STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELENE M. PURCELL, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1092

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A public hearing was held pursuant to notice in the above styled cause in Room 360, State of Florida Office Building, 1350 N.W. 12th Avenue, Miami, Florida at 8:00 a.m. on September 10, 1975, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

Helene M. Purcell was an anesthesieologist nurse at Jackson Memorial Hospital, Dade County, Florida, and a member of the Florida Retirement System. Purcell suffered a job-related accident, and subsequently applied for disability in line of duty retirement from the Florida Retirement System. Her application was not approved and having been advised of her right to a formal hearing pursuant to Section 120.57, F.S., Purcell petitioned for a hearing to the Division of Retirement which referred the case to the Division of Administrative Hearings for a hearing on her eligibility for disability in line of duty retirement.

APPEARANCES

For Petitioner: Harry Zuckerman For Respondent: L. Keith Pafford Witness: Helene M. Purcell

ISSUES

In a short pre-hearing discussion it was determined that the Division of Retirement did not controvert the status of the applicant as being totally and permanently disabled; however, it did controvert whether the disability arose totally out of an in-line duty accident, although the Division of Retirement did not controvert the fact that the applicant had had an accident on duty which had resulted in some degree of physical impairment. Specifically at issue were the affects of a mastectomy and of a degenerative bone disease upon the applicant's total physical disability. It was also agreed that the applicant had no psychological overlay contributing to her disability.

FINDINGS OF FACT

1. The applicant testified that she had hurt her back transferring a patient from the operating table to a stretcher and that as a result she immediately felt a sharp pain in the middle of her lower back radiating upward. She testified that she had later leaned over to take off her operating booties and had been unable to straighten up whereupon she reported to the hospital health center. There she was given some medicine and put on physical therapy. This back pain continued to worsen and although the applicant returned to work during the time between her injury and her application for retirement, she was unable to perform her duties which involved a substantial amount of bending, stooping and similar physical activity.

   
   

2. While she was being treated for her back condition over one year after the original injury, she contracted breast cancer, and a radical mastectomy was performed on August 9, 1974. The Division of Retirement has controverted the application primarily because of the encouraging reports of Dr. Parker of May 27, 1974 (Exhibit 7), which was followed by the entirely opposite report of September 3, 1974 (Exhibit 8); the mastectomy having occurred in the interim. The Division of Retirement asserts Dr. Parker's report of September 29, 1974, in which he references the mastectomy, supports the Division's position.

   
   

   "Mrs. Purcell was seen and examined in the office on September 27, 1974. She continues to have intermittent severe back and hip pain. This is somewhat more severe recently, probably because of the possible adjustment caused by her mastectomy. I do not feel she will be able to return to her previous work.

   
   

3. The applicant testified that although she had had some pain associated with the surgery but that after she had recovered and received physical therapy for the affected arm, she had not been bothered any further.

   
   

4. Avis Garrett as investigator for the County of Dade testified that she had visited the applicant ten times on an unscheduled basis in fifteen months and had almost always found her in bed or at rest. During Garrett's visits the applicant manifested pain by her walk, stance and by complaining of great pain. Garrett visited the applicant within a few weeks after the mastectomy and was uaware of the operation, the applicant not having mentioned or complained of it, until some comment related to it was made as she was leaving. Beyond the passing comment contained in Dr. Parker's medical report quoted above there is no other medical opinion expressed regarding the mastectomy affecting the applicant's condition.

   
   

5. Both medical reports of Dr. Parker and dr. Herskowitz, dated September 16, 1975, supporting the application, diagnose the applicant's physical diability as a back injury. In neither case do the doctors' reports indicate the radical mastectomy as contributing to the patient's disability as indicated by their response to questions 2 and 7 (respectively Exhibits 22 and 23).

   
   

6. I find that the report of Dr. Parker dated September 29, 1974, quoted above, consistent with the applicant's testimony that she had some difficulty in movement associated with the then recent surgery. Based on the foregoing, I find that the mastectomy is not a contributing factor to the existing physical disability.

7. There is some indication that the lack of activity enforced by the back injury has caused the development of a disease of the bone; however, I find that it is the lack of mobility resulting from the disability which has aggravated or "caused" the disease and not the disease that has caused the disability.

   
   

   CONCLUSIONS OF LAW

8. Section 121.021(13), F.S., provides in pertinent part as follows: "'Disability in line of duty' means an injury

   arising out of and in the course of and in the actual performance of duty required by a member's employment. . ."

   
   

9. The question presented here is whether Purcell's disability arose out of and in the course of her duties. The position of the Division of Retirement is that Purcell's mastectomy and bone disease contributed to her disability, therefore, her total disability did not arise out of the performance of her duties.

   
   

10. Based upon the facts above the position of the Division of Retirement cannon be sustained. The facts support the Petitioner's claim that her disability arose out of and in the course of performance of her duties.

RECOMMENDED ORDER

Wherefore, I recommend that Helene Purcell receive in line of duty benefits.

DONE and ORDERED this 18th day of September, 1975.

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

(904) 488-9675

COPIES FURNISHED:

L. Keith Pafford, Counsel for Respondent Harry Zuckerman, Counsel for Petitioner Helene M. Purcell, Petitioner

Robert L. Kennedy, Director, Div. of Retirement

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELENE M. PURCELL, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1092

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

AMENDED RECOMMENDED ORDER

A public hearing was held pursuant to notice in the above style cause in Room 360, State of Florida Office Building, 1350 N.W. 12th Avenue, Miami, Florida at 8:00 a.m. on September 10, 1975, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

Helene M. Purcell was an anesthesiologist nurse at Jackson Memorial Hospital, Dade County, Florida, and a member of the Florida Retirement System. Purcell suffered a job-related accident, and subsequently applied for disability in line of duty retirement from the Florida Retirement System. Her application was not approved and having been advised of her right to a formal hearing pursuant to Section 120.57, F.S., Purcell petitioned for a hearing to the Division of Retirement which referred the case to the Division of Administrative Hearings for a hearing on her eligibility for disability in line of duty retirement.

APPEARANCES

For Petitioner: Harry Zuckerman Witness: Helene M. Purcell

For Respondent: L. Keith Pafford

ISSUES

In a short pre-hearing discussion it was determined that the Division of Retirement did not controvert the status of the applicant as being totally and permanently disabled; however, it did controvert whether the disability arose totally out of an in line of duty accident, although the Division of Retirement did not controvert the fact that the applicant had had an accident on duty which had resulted in some degree of physical impairment. Specifically at issue ware the affects of a mastectomy and of a degenerative bone disease upon the applicant's total physical disability. It was also agreed that the applicant had no psychological overlays contributing to her disability.

FINDINGS OF FACT

1. The applicant testified that on May 5, 1973, she had hurt her back transferring a patient from the operating table to a stretcher and that as a result she immediately felt a sharp pain in the middle of her lower back radiating upward. She testified that she had later leaned over to take off her operating room booties and had been unable to straighten up, whereupon she reported to the hospital health center. There she was given some medicine and put on physical therapy. This back pain continued to worsen and although the applicant returned to work several times during the time between her injury and her application for retirement, she was unable to perform her duties which involved a substantial amount of bending, stooping and similar physical activity.

   
   

2. While she was being treated for her back condition over one year after the original injury, she contracted breast cancer, and a radical mastectomy was performed on August 9, 1974. The Division of Retirement had controverted the application primarily because of the encouraging reports of Dr. Parker of May 27, 1974 (Exhibit 7), which was followed by the entirely opposite report of September 3, 1974 (Exhibit 8); the mastectomy having occurred in the interim. The Division of Retirement asserts Dr. Parker's report of September 29, 1974, in which he references the mastectomy, supports the Division's position.

   
   

   "Mrs. Purcell was seen and examined in the office on September 27, 1974. She continues to have intermittent severe back and hip pain. This is somewhat more severe recently, probably because of the possible adjustment caused by her mastectomy. I do not feel she will be able to return to her previous work."

   
   

3. The applicant testified although she had had some pain associated with the surgery, that after she had recovered and received physical therapy for the affected arm she had not been bothered any further.

   
   

4. Avis Garrett as investigator for the County of Dade testified that she had visited the applicant ten times on an unscheduled basis in fifteen months and had almost always found her in bed or at rest. During Garrett's visits the applicant manifested pain by her walk, stance and by complaining of great pain. Garrett visited the applicant within a few weeks after the mastectomy and was unaware of the operation, the applicant not having mentioned or complained of it, until some comment related to it was made as she was leaving. Beyond the passing comments contained in Dr. Parker's medical report quoted above there is no other medical opinion expressed regarding the mastectomy affecting the applicant's condition.

   
   

5. Both medical reports of Dr. Parker and Dr. Herskowitz, dated September 16, 1975, supporting the application, diagnose the applicant's physical disability as a back injury. In neither case do the doctors' reports indicate the radical mastectomy as contributing to the patient's disability as indicated by their response to questions 2 and 7 (respectively Exhibits 22 and 23).

   
   

6. Dr. Parker's answers to the Interrogatories filed in this case do not support the Division of Retirement's contention regarding the Petitioner's mastectomy as contributing to her disability. Dr. Parker states clearly that Petitioner's disability was not related to her mastectomy but was the result of

   her injury on May 3, 1973. Based on the foregoing, I find that the mastectomy is not a contributing factor to the existing physical disability.

   
   

7. There is some indication that the lack of activity enforced by the back injury has caused the development of a disease of the bone; however, I find that it is the lack of mobility resulting from the disability which has aggravated or "caused" the disease and not the disease that has caused the disability.

   
   

   CONCLUSIONS OF LAW

8. Section 121/021(13), F.S., provides in pertinent part as follows: "'Disability in line of duty' means an injury

   arising out of and in the course of and in the

   actual performance of duty required by a member's employment. . ."

   
   

9. The question presented here is whether Purcell's disability arose out of and in the course of her duties. The position of the Division of Retirement is that Purcell's mastectomy and bone disease contributed to her disability, therefore, her total disability did not arise out of the performance of her duties.

   
   

10. Based upon the facts above the position of the Division of Retirement cannot be sustained. The facts support the Petitioner's claim that her disability arose out of and in the course of performance of her duties.

RECOMMENDED ORDER

Wherefore, I recommend that Helene M. Purcell receive in line of duty benefits.

DONE and ORDERED this 4th day of November, 1975.

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 Division Attorney Division of Retirement

530 Carlton Building Tallahassee, Florida 32304

Harry Zuckerman, Esquire suite 709

Biscayne Building Miami, Florida 33130

Docket for Case No: 75-001092

Orders for Case No: 75-001092