================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE RETIREMENT COMMISSION OF THE STATE OF FLORIDA

IN THE MATTER OF

Disability Retirement of:

Donald M. Hines, CASE NO. 75-151

Applicant.

/

OPINION AND ORDER

Pursuant to Notice, the State Retirement Commission held a public hearing in the above-styled cause on March 24, 1976 beginning at 1:00 P.M., in the Commission's Hearing Room, Building C, Cedars Executive Center, 2639 North Monroe Street, Tallahassee, Florida 32303. Present in addition to the Chairman were members Nancy T. Ford, Howard Jay Friedman, John R. Smith, Edna S. Tait, and Elliot J. Winograd.

This matter arose when Donald M. Hines, the applicant, applied for in-line-of-duty disability retirement benefits in 1972 and was approved for regular disability retirement benefits effective in 1972 but was advised of the denial of in-line-of-duty disability benefits because his application indicated that not all of his disability arose from the performance of regularly-assigned duties. He was notified of his right to a hearing, pursuant to Chapter 120, Florida Statutes. Following the applicant's request for a formal hearing, a hearing was held at 9:00 A.M., on November 14, 1975, in Room 359, State of Florida Office Building, 1350 N.

1. 12th Avenue, Miami, Florida, before Stephen F. Dean, the assigned Hearing Officer of the Division of Administrative Hearings. Subsequently, the record of the proceeding and the Recommended Order were transmitted to the State Retirement Commission for final hearing.

   
   

   FINDINGS OF FACT

   
   

   Having reviewed the records in the proceeding with the Recommended Order submitted to the Commission by the Hearing

   Officer, said Commission adopts the findings of fact as its findings of fact. The Hearing Officer found the facts as follows:

   
   

   Testimony was received from the claimant and Dr. Lever, his psychiatrist. The deposition of his orthopedic surgeon, Dr. Terheyden, was received together with the records of his various hospitalizations. The depositions of Donald Jones Personnel Director, was also received. Generally, the evidenced showed that prior to 1967, the claimant had injured his back. The claimant testified that this injury occurred in 1963 on the job. Dr. Lever testified that he first began to treat the claimant in 1967 for a condition he later diagnosed as schizophrenia paranoid type reaction, and that he had treated him off and on since 1967 for this condition. Dr. Lever testified and his records state that the claimant's mental condition

   was caused by the childhood deprivation of affection, but that the pain from the 1963 back injury had interfered with the claimant's personal relationships with co-workers and his sexual relations with his wife causing the schizophrenic reaction to manifest itself. The claimant was hospitalized for nine

   days in 1967 and eighteen days in 1970 for psychiatric treatment. The claimant was able to return to work between hospitalizations under drug therapy prescribed by the doctor. This enabled the claimant to function although with occasional episodes of psychotic reactions caused by personal crises which had resulted in his hospitalizations as indicated. Dr. Lever testified that he had last seen the claimant several days before the hearing.

   
   

   Dr. Terheyden's deposition and records of his hospitalization indicated that the claimant first was treated in 1964 for back problems. This treatment continued until 1967 when surgery was performed on the claimant's back. There was no indication from Dr.

   Terheyden's records or deposition what caused the initial injury. Dr. Terheyden also treated the claimant for injuries to his back in 1970 and 1971, performing a second operation in 1972 on his back. Dr. Terheyden's deposition indicated that the claimant could not physically perform the duties he had performed for the school board after his last operation.

   
   

   The claimant testified that he had first injured his back in 1963 but that it was not reported to his employer although he had told the tile setter for whom he worked directly. Several days after the initial injury he went to the doctor and had remained under his treatment until his 1967 operation. The claimant indicated that no report of injury had been filed with the employer because the tile setter for whom he worked had discouraged reporting the injury.

   However, upon examination on this point, he could not offer any satisfactory reason why the report was

   not filed or why the tile setter would have discouraged filing the report.

   
   

   The records and deposition of Donald Jones together with Exhibit 3 which lists the reports of on-the-job injuries indicate that the claimant filed reports of on-the-job injuries in 1961, 1964, 1968, 1969, 1970 and 1971. These records and testimony do not indicate any report filed in 1963. These records indicate that the claimant missed substantial periods of work after the 1970 injury

   not related to the psychiatric treatment listed above.

   
   

   Based upon the foregoing, the Hearing Officer makes the following findings of fact:

   1. The claimant had a back injury prior to 1967 which required surgery in June of 1967.

   2. Said injury caused a schizophrenia paranoid type reaction to manifest itself, but did not cause the claimant's mental disease.

   3. Although the claimant testified that said injury occurred on the job in 1963 but was not reported, this testimony was inconsistent with

      the reports of injuries on the job in 1961, 1962, and 1964 contained in Exhibit 3. The claimant's failure to report the 1963 injury was not adequately explained by the claimant. Considering the interest of the claimant in the outcome of the case, the

      lack of any separate evidence to support his testimony, the reports of injury for the years preceding and following, and the inability of the claimant to

      explain this apparent discrepancy, there is insufficient believable evidence to support a finding that the 1963 injury was job related.

   4. Subsequent to the 1967 operation and the treatment for schizophrenia, the claimant returned to work and worked until 1972 rendering useful and efficient service and receiving incremental raises during these years.

   5. During the period of 1967 to 1972, the claimant injured his back in January 1970, July 1970, and January 1971, all of which occurred or arose out of the performance of regularly-assigned duties on the job.

   6. These injuries necessitated a 1972 operation to claimant's back.

   7. Although the claimant had pre-existing physical and mental ailments, it was the 1970 and 1971 injuries and 1972 operation to the claimant which prevented him from performing the duties which he had performed for the school board.

CONCLUSIONS OF LAW

Having considered the evidence submitted, the exceptions filed and having heard oral arguments in this matter, the Commission rejects the Hearing Officer's conclusions of law and interpretations and finds the following as the correct conclusions of law.

(1) Sections 121.021(13) and 121.091(4)(b), Florida Statutes, require that a member must be totally and permanently disabled as a result of an injury arising from or in the performance of his assigned duties to be eligible for in-line-of- duty disability retirements benefits.

1. Testimony and records establish that the applicant had pre-existing mental and physical ailments. His mental disease predated his employment with the Dade County School Board and his back problems were the result of an injury suffered in 1963. The Commission agrees that there was not sufficient evidence introduced to show that this 1963 injury was an industrial injury. Hence, the Commission concludes that it was not an industrial injury.

   
   

2. The applicant requested in-line-of-duty disability benefits on the basis of his physical and mental ailments. Based on the Hearing Officer's findings that the applicant's 1963 injury and the mental disease were pre-existing ailments, the Commission concludes that the applicant's total and permanent disability was only in part the result of an injury arising out of and in the

actual performance of regularly-assigned duties. His pre-existing and non-work connected conditions were a material part of that total and permanent disability and a substantial element in his being prevented from rendering useful and efficient service as a public employee. This conclusion is to be distinguished from that of the Hearing Officer, who applied a test more appropriate to a finding of a compensable accident under Chapter 440, Florida Statutes. Applying the law to the facts, the Commission concludes that the applicant does not qualify for in-line-of-duty disability benefits under the retirement law.

ORDER

Based on the foregoing findings of fact and conclusions of law, the State Retirement Commission orders that the applicant's application for in-line-of-duty disability benefits is denied.

DONE BY ORDER of the State Retirement Commission this 21st day of April, 1976.

JOHN F. TINGLE, Chairman

Voting for the Order: Voting Against the Order:

Nancy T. Ford Edna S. Tait

John R. Smith Howard J. Friedman John F. Tingle

Elliot J. Winograd

cc: L. Keith Pafford, Esquire Department of Administration Carlton Building Tallahassee, Florida 32304

Donald Feldman, Esquire Feldman & Abramson, P.A.

402 Ainsley Building Miami, Florida 33132

Docket for Case No: 75-000151

Orders for Case No: 75-000151