Gassner v. Bechtel Const.

• Citation: 702 So.2d 548
• Decision Date: 10 November 1997
• Docket Number: No. 96-2006,96-2006
• Parties: 22 Fla. L. Weekly D2581 Joseph H. GASSNER, Appellant, v. BECHTEL CONSTRUCTION and Industrial Indemnity, Appellees.
• Court: Court of Appeal of Florida (US)

Page 548

702 So.2d 548

22 Fla. L. Weekly D2581

Joseph H. GASSNER, Appellant, v. BECHTEL CONSTRUCTION and Industrial Indemnity, Appellees.

No. 96-2006.

District Court of Appeal of Florida,

First District.

Nov. 10, 1997.

Rehearing Denied Dec. 16, 1997.

Louis P. Pfeffer of Adams, Coogler, Watson & Merkel, West Palm Beach; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.

Jack A. 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 ... accepted as compensable," to act on a petition for benefits seeking workers' compensation benefits, including payment of medical and pharmaceutical bills and an award of attorney's fees and costs. We affirm.

Having accepted as compensable the industrial accident that befell Joseph Gassner on March 10, 1995, Bechtel Construction, Inc. (Bechtel), his employer, and Industrial Indemnity its workers' compensation insurance carrier, moved to dismiss the petition for benefits Mr. Gassner had filed with the Division of Workers' Compensation of the Department of Labor and Employment Security, which was then pending before a judge of compensation claims. ¹ As grounds for dismissal, they contended that Mr. Gassner's exclusive remedy was to seek any benefits he had not already been furnished by pursuing them in accordance with procedures a collective bargaining agreement had established.

Bechtel reached the collective bargaining agreement in question (a copy of which had been filed ² with the Division of Workers' Compensation of the Department of Labor and Employment Security) with, among others, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Pipefitters Local No. 630. The entire agreement concerned workers' compensation benefits. Article IV ("Dispute Prevention and Resolution") established alternative dispute resolution procedures:

a) The dispute prevention and resolution program will consist of three components:

Ombudsman

Mediation

Arbitration

b) This program shall be used in place of and to the exclusion of the mediation, pretrial and hearing and review processes contained in Sections 440.25 and 440.271 of the Florida Statutes. Any claim subject to this Agreement brought to the Division of Workers' Compensation for resolution will immediately be removed from the Division and placed within the program established by this Agreement.

c) The Ombudsman will be a BCC [Bechtel] employee selected and paid by BCC. The mediator and the arbitrator will be selected through negotiation among the parties to this Agreement. The cost of mediation and arbitration services will [be] paid by BCC.

d) An employee covered by this Agreement who believes that he is not receiving workers' compensation benefits to which he is entitled, including medical and hospital services, shall notify the Ombudsman. If the issue cannot be resolved to the satisfaction of the employee within five working days, the employee may apply for mediation on the form attached to this Agreement, which shall be filed with the mediator. The parties may extend the five day period by mutual agreement. No issue will proceed to mediation without first being presented to the Ombudsman. The response of the Ombudsman to the employee shall be explained in terms which are readily understandable by the employee. BCC will maintain a log recording all Ombudsman activity, including the date of each notification and the date of each response.

e) Application for mediation shall be made not more than 60 days after the Ombudsman has responded to the employee's notification. Any application for mediation shall immediately be assigned to the mediator selected under this Agreement. The mediator will contact the parties to the dispute, including BCC's insurance carrier and take whatever steps the mediator deems reasonable to bring the dispute to an agreed conclusion.

f) Mediation shall be completed in not more than 14 calendar days from the date of referral, except that in no event shall an issue be permitted to proceed beyond mediation until and unless the moving party cooperates with the mediator and the mediation process.

g) Within 30 calendar days after the completion of the mediation process, any party not satisfied with the outcome may file with the mediator a request that the matter be referred for arbitration. Upon receipt of such a request, the mediator shall immediately refer the matter to the arbitrator agreed to by the parties to this Agreement for arbitration. The arbitration date will be set with sufficient advance notice to permit the parties to retain and or/consult [sic] with legal counsel.

h) Arbitration will be conducted pursuant to the rules of the American Arbitration Association, using the arbitrator agreed to by the parties to this Agreement. Unless the parties to the matter otherwise agree, arbitration proceedings shall be completed within 30 days after referral, and an arbitration decision rendered within 10 days of the completion of the proceedings.

i) No written or oral offer, finding or recommendation made during the mediation process by any party or mediator shall be admissible in the arbitration proceedings except by mutual agreement of the parties.

j) The mediator or arbitrator may in his sole discretion appoint an authorized provider to assist in the resolution of any medical issue, the cost to be paid by BCC.

k) Neither party will be permitted to be represented by legal counsel at mediation. All communication between the mediator and the parties shall be directly with the parties, and not through legal counsel.

l) Claimants' attorneys' fees shall be paid in the same amounts and in the same manner as provided for in Section 440.34 of the Florida Statutes, subject to the approval of either the arbitrator or a judge of industrial claims.

m) Arbitration shall be subject to the provisions of Chapter 682 of the Florida Statutes, the Florida Arbitration Code. The decision and award of the Arbitrator shall be final, except as provided for in Chapter 682.

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.

A member of a local union in Texas (No. 2111), which is also an affiliate of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Mr. Gassner was subject to this collective bargaining agreement by virtue of his status as a traveling member of the union, his travel card having been deposited with Pipefitters Local No. 630. No party contends otherwise.

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-insured employer or other employer upon consent of the employer's carrier and a recognized or certified exclusive bargaining representative establishing any of the following shall be valid and binding:

(a) An alternative dispute resolution system to supplement, modify, or replace the provisions of this chapter which may include, but is not limited to, conciliation, mediation, and arbitration. Arbitration held pursuant to this section shall be binding on the parties.

(b) The 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.

(c) The 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.

(d) A light-duty, modified-job, or return-to-work program.

(e) A vocational rehabilitation or retraining program.

(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. Stat. (1995).

The statute manifests a clear intention to curtail or displace the jurisdiction of the Division of Workers' Compensation and its judges of compensation claims, when collective bargaining agreements meet the statutory criteria. Absent such pro tanto contractions of the reach of chapter 440's procedural provisions, the Workers' Compensation Law applies in every detail, § 440.03, Fla. Stat. (1995), collective bargaining agreements notwithstanding. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985)(Federal labor law "does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law.").

Mr. Gassner argues that the collective bargaining agreement between Bechtel and the pipefitters' union diminishes benefits chapter 440 confers on injured workers...