CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1997 WL 694960
...Weiss and Esther Zapata Ruderman of Conroy, Simberg & Ganon, P.A., West Palm Beach, for Appellees. BENTON, Judge. In the order under review, the judge of compensation claims determined that she lacked jurisdiction, by virtue of a collective bargaining agreement "in conformity with the dictates of section 440.211, Florida Statutes ([Supp.] 1994) for industrial accidents......
...In a general savings clause apparently intended to assure equivalent benefits in all cases, the collective bargaining agreement also provided: In any instance of conflict, the provisions of this Agreement shall take precedence over provisions of the Law, so far as permitted by the provisions of Section 440.211 of Chapter 440 of the Florida Statutes....
...The collective bargaining agreement states its intention to create a comprehensive alternative dispute resolution system to displace "pretrial and hearing and review processes contained in Sections
440.25 and
440.271 of the Florida Statutes," as contemplated by section
440.211, Florida Statutes (1995), which provides: (1) Subject to the limitation stated in subsection (2), a provision that is mutually agreed upon in any collective bargaining agreement filed with the division between an individually self-ins...
...*552 (2) Nothing in this section shall allow any agreement that diminishes an employee's entitlement to benefits as otherwise set forth in this chapter. Any such agreement in violation of this provision shall be null and void. Mr. Gassner contends on appeal, as below, that section 440.211, Florida Statutes (1995), does not defeat the jurisdiction of the judge of compensation claims because the collective bargaining agreement "diminishes an employee's entitlement to benefits." § 440.211(2), Fla....
...The agreement precludes any opportunity to modify the final award of an arbitrator, while section
440.28, Florida Statutes, contemplates modifying final awards of judges of compensation claims in appropriate cases. This list of what purport to be diminished benefits reveals significant confusion about the distinction section
440.211 draws between benefits and (alternative) procedures....
...By definition, at least some of the procedures in a workers' compensation alternative dispute resolution system must differ from the dispute resolution procedures set out in chapter 440, Florida Statutes (1995). Identical procedures do not constitute an alternative. When, as section 440.211 contemplates, a collective bargaining agreement establishes an alternative dispute resolution system, new means and methods are brought into existence to deliver the same [3] statutory benefits. These procedural differences do not run afoul of section 440.211(2), Florida Statutes (1995)....
...ceipt of benefits that chapter 440 *553 does not impose, the agreement also creates procedural opportunities for the provision of benefits that chapter 440 does not afford. [4] As long as the benefits themselves are undiminished, the requirements of section 440.211, Florida Statutes (1995), are met....
...While we reject this argumentwe approve the determination of the judge of compensation claims that this agreement covers attorney's fees disputesit is clear that the purview of some alternative dispute resolution systems may be limited by design to discrete problems, including those listed in section 440.211(1)(b)-(e), Florida Statutes (1995)....
...ney's fee that it is alleged an employer is required to pay an employee's attorney. We also approve the parallel ruling as to costs implicit in the order dismissing the petition for benefits for lack of jurisdiction. Finally, appellant contends that section 440.211, Florida Statutes (1995), is unconstitutional to the extent it allows the collective bargaining agreement to establish an alternative dispute resolution system that diminishes procedural protections chapter 440 would otherwise afford a claimant....
...ished by this Agreement."). [2] In his reply brief, appellant concedes "competent substantial evidence to support the JCC's finding that the CBA agreement was properly signed and filed," abandoning a contrary claim advanced in the initial brief. [3] Section 440.211, Florida Statutes (1995), does not preclude employers' agreeing to increased benefits for injured workers....
...[4] To the extent attorney's fees questions are relegated to alternative dispute resolution procedures in which judges of compensation play no part, the requirement in section
440.34, Florida Statutes (1995), that judges of compensation claims award all fees is necessarily obviated. [5] Read literally in isolation, section
440.211(2), Florida Statutes (1995), seems to declare certain collective bargaining agreements null and void....
...In construing the statute as a whole as defining jurisdictional limits for judges of compensation claims and defining the sphere within which alternative dispute resolution procedures operate, we obviate the need to address any Supremacy Clause question to which section 440.211, Florida Statutes (1995), considered in conjunction with the National Labor Relations Act, might otherwise give rise....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2002 WL 1401899
...The judge of compensation claims (JCC) concluded that she lacked jurisdiction over the petition, because a collective bargaining agreement (CBA) between Ariston's union and his employer, appellee Allied Building Crafts, created an alternative dispute resolution (ADR) system, which, pursuant to section 440.211, Florida Statutes (1997), [1] replaces the provisions afforded to appellee's employees under chapter 440, Florida Statutes....
...orum, but his union may not prospectively waive that right for him." Air Line Pilots Ass'n,
199 F.3d at 484. This principle does not apply to the situation at bar, in that the legislature both established the workers' compensation system and enacted section
440.211 expressly approving the development by employers and unions of alternative systems of resolving compensation disputes....
...efits. Next, Ariston complains that the CBA is null and void because, unlike section
440.13(5), Florida Statutes (1997), it makes no provision for an independent medical examination (IME), and it thereby diminishes his right to benefits, contrary to section
440.211(2), which states: "Nothing in this section shall allow any agreement that diminishes an employee's entitlement to benefits as otherwise set forth in this chapter....
..., she dismissed the petition. We agree that the JCC reached the correct result, but for the wrong reason. As we explained in Ulico Casualty Co. v. Fernandez,
825 So.2d 988 (Fla. 1st DCA 2002), a CBA which sufficiently complies with the provisions of section
440.211(1)(b), Florida Statutes, [2] does not diminish an employee's chapter 440 benefits by not including as well "a limited list of physicians to conduct independent medical examinations," as provided in section
440.211(c). In Fernandez, we concluded that although the CBA made no explicit provision for an IME, its terms sufficiently complied with the requirements of section
440.211(1)(b), and, as a consequence, it supplanted or replaced, without diminishing, the employee's entitlement to chapter 440 benefits....
...We have considered appellant's remaining issues, and we affirm as to all. As for the argument that the JCC erred in refusing, on jurisdictional grounds, to determine whether 29 U.S.C. § 411(a)(4) preempts the collective bargaining procedure authorized by section 440.211, Ariston relies on FCCI Mutual Insurance Co....
...A JCC clearly does not have jurisdiction to declare a state statute unconstitutional or violative of federal law. Hensley v. Punta Gorda,
686 So.2d 724 (Fla. 1st DCA 1997). Finally, the constitutional arguments raised before us as to the validity of section
440.211 have previously been decided adversely to appellant's position in Gassner v. Bechtel Construction,
702 So.2d 548 (Fla. 1st DCA 1997). The order dismissing the petition for benefits is in all respects AFFIRMED. BARFIELD and VAN NORTWICK, JJ., concur. NOTES [1] Section
440.211 provides in part: (1) Subject to the limitation stated in subsection (2), a provision that is mutually agreed upon in any collective bargaining agreement filed with the division between an individually self-insured employer or other e...
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2002 WL 1401695
.../C), to dismiss a petition for benefits on the ground that the collective bargaining agreement (CBA) entered into between the employer and the union of which claimant/employee, Roger Fernandez, is a member, was null and void, under the provisions of section 440.211, Florida Statutes (1995). [2] The JCC concluded that the agreement diminished the employee's entitlement to an independent medical examination (IME), otherwise available to him under chapter 440, Florida Statutes, contrary to section 440.211(2)....
...of diminishing claimant's entitlement to an IME with regard to indemnity as well as medical benefits. Wiggins was based on statutory language particularly applicable to managed-care arrangements, which is far narrower in scope than that provided in section 440.211(1)(b), allowing the parties to a CBA to agree upon "[t]he use of an agreed-upon list of certified health care providers of medical treatment which may be the exclusive source of all medical treatment under this chapter." (Emphasis add...
...n
440.134, interpreted by Wiggins to apply only to requests for IMEs involving exclusively medical care, [5] and not to claims for IMEs for the purpose of determining an injured employee's entitlement to potential indemnity benefits, the language in section
440.211(1)(b) does not include any requirement whatsoever of an IME....
...The CBA differs from that discussed in Heric v. City of Ormond Beach,
728 So.2d 1247 (Fla. 1st DCA 1999), which required an employee to exhaust his personal and sick leave benefits before he could receive his workers' compensation benefits. Nothing in section
440.211 countenances such an arrangement; in fact, the CBA there was contrary to the provisions of section
440.21, Florida Statutes, which invalidates any agreement requiring an employee to waive his or her right to compensation. We are not unaware that section
440.211(1)(c) authorizes "[t]he use of a limited list of physicians to conduct independent medical examinations which the parties may agree shall be the exclusive source of independent medical examiners pursuant to this chapter." After compar...
...the opinion that the statute does not inflexibly require a CBA to include an alternative list of IME providers once the agreement makes available to an injured worker "a list of certified health care providers of medical treatment," as permitted by section 440.211(1)(b)....
...Although the employee does not have the broader range of care available under section
440.13(5). we consider it important to observe once again that the alternative procedure afforded by a CBA need not be identical to that provided by chapter 440 without offending the provision in section
440.211(2) precluding the diminishment of an employee's entitlement to benefits....
...cting his choice from a list selected by the union and employer, and denied him as well the right to an IME, by limiting him only to a single, second medical opinion. In answering these arguments and others made by the employee that the CBA violated section 440.211(2), this court made the following pertinent observations: By definition, at least some of the procedures in a workers' compensation alternative dispute resolution system must differ from the dispute resolution procedures set out in chapter 440, Florida *993 Statutes (1995). Identical procedures do not constitute an alternative. When, as section 440.211 contemplates, a collective bargaining agreement establishes an alternative dispute resolution system, new means and methods are brought into existence to deliver the same statutory benefits. These procedural differences do not run afoul of section 440.211(2), Florida Statutes (1995)....
...If, as appellant argues, the agreement creates procedural requirements for the receipt of benefits that chapter 440 does not impose, the agreement also creates procedural opportunities for the provision of benefits that chapter 440 does not afford. As long as the benefits themselves are undiminished, the requirements of section 440.211, Florida Statutes (1995), are met. Id. at 552-53 (footnotes omitted). We therefore agree that although the CBA before us makes no explicit provision for an IME, it nonetheless adequately complies with section 440.211(1)(b) by providing Fernandez with a list of medical providers agreed upon by both his employer and his union, and it thereby supplants without diminishingthe provisions of chapter 440....
...BARFIELD and VAN NORTWICK, JJ., concur. NOTES [1] Because the order determined that the judge of compensation claims had jurisdiction over a petition for benefits, it was appealable pursuant to Florida Rule of Appellate Procedure 9.180(b)(1)(A). [2] Section 440.211 provides in part: (1) Subject to the limitation stated in subsection (2), a provision that is mutually agreed upon in any collective bargaining agreement filed with the division between an individually self-insured employer or other e...
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1999 WL 202300
...After the hearing, the judge of compensation claims entered an order denying the petition for benefits on the ground that the collective bargaining agreement provides the exclusive remedy for resolution of the claim. The judge concluded that the agreement creates an alternative dispute resolution system consistent with section 440.211, Florida Statutes and that the agreement did not diminish the claimant's entitlement to workers' compensation benefits. Section 440.211, Florida Statutes (1995) states: (1) Subject to the limitation stated in subsection (2), a provision that is mutually agreed upon in any collective bargaining agreement filed with the division between an individually self-insured empl...
...as otherwise set forth in this chapter. Any such agreement in violation of this provision shall be null and void. In Gassner v. Bechtel Construction,
702 So.2d 548 (Fla. 1st DCA 1997), rev. denied,
717 So.2d 531 (Fla.1998), this court clarified that section
440.211 allows for the creation of a procedural system that is independent of Chapter 440 but does not authorize any changes in the benefits received by a claimant. We stated: This list of what purport to be diminished benefits reveals significant confusion about the distinction section
440.211 draws between benefits and (alternative) procedures....
...By definition, at least some of the procedures in a workers' compensation alternative dispute resolution system must differ from the dispute resolution procedures set out in chapter 440, Florida Statutes (1995). Identical procedures do not constitute an *1249 alternative. When, as section 440.211 contemplates, a collective bargaining agreement establishes an alternative dispute resolution system, new means and methods are brought into existence to deliver the same statutory benefits. These procedural differences do not run afoul of section 440.211(2), Florida Statutes (1995)....
...If, as appellant argues, the agreement creates procedural requirements for the receipt of benefits that Chapter 440 does not impose, the agreement also creates procedural opportunities for the provision of benefits that chapter 440 does not afford. As long as the benefits themselves are undiminished, the requirements of section 440.211, Florida Statutes (1995), are met....
...It is not necessary to decide whether the collective bargaining agreement in this case creates an alternative dispute resolution system because the judge's determination that the agreement does not diminish the claimant's entitlement to Chapter 440 workers' compensation benefits is erroneous. The provisions of section 440.211(2), Florida Statutes compel a conclusion that the collective bargaining agreement is invalid to the extent that it purports to regulate the method of recovering workers' compensation benefits....
CopyPublished | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 795, 2002 Fla. LEXIS 1884, 2002 WL 31084673
...If a petition is pending with the judge of compensation claims, the motion should be filed with the presiding judge. RULE 4.026. EXEMPTIONS FOR COLLECTIVE BARGAINING AGREEMENTS If authorized by a collective bargaining agreement filed with the division under section 440.211, Florida Statutes, the informal dispute resolution process, or review by-the docketing judge, or adjudication by a judge may be replaced by an alternative dispute resolution system that may supplement, modify, or replace the provisions of chapter 440, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
NWCIP at issue is a CBA created pursuant to section
440.211 of the Florida Statutes, which provides as
CopyPublished | Supreme Court of Florida | 21 Fla. L. Weekly Supp. 223, 1996 Fla. LEXIS 827, 1996 WL 268079
...to provide such benefits under a managed care plan and is exempt from EAO consideration, _(E) The dispute is subject to the terms of a collective bargaining agreement between the petitioner and the employer and is exempt from EAO consideration under section 440.211, Florida Statutes....
...ovide such benefits under a managed care plan and is exempt from EAO consideration, *686 _(E) The dispute is subject to the terms of a collective bargaining agreement between the petitioner and the employer and is exempt from EAO consideration under section 440.211, Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 9375, 2002 WL 1401701
...ground that the judge of compensation claims lacked jurisdiction to consider the claim, because a collective bargaining agreement entered into by the employee’s union and the employer had supplanted the provisions of chapter 440, as authorized by section 440.211, Florida Statutes (1995)....
