Ulico Cas. Co. v. Fernandez
Decision Date | 01 July 2002 |
Docket Number | No. 1D01-1783.,1D01-1783. |
Citation | 825 So.2d 988 |
Parties | ULICO CASUALTY COMPANY and Eagle Metal Fabricators, Appellants, v. Roger FERNANDEZ, Appellee. |
Court | Florida District Court of Appeals |
Steven P. Kronenberg and Lawrence E. Root of Kelley, Kronenberg, Gilmartin, Fichtel & Wander, P.A., Miami Lakes; John H. Lewis, Boca Raton, for Appellants.
Mark L. Zientz and Andrea Cox of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellee.
This is an appeal of a nonfinal workers' compensation order1 in which the judge of compensation claims (JCC) denied the motion of Eagle Metal Fabricators and Ulico Casualty Co., respectively the employer and insurance carrier (E/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).3 We agree with the E/C that the agreement does not diminish such benefit; accordingly, we reverse as to this point, thereby mooting consideration of the remaining issues. In reaching her decision that the CBA diminished the benefits which the claimant could seek under chapter 440, the JCC concluded that the CBA's failure to provide for IMEs constituted a per se diminution of claimant's entitlement to benefits, relying upon the reasoning of this court in Wiggins v. B & L Services, Inc., 701 So.2d 570 (Fla. 1st DCA 1997). In that case, the issue was whether a managed-care arrangement under section 440.134, Florida Statutes (1995), could limit the claimant's choice of an IME physician to those within the carrier's managed-care provider network. The JCC had ruled that the managed-care plan required the claimant to exhaust the grievance procedure before seeking an IME as allowed by section 440.13(5), Florida Statutes.4
On review, this court differentiated between the provision of an IME to resolve a dispute over the issue of medical treatment, care, and attendance, and the allowance of an IME to decide a controversy regarding claimant's entitlement to indemnity benefits, by commenting: "In the latter case, denial of the request for IMEs would result in the E/C's controlling the selection of the claimant's expert medical witnesses, thereby denying her a meaningful opportunity to be heard." Id. at 572. The court concluded, however, that the managed-care provisions in chapter 440 applied only to medically necessary remedial treatment, care, and attendance, and did not apply at all to questions of indemnity benefits. It denied the petition for certiorari relief without prejudice to claimant's right to amend, observing that if claimant had a dispute only regarding medical treatment, then the JCC had correctly denied her request for an IME by requiring claimant to exhaust the dispute-resolution procedures in the managed-care arrangement. If, on the other hand, claimant had a dispute regarding indemnity benefits, then the JCC had erred in denying her request for an IME.
The JCC erroneously relied on Wiggins in reaching her decision that the CBA had the effect 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 added.) Unlike section 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 statute's demands are satisfied by the CBA's provision of an agreed list of medical healthcare providers who exclusively furnish the employee all the medical care essential under chapter 440.
The CBA before us complies with the statute's directives. Article III of the CBA pertaining to "Authorized Medical Providers" states as follows:
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Ariston v. Allied Building Crafts
...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 dimini......
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MARIBONA v. SOUTHERN PAN SERVICES, 1D00-2254.
...Statutes (1995). We affirm all issues raised, noting that some have been addressed by this court's decisions in Ulico Casualty Co. v. Fernandez, 825 So.2d 988 (Fla. 1st DCA 2002), and Ariston v. Allied Building Crafts, 825 So.2d 435 (Fla. 1st DCA 2002), while others are either without merit......