STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAT Q. TROCCI, )

)

Petitioner, )

)

vs. ) CASE NO. 75-137

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, DIVISION ) OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice dated July 25, 1975, an Administrative Hearing was held in this cause pursuant to Section 120.57(1), F.S., before Stephen F. Dean, Hearing Officer, on September 11, 1975, in Room 360, State of Florida Office Building, 1350 Southwest 12th Avenue, Miami, Florida.

APPEARANCES

For Petitioner: Albert E. Harum, Jr., Esquire

Suite 300, Executive Building

316 Aragon Avenue

Coral Gables, Florida 33134

For Respondent: L. Keith Pafford, Esquire

Division Attorney Division of Retirement

530 Carlton Building Tallahassee, Florida 32304

ISSUE

This matter arose when the claimant applied for in line of duty disability retirement and was advised of the denial of his application of in line of duty disability benefits. The claimant was advised of his right to a hearing pursuant to Chapter 120, Florida Statutes, and filed a Petition for a hearing to determine whether he was entitled to disability in line of duty benefits. The matter was referred to the Division of Administrative Hearings for hearing pursuant to Chapter 120, Florida Statutes.

FINDINGS OF FACT

1. The Petitioner, Pat Q. Trocci, is a 59 year old, white male, whose formal education is limited, and whose primary work experience outside military service in World War II was as a mechanic. The Petitioner was first injured on December 2, 1972, as hereinafter described. Between the date of his injury and 1974 he returned to work several times. During the period May 1973 to June 1974

   the Petitioner returned to work on several occasions. The longest period which he worked continuously was six weeks, and during the entire period he worked 100 days.

   
   

2. On December 2, 1972, Petitioner, Pat Q. Trocci, was installing a large hydraulic cylinder weighing approximately seven hundred (700) pounds in the back of a garbage truck. Trocci was attempting to push the cylinder into place when it shifted on the chain holding it, sheared the retaining bolt and struck Trocci in turn knocking him into other solid structures in the truck. Trocci, in fear, leaped from the truck and fell again striking himself on objects in the garage. Trocci continued to work, but later that evening began to experience pain. Trocci did not report for work for the next two days which were his regular days off. On the third day, he called in sick and went to the doctor. Dr. Talan administered a pain killing injection to Trocci and gave him oral pain killers. Trocci returned to his house, did some light work, such as watering the lawn, but later that evening experienced severe pain. Trocci was admitted to the hospital within several days suffering from back pain. The tentative diagnosis of the injury was a ruptured disc to Trocci's back with nerve root compression. Trocci was treated conservatively and released for bed rest at home.

   Thereafter, Trocci returned to work after a lengthy recuperation.

   
   

3. Trocci was alternately at work and off work for the next year and a half. He would return to work and perform his duties, but eventually reinjure his back. From May 1973 until June 1974 Trocci worked 100 days of which the longest consecutive period on the job was six weeks. During this period, Trocci was in the care of Dr. Talan and thereafter Dr. Drucker. Trocci suffered primarily from his back ailment during that period.

   
   

4. Dr. Drucker's deposition was presented in evidence and considered. Dr. Drucker, an orthopedic, had first seen Trocci in 1972 on referral from Dr. Talan. Dr. Drucker diagnosed Trocci's problem as am inflammation of the nerve root in the lower back. Dr. Drucker had treated Trocci until May 1974, but had last seem Trocci on February 1975. Trocci's medical history included Trocci's description of the accident. Dr. Drucker felt that the trauma was the result of Trocci's accident. Dr. Drucker stated that Trocci's condition was complicated by degenerative back disease, but that the disease was not the cause of Trocci's problems, but adversely affected his response to treatment and rehabilitation.

   
   

5. Dr. Drucker indicated that Trocci's problems could be neurological rather than a nerve compression syndrome although he felt his diagnosis was accurate and the best he could make without the further tests to include a myelogram, which he had recommended but which to his knowledge Trocci had not had. Dr. Drucker stated his diagnosis was based on the fact Trocci had no neurological deficits which seemed to eliminate neurological damage. Dr. Drucker felt that Trocci's urological problems were due to extended bed rest, but that he would defer his opinion to the treating doctors.

   
   

6. Dr. Drucker stated that in his opinion Trocci could not perform the duties he had performed prior to his injury because he could do no heavy lifting, could not bend, sit, or stand for long periods. Dr. Drucker did feel that Trocci could physically perform sedentary work, but was not aware of Trocci's educational background.

   
   

7. Dr. Steinsnyder's report was introduced into evidence as Exhibit 1 and considered. Dr. Steinsnyder had first seem Trocci in August of 1974. At that time Trocci was hospitalized from August 15, 1974 until August 18, 1974 for back pain and bladder retention. Dr. Steinsnyder had treated Trocci from August 15,

   1974 until February 12, 1975. The reports in Exhibit 1 indicate that Trocci had had a history of bladder retention during the period of Steinsnyder's treatment.

   
   

8. Dr. Steinsnyder urged Trocci on January 22, 1975 to seek a fellow up on his nerve root compression with an orthopedic surgeon or neurelogic surgeon.

   
   

9. Trocci was hospitalized on January 31, 1975 in Osteopathic General Hospital, North Miami Beach under Dr. Steinsnyder. Dr. Gonyaw was called in as a neurological consultant at that time.

10 Dr. Gonyaw had a myelogram performed on Trocci shortly after first seeing Trocci on February 2, 1975. Dr. Gonyaw expressed his opinion that at that date Trocci had reached maximum medical improvement. Based upon the results of the myelogram, Dr. Gonyaw eliminated nerve root compression resulting from a ruptured disc as a cause of Trocci's problems. This meant, in Dr. Gonyaw's opinion, that Trocci's problems were the result of a trauma of the spinal cord which had left Trocci with permanent damage. Dr. Gonyaw explained that such an injury is sometimes followed by a slow deterioration of the spinal cord which causes progressively severe symptoms.

1. Dr. Gonyaw found that Trocci had impaired control of his legs, a continually worsening urological condition, and probably worsening neurological condition. Dr. Gonyaw felt that Trocci's real problem was neurological and not urological, but clearly indicated that in his condition Trocci could not perform any real work beyond some sort of hand piece work at his home.

   
   

2. The deposition of Dr. Gilbert was also introduced into evidence and considered. Dr. Gilbert saw Trocci on August 22, 1973, at which time Trocci advised Dr. Gilbert of his earlier treatment by Drs. Drucker, Steinsynder, and Gonyaw.

   
   

3. Dr. Gilbert stated that Trocci's symptoms were pains radiating from the lower back and buttocks into the legs and urinary retention and bladder infection. Dr. Gilbert's examination revealed that Trocci's movements were abnormally diminished, he exhibited bilateral sciatic tenderness, but that Trocci had had no sensory loss and his deep tendon reflexes were normal.

   
   

4. Dr. Gilbert's medical opinion was that Trocci should not do any heavy lifting, no prolonged standing or sitting and no climbing. Because of his urological problems, Dr. Gilbert felt Trocci's ability to work is even more restricted.

   
   

5. Dr. Gilbert's prognosis was one of continuing worsening of Trocci's condition, with the spread of infection eventually to his kidneys.

   
   

6. The doctors involved have indicated in the fashion used in Workman's Compensation cases that the Petitioner is between 60 percent and 80 percent permanently partially disabled. They have all indicated that Trocci is not totally immobile and could do some light work with his hands.

   
   

7. A listing of various job descriptions and positions was introduced by the Division as Exhibit 2 together with the affidavit of the head of the State's classification branch. The Hearing Officer finds having reviewed these descriptions and considered the obvious physical requirements of the various positions that the Petitioner could not perform any of these duties on a day in and day out basis based on the doctors' evaluations of his limitations.

   CONCLUSIONS OF LAW

   
   

8. The Division has argued that based upon the facts the Petitioner is not 100 percent disabled because he could conceivably contribute some useful service to a public employer. It has argued that the Petitioner's urological problems could be overcome by the Petitioner wearing a permanent catheter attached to a urinary bag which is attached to his leg.

   
   

9. The doctors' opinions relative to Trocci's orthopedic limitations were unanimous. Trocci's urological problems were a direct result of the injury in the truck in the opinion of all those physicians who had all of the facts. The Hearing Officer finds, based upon their testimony, that Trocci's urological problems were "in line of duty". Further in regard to his urological problems, assuming Trocci could tolerate catherization on a long term basis, working with a urinary bag attached to his leg would constitute an additional restriction on his activities.

   
   

10. As the Division has in the past eloquently argued, the Workman's Compensation law has no binding effect on the decision made under the retirement law. The fact that doctors referring to the criteria of that law classify a patient as having a 60 percent, 80 percent or 72 percent partial permanent disability of the body as a whole is immaterial in a determination of disability under the provisions of Chapter 110, Florida Statutes. The issue is whether the Petitioner can render useful and efficient service.

    
    

11. Applying this standard to the Petitioner it is clear that he is permanently disabled. There are no jobs to which the Hearing Officer has been referred which do not require some physical effort of a type which the Petitioner cannot perform, or in addition to which he lacks the skills to perform.

    
    

12. When medical testimony limits the Petitioner's activities to hand piece work at home, restricts heavy lifting, sitting or standing for long periods and prohibits any climbing, unless the individual possesses particular valuable skills or knowledge, his efficient service is very limited.

    
    

13. The record further indicates that prior to his condition worsening to his present state, that Trocci did work. However, in slightly ever a year, May 1973 to June 1974, he only worked 100 days. Such a record of absences cannot be tolerated by an employer.

RECOMMENDATION

Based upon the preceding findings of fact and conclusions of law, it is recommended that the Petitioner receive disability in line of duty retirement benefits.

DONE and ORDERED this 16th day of February, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

L. Keith Pafford, Esquire Counsel for Respondent

Albert E. Harum, Jr., Esquire Counsel for Petitioner

Docket for Case No: 75-000137

Orders for Case No: 75-000137