Heric v. City of Ormond Beach, 98-583.

• Decision Date: 13 April 1999
• Docket Number: No. 98-583.,98-583.
• Parties: William HERIC, Appellant, v. CITY OF ORMOND BEACH and City of Ormond Beach Risk Management, Appellees.
• Court: Florida District Court of Appeals

728 So.2d 1247

William HERIC, Appellant, v. CITY OF ORMOND BEACH and City of Ormond Beach Risk Management, Appellees.

No. 98-583.

District Court of Appeal of Florida, First District.

April 13, 1999.

Geoffrey Bichler of Geoffrey Bichler, P.A., Winter Park, for Appellant.

J. Richard Boehm of Boehm, Brown, Seacrest, Fischer & Lefever, P.A., Daytona Beach, for Appellees.

PER CURIAM.

The judge of compensation claims denied the petition for workers' compensation benefits in this case on the ground that the controversy between the parties was subject to resolution by the terms in a collective bargaining agreement. The parties can agree that workers' compensation claims will be resolved according to an alternative dispute resolution procedure in a collective bargaining agreement, but we conclude that the agreement in the present case is not controlling because it goes beyond the dispute resolution procedure and has the effect of diminishing the employee's substantive right to workers' compensation benefits. Consequently, we reverse for a hearing on the merits of the claim.

The claimant, William Heric, is employed by the City of Ormond Beach as a firefighter. He suffered a heart attack on August 8, 1996, while on vacation. The employer and carrier accepted the compensability of the claimant's heart condition pursuant to section 112.18, Florida Statutes, and began paying medical and indemnity benefits. A collective bargaining agreement between the employer and the union, of which the claimant is a member, explains how the benefits will be paid. Pursuant to this agreement, claimants are entitled to receive full pay and benefits for disability for up to 1,008 hours, which, for firefighters, is equivalent to ninety days. After the 1,008 hours have been exhausted, claimants can petition the city for an extension of "full pay" status. Upon receipt of such a petition, the city is required to convene a panel comprised of the Fire Chief, the treating physician, and the city's Human Resources Director. This panel makes a recommendation to the City Manager regarding the petition. The panel's recommendation is not binding on the City Manager who has the ultimate authority to either grant or deny a claimant's petition. If the petition is denied, the collective bargaining agreement provides that "[t]he employee shall, after utilizing the employee's annual Personal Leave Time and the employee's Sick Leave Bank, revert to normal workers' compensation benefits."

Pursuant to the collective bargaining agreement, the claimant received full pay from August 8, 1996, until December 27, 1996, at which time his 1,008 hours were exhausted. He then petitioned the city for an extension of his "full pay" status. While the petition was pending, the claimant received full pay through deductions from his sick and personal leave banks. On April 3, 1997, the City Manager denied the claimant's petition for an extension. The claimant continued to receive his full pay through deductions from his sick and personal leave banks until his return to work on June 2, 1997.

On February 24, 1997, the claimant filed a petition for benefits seeking payment of temporary total disability or temporary partial disability. The employer and carrier filed a notice of denial to this petition. On December 11, 1997, a hearing was held. The hearing was limited to the issue of whether the claimant was entitled to temporary total disability or temporary partial disability benefits from December 27, 1996, through June 2, 1997, the time period during which the claimant exhausted his sick and personal leave.

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 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.

* * * * *

(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.

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 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

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