

(II)  The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform.

(III)  The independent contractor is responsible for the satisfactory completion of the work or services that he or she performs or agrees to perform.

(IV)  The independent contractor receives compensation for work or services performed for a commission or on a per-job basis and not on any other basis.

(V)  The independent contractor may realize a profit or suffer a loss in connection with performing work or services.

(VI)  The independent contractor has continuing or recurring business liabilities or obligations.

(VII)  The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures.

c.  Notwithstanding anything to the contrary in this subparagraph, an individual claiming to be an independent contractor has the burden of proving that he or she is an independent contractor for purposes of this chapter.

2.  A real estate licensee, if that person agrees, in writing, to perform for remuneration solely by way of commission.

3.  Bands, orchestras, and musical and theatrical performers, including disk jockeys, performing in licensed premises as defined in chapter 562, if a written contract evidencing an independent contractor relationship is entered into before the commencement of such entertainment.

4.  An owner-operator of a motor vehicle who transports property under a written contract with a motor carrier which evidences a relationship by which the owner-operator assumes the responsibility of an employer for the performance of the contract, if the owner-operator is required to furnish motor vehicle equipment as identified in the written contract and the principal costs incidental to the performance of the contract, including, but not limited to, fuel and repairs, provided a motor carrier's advance of costs to the owner-operator when a written contract evidences the owner-operator's obligation to reimburse such advance shall be treated as the owner-operator furnishing such cost and the owner-operator is not paid by the hour or on some other time-measured basis.

5.  A person whose employment is both casual and not in the course of the trade, business, profession, or occupation of the employer.

6.  A volunteer, except a volunteer worker for the state or a county, municipality, or other governmental entity. A person who does not receive monetary remuneration for services is presumed to be a volunteer unless there is substantial evidence that a valuable consideration was intended by both employer and employee. For purposes of this chapter, the term "volunteer" includes, but is not limited to:

a.  Persons who serve in private nonprofit agencies and who receive no compensation other than expenses in an amount less than or equivalent to the standard mileage and per diem expenses provided to salaried employees in the same agency or, if such agency does not have salaried employees who receive mileage and per diem, then such volunteers who receive no compensation other than expenses in an amount less than or equivalent to the customary mileage and per diem paid to salaried workers in the community as determined by the department; and

b.  Volunteers participating in federal programs established under Pub. L. No. 93-113.

7.  Unless otherwise prohibited by this chapter, any officer of a corporation who elects to be exempt from this chapter. Such officer is not an employee for any reason under this chapter until the notice of revocation of election filed pursuant to s. 440.05 is effective.

8.  An officer of a corporation that is engaged in the construction industry who elects to be exempt from the provisions of this chapter, as otherwise permitted by this chapter. Such officer is not an employee for any reason until the notice of revocation of election filed pursuant to s. 440.05 is effective.

9.  An exercise rider who does not work for a single horse farm or breeder, and who is compensated for riding on a case-by-case basis, provided a written contract is entered into prior to the commencement of such activity which evidences that an employee/employer relationship does not exist.

10.  A taxicab, limousine, or other passenger vehicle-for-hire driver who operates said vehicles pursuant to a written agreement with a company which provides any dispatch, marketing, insurance, communications, or other services under which the driver and any fees or charges paid by the driver to the company for such services are not conditioned upon, or expressed as a proportion of, fare revenues.

11.  A person who performs services as a sports official for an entity sponsoring an interscholastic sports event or for a public entity or private, nonprofit organization that sponsors an amateur sports event. For purposes of this subparagraph, such a person is an independent contractor. For purposes of this subparagraph, the term "sports official" means any person who is a neutral participant in a sports event, including, but not limited to, umpires, referees, judges, linespersons, scorekeepers, or timekeepers. This subparagraph does not apply to any person employed by a district school board who serves as a sports official as required by the employing school board or who serves as a sports official as part of his or her responsibilities during normal school hours.

12.  Medicaid-enrolled clients under chapter 393 who are excluded from the definition of employment under s. 443.1216(4)(d) and served by Adult Day Training Services under the Home and Community-Based or the Family and Supported Living Medicaid Waiver program in a sheltered workshop setting licensed by the United States Department of Labor for the purpose of training and earning less than the federal hourly minimum wage.

13.  Medicaid-enrolled clients under chapter 393 who are excluded from the definition of employment under s. 443.1216(4)(d) and served by Adult Day Training Services under the Family and Supported Living Medicaid Waiver program in a sheltered workshop setting licensed by the United States Department of Labor for the purpose of training and earning less than the federal hourly minimum wage.

(16)(a)  "Employer" means the state and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustees of any person. "Employer" also includes employment agencies, employee leasing companies, and similar agents who provide employees to other persons. If the employer is a corporation, parties in actual control of the corporation, including, but not limited to, the president, officers who exercise broad corporate powers, directors, and all shareholders who directly or indirectly own a controlling interest in the corporation, are considered the employer for the purposes of ss. 440.105, 440.106, and 440.107.

(b)  A homeowner shall not be considered the employer of persons hired by the homeowner to carry out construction on the homeowner's own premises if those premises are not intended for immediate lease, sale, or resale.

(c)  Facilities serving individuals under subparagraph (15)(d)12. shall be considered agents of the Agency for Health Care Administration as it relates to providing Adult Day Training Services under the Home and Community-Based Medicaid Waiver program and not employers or third parties for the purpose of limiting or denying Medicaid benefits.

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

(b)  "Employment" includes:

1.  Employment by the state and all political subdivisions thereof and all public and quasi-public corporations therein, including officers elected at the polls.

2.  All private employments in which four or more employees are employed by the same employer or, with respect to the construction industry, all private employment in which one or more employees are employed by the same employer.

3.  Volunteer firefighters responding to or assisting with fire or medical emergencies whether or not the firefighters are on duty.

(c)  "Employment" does not include service performed by or as:

1.  Domestic servants in private homes.

2.  Agricultural labor performed on a farm in the employ of a bona fide farmer, or association of farmers, that employs 5 or fewer regular employees and that employs fewer than 12 other employees at one time for seasonal agricultural labor that is completed in less than 30 days, provided such seasonal employment does not exceed 45 days in the same calendar year. The term "farm" includes stock, dairy, poultry, fruit, fur-bearing animals, fish, and truck farms, ranches, nurseries, and orchards. The term "agricultural labor" includes field foremen, timekeepers, checkers, and other farm labor supervisory personnel.

3.  Professional athletes, such as professional boxers, wrestlers, baseball, football, basketball, hockey, polo, tennis, jai alai, and similar players, and motorsports teams competing in a motor racing event as defined in s. 549.08.

4.  Labor under a sentence of a court to perform community services as provided in s. 316.193.

5.  State prisoners or county inmates, except those performing services for private employers or those enumerated in s. 948.036(1).

(18)  "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 the 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 an employer's interests or of the employee's duties and obligations to the employer.

(19)  "Injury" means personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury. Damage to dentures, eyeglasses, prosthetic devices, and artificial limbs may be included in this definition only when the damage is shown to be part of, or in conjunction with, an accident. This damage must specifically occur as the result of an accident in the normal course of employment.

(20)  "Parent" includes stepparents and parents by adoption, parents-in-law, and any persons who for more than 3 years prior to the death of the deceased employee stood in the place of a parent to him or her and were dependent on the injured employee.

(21)  "Partner" means any person who is a member of a partnership that is formed by two or more persons to carry on as coowners of a business with the understanding that there will be a proportional sharing of the profits and losses between them. For the purposes of this chapter, a partner is a person who participates fully in the management of the partnership and who is personally liable for its debts.

(22)  "Permanent impairment" means any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury.

(23)  "Person" means individual, partnership, association, or corporation, including any public service corporation.

(24)  "Self-insurer" means:

(a)  Any employer who has secured payment of compensation pursuant to s. 440.38(1)(b) or (6) as an individual self-insurer;

(b)  Any employer who has secured payment of compensation through a group self-insurance fund under s. 624.4621;

(c)  Any group self-insurance fund established under s. 624.4621;

(d)  A public utility as defined in s. 364.02 or s. 366.02 that has assumed by contract the liabilities of contractors or subcontractors pursuant to s. 624.46225; or

(e)  Any local government self-insurance fund established under s. 624.4622.

(25)  "Sole proprietor" means a natural person who owns a form of business in which that person owns all the assets of the business and is solely liable for all the debts of the business.

(26)  "Spouse" includes only a spouse substantially dependent for financial support upon the decedent and living with the decedent at the time of the decedent's injury and death, or substantially dependent upon the decedent for financial support and living apart at that time for justifiable cause.

(27)  "Time of injury" means the time of the occurrence of the accident resulting in the injury.

(28)  "Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury and includes only the wages earned and reported for federal income tax purposes on the job where the employee is injured and any other concurrent employment where he or she is also subject to workers' compensation coverage and benefits, together with the reasonable value of housing furnished to the employee by the employer which is the permanent year-round residence of the employee, and gratuities to the extent reported to the employer in writing as taxable income received in the course of employment from others than the employer and employer contributions for health insurance for the employee or the employee's dependents. However, housing furnished to migrant workers shall be included in wages unless provided after the time of injury. In employment in which an employee receives consideration for housing, the reasonable value of such housing compensation shall be the actual cost to the employer or based upon the Fair Market Rent Survey promulgated pursuant to s. 8 of the Housing and Urban Development Act of 1974, whichever is less. However, if employer contributions for housing or health insurance are continued after the time of the injury, the contributions are not "wages" for the purpose of calculating an employee's average weekly wage.

(29)  "Weekly compensation rate" means and refers to the amount of compensation payable for a period of 7 consecutive calendar days, including any Saturdays, Sundays, holidays, and other nonworking days which fall within such period of 7 consecutive calendar days. When Saturdays, Sundays, holidays, or other nonworking days immediately follow the first 7 calendar days of disability or occur at the end of a period of disability as the last day or days of such period, such nonworking days constitute a part of the period of disability with respect to which compensation is payable.

(30)  "Construction design professional" means an architect, professional engineer, landscape architect, or surveyor and mapper, or any corporation, professional or general, that has a certificate to practice in the construction design field from the Department of Business and Professional Regulation.

(31)  "Individual self-insurer" means any employer who has secured payment of compensation pursuant to s. 440.38(1)(b) as an individual self-insurer.

(32)  "Domestic individual self-insurer" means an individual self-insurer:

(a)  Which is a corporation formed under the laws of this state;

(b)  Who is an individual who is a resident of this state or whose primary place of business is located in this state; or

(c)  Which is a partnership whose principals are residents of this state or whose primary place of business is located in this state.

(33)  "Foreign individual self-insurer" means an individual self-insurer:

(a)  Which is a corporation formed under the laws of any state, district, territory, or commonwealth of the United States other than this state;

(b)  Who is an individual who is not a resident of this state and whose primary place of business is not located in this state; or

(c)  Which is a partnership whose principals are not residents of this state and whose primary place of business is not located in this state.

(34)  "Insolvent member" means an individual self-insurer which is a member of the Florida Self-Insurers Guaranty Association, Incorporated, or which was a member and has withdrawn pursuant to s. 440.385(1)(b), and which has been found insolvent, as defined in subparagraph (35)(a)1., subparagraph (35)(a)2., or subparagraph (35)(a)3., by a court of competent jurisdiction in this or any other state, or meets the definition of subparagraph (35)(a)4.

(35)  "Insolvency" or "insolvent" means:

(a)  With respect to an individual self-insurer:

1.  That all assets of the individual self-insurer, if made immediately available, would not be sufficient to meet all the individual self-insurer's liabilities;

2.  That the individual self-insurer is unable to pay its debts as they become due in the usual course of business;

3.  That the individual self-insurer has substantially ceased or suspended the payment of compensation to its employees as required in this chapter; or

4.  That the individual self-insurer has sought protection under the United States Bankruptcy Code or has been brought under the jurisdiction of a court of bankruptcy as a debtor pursuant to the United States Bankruptcy Code.

(b)  With respect to an employee claiming insolvency pursuant to s. 440.25(5), a person is insolvent who:

1.  Has ceased to pay his or her debts in the ordinary course of business and cannot pay his or her debts as they become due; or

2.  Has been adjudicated insolvent pursuant to the federal bankruptcy law.

(36)  "Arising out of" pertains to occupational causation. An accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death.

(37)  "Soft-tissue injury" means an injury that produces damage to the soft tissues, rather than to the skeletal tissues or soft organs.

(38)  "Insurer" means a group self-insurers' fund authorized by s. 624.4621, an individual self-insurer authorized by s. 440.38, a commercial self-insurance fund authorized by s. 624.462, an assessable mutual insurer authorized by s. 628.6011, and an insurer licensed to write workers' compensation and employer's liability insurance in this state. The term "carrier," as used in this chapter, means an insurer as defined in this subsection.

(39)  "Statement," for the purposes of ss. 440.105 and 440.106, shall include the exact fraud statement language in s. 440.105(7). This requirement includes, but is not limited to, any notice, representation, statement, proof of injury, bill for services, diagnosis, prescription, hospital or doctor record, X ray, test result, or other evidence of loss, injury, or expense.

(40)  "Specificity" means information on the petition for benefits sufficient to put the employer or carrier on notice of the exact statutory classification and outstanding time period of benefits being requested and includes a detailed explanation of any benefits received that should be increased, decreased, changed, or otherwise modified. If the petition is for medical benefits, the information shall include specific details as to why such benefits are being requested, why such benefits are medically necessary, and why current treatment, if any, is not sufficient. Any petition requesting alternate or other medical care, including, but not limited to, petitions requesting psychiatric or psychological treatment, must specifically identify the physician, as defined in s. 440.13(1), who is recommending such treatment. A copy of a report from such physician making the recommendation for alternate or other medical care shall also be attached to the petition. A judge of compensation claims shall not order such treatment if a physician is not recommending such treatment.

(41)  "Office of Insurance Regulation" means the Office of Insurance Regulation of the Financial Services Commission.

History.--s. 2, ch. 17481, 1935; s. 1, ch. 17482, 1935; s. 1, ch. 17483, 1935; CGL 1936 Supp. 5966(2); s. 1, ch. 18413, 1937; s. 1, ch. 20672, 1941; s. 1, ch. 28238, 1953; s. 1, ch. 29778, 1955; s. 1, ch. 57-155; s. 1, ch. 57-225; s. 1, ch. 59-100; s. 1, ch. 65-184; s. 1, ch. 67-554; ss. 17, 35, ch. 69-106; s. 1, ch. 71-80; s. 162, ch. 71-377; s. 1, ch. 72-243; s. 1, ch. 73-127; s. 1, ch. 73-283; s. 116, ch. 73-333; s. 1, ch. 74-46; s. 1, ch. 74-124; s. 1, ch. 74-197; s. 1, ch. 75-209; s. 1, ch. 77-174; s. 1, ch. 77-290; ss. 1, 23, ch. 78-300; s. 15, ch. 79-7; ss. 2, 124, ch. 79-40; s. 21, ch. 79-312; s. 1, ch. 80-236; s. 3, ch. 81-119; ss. 1, 20, ch. 83-305; s. 1, ch. 84-267; s. 6, ch. 86-171; s. 1, ch. 87-330; s. 1, ch. 88-203; s. 2, ch. 89-61; ss. 3, 43, ch. 89-289; ss. 9, 56, ch. 90-201; ss. 7, 52, ch. 91-1; s. 1, ch. 91-2; s. 2, ch. 93-415; s. 117, ch. 94-119; s. 59, ch. 94-218; s. 97, ch. 97-103; s. 1, ch. 98-174; s. 89, ch. 2000-153; s. 7, ch. 2001-91; s. 11, ch. 2002-194; s. 5, ch. 2002-236; s. 54, ch. 2003-164; s. 467, ch. 2003-261; ss. 1, 2, ch. 2003-412; s. 2, ch. 2003-422; s. 59, ch. 2004-5; s. 32, ch. 2004-373; s. 21, ch. 2005-60; s. 12, ch. 2005-71; s. 1, ch. 2005-78; s. 4, ch. 2006-15.

440.021  Exemption of workers' compensation from chapter 120.--Workers' compensation adjudications by judges of compensation claims are exempt from chapter 120, and no judge of compensation claims shall be considered an agency or a part thereof. Communications of the result of investigations by the department pursuant to s. 440.185(4) are exempt from chapter 120. In all instances in which the department institutes action to collect a penalty or interest which may be due pursuant to this chapter, the penalty or interest shall be assessed without hearing, and the party against which such penalty or interest is assessed shall be given written notice of such assessment and shall have the right to protest within 20 days of such notice. Upon receipt of a timely notice of protest and after such investigation as may be necessary, the department shall, if it agrees with such protest, notify the protesting party that the assessment has been revoked. If the department does not agree with the protest, it shall refer the matter to the judge of compensation claims for determination pursuant to s. 440.25(2)-(5). Such action of the department is exempt from the provisions of chapter 120.

History.--s. 15, ch. 77-290; s. 23, ch. 78-300; ss. 3, 124, ch. 79-40; ss. 6, 21, ch. 79-312; s. 4, ch. 81-119; s. 2, ch. 83-305; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 2, ch. 91-46; s. 90, ch. 2000-153; s. 12, ch. 2002-194.

440.03  Application.--Every employer and employee as defined in s. 440.02 shall be bound by the provisions of this chapter.

History.--s. 3, ch. 17481, 1935; CGL 1936 Supp. 5966(3); s. 1, ch. 70-148; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1.

440.04  Waiver of exemption.--

(1)  Every employer having in her or his employment any employee not included in the definition "employee" or excluded or exempted from the operation of this chapter may at any time waive such exclusion or exemption and accept the provisions of this chapter by giving notice thereof as provided in s. 440.05, and by so doing be as fully protected and covered by the provisions of this chapter as if such exclusion or exemption had not been contained herein.

(2)  When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of "employee" or whose services are not included in the definition of "employment" or who is otherwise excluded or exempted from the operation of this chapter, the acceptance of such policy or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of s. 440.05 with respect to notice.

(3)  A corporate officer who has exempted herself or himself by proper notice from the operation of this chapter may at any time revoke such exemption and thereby accept the provisions of this chapter by giving notice as provided in s. 440.05.

History.--s. 4, ch. 17481, 1935; CGL 1936 Supp. 5966(4); s. 2, ch. 18413, 1937; s. 2, ch. 29778, 1955; s. 4, ch. 70-148; s. 2, ch. 74-197; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 98, ch. 97-103.

440.05  Election of exemption; revocation of election; notice; certification.--

(1)  Each corporate officer who elects not to accept the provisions of this chapter or who, after electing such exemption, revokes that exemption shall mail to the department in Tallahassee notice to such effect in accordance with a form to be prescribed by the department.

(2)  Each sole proprietor or partner who elects to be included in the definition of "employee" or who, after such election, revokes that election must mail to the department in Tallahassee notice to such effect, in accordance with a form to be prescribed by the department.

(3)  Each officer of a corporation who is engaged in the construction industry and who elects an exemption from this chapter or who, after electing such exemption, revokes that exemption, must mail a written notice to such effect to the department on a form prescribed by the department. The notice of election to be exempt from the provisions of this chapter must be notarized and under oath. The notice of election to be exempt which is submitted to the department by the officer of a corporation who is allowed to claim an exemption as provided by this chapter must list the name, federal tax identification number, social security number, all certified or registered licenses issued pursuant to chapter 489 held by the person seeking the exemption, a copy of relevant documentation as to employment status filed with the Internal Revenue Service as specified by the department, a copy of the relevant occupational license in the primary jurisdiction of the business, and the registration number of the corporation filed with the Division of Corporations of the Department of State along with a copy of the stock certificate evidencing the required ownership under this chapter. The notice of election to be exempt must identify each corporation that employs the person electing the exemption and must list the social security number or federal tax identification number of each such employer and the additional documentation required by this section. In addition, the notice of election to be exempt must provide that the officer electing an exemption is not entitled to benefits under this chapter, must provide that the election does not exceed exemption limits for officers provided in s. 440.02, and must certify that any employees of the corporation whose officer elects an exemption are covered by workers' compensation insurance. Upon receipt of the notice of the election to be exempt, receipt of all application fees, and a determination by the department that the notice meets the requirements of this subsection, the department shall issue a certification of the election to the officer, unless the department determines that the information contained in the notice is invalid. The department shall revoke a certificate of election to be exempt from coverage upon a determination by the department that the person does not meet the requirements for exemption or that the information contained in the notice of election to be exempt is invalid. The certificate of election must list the name of the corporation listed in the request for exemption. A new certificate of election must be obtained each time the person is employed by a new or different corporation that is not listed on the certificate of election. A copy of the certificate of election must be sent to each workers' compensation carrier identified in the request for exemption. Upon filing a notice of revocation of election, an officer who is a subcontractor or an officer of a corporate subcontractor must notify her or his contractor. Upon revocation of a certificate of election of exemption by the department, the department shall notify the workers' compensation carriers identified in the request for exemption.

(4)  The notice of election to be exempt from the provisions of this chapter must contain a notice that clearly states in substance the following: "Any person who, knowingly and with intent to injure, defraud, or deceive the department or any employer or employee, insurance company, or any other person, files a notice of election to be exempt containing any false or misleading information is guilty of a felony of the third degree." Each person filing a notice of election to be exempt shall personally sign the notice and attest that he or she has reviewed, understands, and acknowledges the foregoing notice.

(5)  A notice given under subsection (1), subsection (2), or subsection (3) shall become effective when issued by the department or 30 days after an application for an exemption is received by the department, whichever occurs first. However, if an accident or occupational disease occurs less than 30 days after the effective date of the insurance policy under which the payment of compensation is secured or the date the employer qualified as a self-insurer, such notice is effective as of 12:01 a.m. of the day following the date it is mailed to the department in Tallahassee.

(6)  A construction industry certificate of election to be exempt which is issued in accordance with this section shall be valid for 2 years after the effective date stated thereon. Both the effective date and the expiration date must be listed on the face of the certificate by the department. The construction industry certificate must expire at midnight, 2 years from its issue date, as noted on the face of the exemption certificate. A construction industry certificate of election to be exempt may be revoked before its expiration by the officer for whom it was issued or by the department for the reasons stated in this section. At least 60 days prior to the expiration date of a construction industry certificate of exemption issued after December 1, 1998, the department shall send notice of the expiration date and an application for renewal to the certificateholder at the address on the certificate.

(7)  Any contractor responsible for compensation under s. 440.10 may register in writing with the workers' compensation carrier for any subcontractor and shall thereafter be entitled to receive written notice from the carrier of any cancellation or nonrenewal of the policy.

(8)(a)  The department must assess a fee of $50 with each request for a construction industry certificate of election to be exempt or renewal of election to be exempt under this section.

(b)  The funds collected by the department shall be used to administer this section, to audit the businesses that pay the fee for compliance with any requirements of this chapter, and to enforce compliance with the provisions of this chapter.

(9)  The department may by rule prescribe forms and procedures for filing an election of exemption, revocation of election to be exempt, and notice of election of coverage for all employers and require specified forms to be submitted by all employers in filing for the election of exemption. The department may by rule prescribe forms and procedures for issuing a certificate of the election of exemption.

(10)  Each officer of a corporation who is actively engaged in the construction industry and who elects an exemption from this chapter shall maintain business records as specified by the department by rule, which rules must include the provision that any corporation with exempt officers engaged in the construction industry must maintain written statements of those exempted persons affirmatively acknowledging each such individual's exempt status.

(11)  Any corporate officer permitted by this chapter to claim an exemption must be listed on the records of this state's Secretary of State, Division of Corporations, as a corporate officer. The department shall issue a stop-work order under s. 440.107(7) to any corporation who employs a person who claims to be exempt as a corporate officer but who fails or refuses to produce the documents required under this subsection to the department within 3 business days after the request is made.

(12)  Certificates of election to be exempt issued under subsection (3) shall apply only to the corporate officer named on the notice of election to be exempt and apply only within the scope of the business or trade listed on the notice of election to be exempt.

(13)  Notices of election to be exempt and certificates of election to be exempt shall be subject to revocation if, at any time after the filing of the notice or the issuance of the certificate, the person named on the notice or certificate no longer meets the requirements of this section for issuance of a certificate. The department shall revoke a certificate at any time for failure of the person named on the certificate to meet the requirements of this section.

(14)  An officer of a corporation who elects exemption from this chapter by filing a certificate of election under this section may not recover benefits or compensation under this chapter. For purposes of determining the appropriate premium for workers' compensation coverage, carriers may not consider any officer of a corporation who validly meets the requirements of this section to be an employee.

(15)  Any corporate officer who is an affiliated person of a person who is delinquent in paying a stop-work order and penalty assessment order issued pursuant to s. 440.107, or owed pursuant to a court order, is ineligible for an election of exemption. The stop-work order and penalty assessment shall be in effect against any such affiliated person. As used in this subsection, the term "affiliated person" means:

(a)  The spouse of such other person;

(b)  Any person who directly or indirectly owns or controls, or holds with the power to vote, 10 percent or more of the outstanding voting securities of such other person;

(c)  Any person who directly or indirectly owns 10 percent or more of the outstanding voting securities that are directly or indirectly owned, controlled, or held with the power to vote by such other person;

(d)  Any person or group of persons who directly or indirectly control, are controlled by, or are under common control with such other person;

(e)  Any person who directly or indirectly acquires all or substantially all of the other assets of such other person;

(f)  Any officer, director, trustee, partner, owner, manager, joint venturer, or employee of such other person or a person performing duties similar to persons in such positions; or

(g)  Any person who has an officer, director, trustee, partner, or joint venturer in common with such person.

History.--s. 5, ch. 17481, 1935; CGL 1936 Supp. 5966(5); ss. 17, 35, ch. 69-106; s. 2, ch. 70-148; s. 1, ch. 70-439; s. 3, ch. 74-197; s. 2, ch. 75-209; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 2, ch. 91-2; s. 3, ch. 93-415; s. 99, ch. 97-103; s. 1, ch. 98-125; s. 2, ch. 98-174; s. 40, ch. 99-240; s. 13, ch. 2002-194; s. 6, ch. 2002-236; s. 468, ch. 2003-261; s. 3, ch. 2003-412; s. 74, ch. 2005-2; s. 52, ch. 2006-1.

440.055  Notice requirements.--An employer who employs fewer than four employees, who is permitted by law to elect not to secure payment of compensation under this chapter, and who elects not to do so shall post clear written notice in a conspicuous location at each worksite directed to all employees and other persons performing services at the worksite of their lack of entitlement to benefits under this chapter.

History.--s. 10, ch. 90-201; s. 8, ch. 91-1; s. 4, ch. 93-415.

440.06  Failure to secure compensation; effect.--Every employer who fails to secure the payment of compensation, as provided in s. 440.10, by failing to meet the requirements of s. 440.38 may not, in any suit brought against him or her by an employee subject to this chapter to recover damages for injury or death, defend such a suit on the grounds that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his or her employment, or that the injury was due to the comparative negligence of the employee.

History.--s. 6, ch. 17481, 1935; CGL 1936 Supp. 5966(6); s. 5, ch. 70-148; s. 23, ch. 78-300; ss. 4, 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 100, ch. 97-103; s. 4, ch. 2003-412.

440.075  When corporate officer rejects chapter; effect.--Every corporate officer who elects to reject this chapter shall, in any action to recover damages for injury or death brought against the corporate employer, proceed as at common law, and the employer in such suit may avail itself of all defenses that exist at common law.

History.--s. 4, ch. 74-197; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1.

440.077  When a corporate officer rejects chapter, effect.--An officer of a corporation who is permitted to elect an exemption under this chapter and who elects to be exempt from the provisions of this chapter may not recover benefits under this chapter.

History.--s. 3, ch. 91-2; s. 5, ch. 2003-412.

440.09  Coverage.--

(1)  The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment. The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. For purposes of this section, "major contributing cause" means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought. In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. For purposes of this section, "objective relevant medical findings" are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing. Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing. Major contributing cause must be demonstrated by medical evidence only.

(a)  This chapter does not require any compensation or benefits for any subsequent injury the employee suffers as a result of an original injury arising out of and in the course of employment unless the original injury is the major contributing cause of the subsequent injury. Major contributing cause must be demonstrated by medical evidence only.

(b)  If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined and thereafter remains the major contributing cause of the disability or need for treatment. Major contributing cause must be demonstrated by medical evidence only.

(c)  Death resulting from an operation by a surgeon furnished by the employer for the cure of hernia as required in s. 440.15(6) [F.S. 1981] shall for the purpose of this chapter be considered to be a death resulting from the accident causing the hernia.

(d)  If an accident happens while the employee is employed elsewhere than in this state, which would entitle the employee or his or her dependents to compensation if it had happened in this state, the employee or his or her dependents are entitled to compensation if the contract of employment was made in this state, or the employment was principally localized in this state. However, if an employee receives compensation or damages under the laws of any other state, the total compensation for the injury may not be greater than is provided in this chapter.

(2)  Benefits are not payable in respect of the disability or death of any employee covered by the Federal Employer's Liability Act, the Longshoremen's and Harbor Worker's Compensation Act, the Defense Base Act, or the Jones Act.

(3)  Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician; or by the willful intention of the employee to injure or kill himself, herself, or another.

(4)(a)  An employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims, administrative law judge, court, or jury convened in this state determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 or any criminal act for the purpose of securing workers' compensation benefits. For purposes of this section, the term "intentional" shall include, but is not limited to, pleas of guilty or nolo contendere in criminal matters. This section shall apply to accidents, regardless of the date of the accident. For injuries occurring prior to January 1, 1994, this section shall pertain to the acts of the employee described in s. 440.105 or criminal activities occurring subsequent to January 1, 1994.

(b)  A judge of compensation claims, administrative law judge, or court of this state shall take judicial notice of a finding of insurance fraud by a court of competent jurisdiction and terminate or otherwise disallow benefits.

(c)  Upon the denial of benefits in accordance with this section, a judge of compensation claims shall have the jurisdiction to order any benefits payable to the employee to be paid into the court registry or an escrow account during the pendency of an appeal or until such time as the time in which to file an appeal has expired.

(5)  If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee's knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent.

(6)  Except as provided in this chapter, a construction design professional who is retained to perform professional services on a construction project, or an employee of a construction design professional in the performance of professional services on the site of the construction project, is not liable for any injuries resulting from the employer's failure to comply with safety standards on the construction project for which compensation is recoverable under this chapter, unless responsibility for safety practices is specifically assumed by contracts. The immunity provided by this subsection to a construction design professional does not apply to the negligent preparation of design plans or specifications.

(7)(a)  To ensure that the workplace is a drug-free environment and to deter the use of drugs and alcohol at the workplace, if the employer has reason to suspect that the injury was occasioned primarily by the intoxication of the employee or by the use of any drug, as defined in this chapter, which affected the employee to the extent that the employee's normal faculties were impaired, and the employer has not implemented a drug-free workplace pursuant to ss. 440.101 and 440.102, the employer may require the employee to submit to a test for the presence of any or all drugs or alcohol in his or her system.

(b)  If the employee has, at the time of the injury, a blood alcohol level equal to or greater than the level specified in s. 316.193, or if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee. If the employer has implemented a drug-free workplace, this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury. In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury. Percent by weight of alcohol in the blood must be based upon grams of alcohol per 100 milliliters of blood. If the results are positive, the testing facility must maintain the specimen for a minimum of 90 days. Blood serum may be used for testing purposes under this chapter; however, if this test is used, the presumptions under this section do not arise unless the blood alcohol level is proved to be medically and scientifically equivalent to or greater than the comparable blood alcohol level that would have been obtained if the test were based on percent by weight of alcohol in the blood. However, if, before the accident, the employer had actual knowledge of and expressly acquiesced in the employee's presence at the workplace while under the influence of such alcohol or drug, the presumptions specified in this subsection do not apply.

(c)  If the injured worker refuses to submit to a drug test, it shall be presumed in the absence of clear and convincing evidence to the contrary that the injury was occasioned primarily by the influence of drugs.

(d)  The agency shall provide by rule for the authorization and regulation of drug-testing policies, procedures, and methods. Testing of injured employees shall not commence until such rules are adopted.

(e)  As a part of rebutting any presumptions under paragraph (b), the injured worker must prove the actual quantitative amounts of the drug or its metabolites as measured on the initial and confirmation post-accident drug tests of the injured worker's urine sample and provide additional evidence regarding the absence of drug influence other than the worker's denial of being under the influence of a drug. No drug test conducted on a urine sample shall be rejected as to its results or the presumption imposed under paragraph (b) on the basis of the urine being bodily fluid tested.

(8)  If, by operation of s. 440.04, benefits become payable to a professional athlete under this chapter, such benefits shall be reduced or setoff in the total amount of injury benefits or wages payable during the period of disability by the employer under a collective bargaining agreement or contract for hire.

History.--s. 9, ch. 17481, 1935; CGL 1936 Supp. 5966(9); s. 3, ch. 18413, 1937; s. 1, ch. 28236, 1953; s. 1, ch. 57-293; s. 2, ch. 73-127; s. 5, ch. 74-197; s. 3, ch. 75-209; s. 2, ch. 77-290; s. 23, ch. 78-300; s. 124, ch. 79-40; s. 21, ch. 79-312; s. 7, ch. 86-171; ss. 4, 5, 6, 43, ch. 89-289; ss. 11, 56, ch. 90-201; ss. 9, 52, ch. 91-1; ss. 5, 55, ch. 93-415; s. 101, ch. 97-103; s. 1, ch. 98-161; s. 3, ch. 98-174; s. 8, ch. 2001-91; s. 14, ch. 2002-194; s. 469, ch. 2003-261; s. 6, ch. 2003-412.

440.091  Law enforcement officer, firefighter, emergency medical technician, or paramedic; when acting within the course of employment.--

(1)  If an employee:

(a)  Is elected, appointed, or employed full time by a municipality, the state, or any political subdivision and is vested with authority to bear arms and make arrests and the employee's primary responsibility is the prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state;

(b)  Was discharging that primary responsibility within the state in a place and under circumstances reasonably consistent with that primary responsibility; and

(c)  Was not engaged in services for which he or she was paid by a private employer, and the employee and his or her public employer had no agreement providing for workers' compensation coverage for that private employment;

the employee is considered to have been acting within the course of employment. The term "employee" as used in this subsection includes all certified supervisory and command personnel whose duties include, in whole or in part, responsibilities for the supervision, training, guidance, and management of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.

(2)  If a firefighter as defined by s. 112.191(1)(b) is engaged in extinguishing a fire, or protecting and saving life or property due to a fire in this state in an emergency, and such activities would be considered to be within the course of his or her employment as a firefighter and covered by the employer's workers' compensation coverage except for the fact that the firefighter was off duty or that the location of the fire was outside the employer's jurisdiction or area of responsibility, such activities are considered to be within the course of employment. This subsection does not apply if the firefighter is performing activities for which he or she is paid by another employer or contractor.

(3)  If an emergency medical technician or paramedic is appointed or employed full time by a municipality, the state, or any political subdivision, is certified under chapter 401, is providing basic life support or advanced life support services, as defined in s. 401.23, in an emergency situation in this state, and such activities would be considered to be within the course of his or her employment as an emergency medical technician or paramedic and covered by the employer's workers' compensation coverage except for the fact that the location of the emergency was outside of the employer's jurisdiction or area of responsibility, such activities are considered to be within the course of employment. The provisions of this subsection do not apply if the emergency medical technician or paramedic is performing activities for which he or she is paid by another employer or contractor.

History.--s. 1, ch. 82-146; s. 43, ch. 89-289; s. 56, ch. 90-201; s. 52, ch. 91-1; s. 102, ch. 97-103; s. 1, ch. 2002-236.

440.092  Special requirements for compensability; deviation from employment; subsequent intervening accidents.--

(1)  RECREATIONAL AND SOCIAL ACTIVITIES.--Recreational or social activities are not compensable unless such recreational or social activities are an expressly required incident of employment and produce a substantial direct benefit to the employer beyond improvement in employee health and morale that is common to all kinds of recreation and social life.

(2)  GOING OR COMING.--An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer. For the purposes of this subsection and not withstanding any other provisions of law to the contrary, an injury to a law enforcement officer as defined in s. 943.10(1), during the officer's work period or while going to or coming from work in an official law enforcement vehicle, shall be presumed to be an injury arising out of and in the course of employment unless the injury occurred during a distinct deviation for a nonessential personal errand. If, however, the employer's policy or the collective bargaining agreement that applies to the officer permits such deviations for nonessential errands, the injury shall be presumed to arise out of and in the course of employment.

(3)  DEVIATION FROM EMPLOYMENT.--An employee who is injured while deviating from the course of employment, including leaving the employer's premises, is not eligible for benefits unless such deviation is expressly approved by the employer, or unless such deviation or act is in response to an emergency and designed to save life or property.

(4)  TRAVELING EMPLOYEES.--An employee who is required to travel in connection with his or her employment who suffers an injury while in travel status shall be eligible for benefits under this chapter only if the injury arises out of and in the course of employment while he or she is actively engaged in the duties of employment. This subsection applies to travel necessarily incident to performance of the employee's job responsibility but does not include travel to and from work as provided in subsection (2).

(5)  SUBSEQUENT INTERVENING ACCIDENTS.--Injuries caused by a subsequent intervening accident arising from an outside agency which are the direct and natural consequence of the original injury are not compensable unless suffered while traveling to or from a health care provider for the purpose of receiving remedial treatment for the compensable injury.

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