STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LLOYD J. PETERS, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1125

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated hearing officer, Diane D. Tremor, held an administrative hearing in Room 113, Collins Building, Tallahassee, Florida, at 10:00 A.M. on August 19, 1975.

APPEARANCES

For Petitioner: George Ralph Miller, Esquire

Andrews & Miller Post Office Box 112

DeFuniak Srings, Florida 32433

For Respondent: L. Keith Pafford, Esquire

Division of Retirement

530 Carlton Building Tallahassee, Florida 32304

INTRODUCTION

The issue presented for decision in this matter is whether the Petitioner is entitled to in line of duty disability retirement benefits pursuant to Section 121.091(4), Florida Statute, when the injury in question, although occurring on the job and resulting in total and permanent disability, is an aggravation of a preexisting condition.

It is the Petitioner's contention that he is entitled to the in line of duty benefits notwithstanding the aggravation of the preexisting injury. It is the Respondent's position that, although the accident in question occurred during Petitioner's regular working hours, Petitioner is not entitled to in line of duty benefits because the total and permanent disability did not arise on the job. Stated differently, Respondent contends that since Petitioner's initial injury occurred prior to the Florida Retirement System and while Petitioner was under a retirement system which did not provide him with in line of duty disability retirement benefits, and since the present injury was an aggravation of the preexisting condition resulting from the original injury, petitioner is not entitled to in line of duty benefits.

By stipulation of the parties, the undersigned hearing officer received into evidence Exhibit A, the letter signed by David W. Ragsdale which informed Petitioner of the denial of his application for in line of duty disability retirement benefits. By stipulation of the parties, Exhibits 1-17 were also received into evidence. Mr. Ragsdale, Supervisor for the Disability Determination Unit of the Division of Retirement, was called as a witness by the Petitioner. He was the only witness called to testify during this hearing.

FINDINGS OF FACT

Having listened to the testimony and considered the exhibits presented in this cause, it is found as follows:

1. Since 1964, Petitioner has been employed by the State of Florida, Department of Transportation. His duties consist of operating a tractor pulling a rotary mower which cuts grass on the rights of way of primary and interstate highways. Exhibits 2, 3 and 4.

   
   

2. Prior to 1970, Petitioner was a member of the State and County Officers and Employees Retirement System, under which he was not covered for in line of duty disability retirement benefits.

   
   

3. In 1967, while employed by the State of Florida, Department of Transportation, Petitioner injured his lower back and left leg when a tractor fell off the back of a lowboy trailer. Exhibits 1, 3, 4 and 11.

   
   

4. In 1970, Petitioner transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System (FRS). Exhibit 17.

   
   

5. During his regular working hours in March of 1974, Petitioner again injured his back while moving road material. Exhibits 1, 3, 4, 8 and 13.

   
   

6. On October 31, 1974, Petitioner applied for disability retirement on the basis of the March of 1974 injury. Exhibit 1.

   
   

7. Mr. W. W. Ray, Engineer II with the Department of Transportation, completed a "Statement of Disability by Employer" form on October 21, 1974, answering affirmatively the question of whether petitioner was, prior to his alleged disability, able to perform all of the duties of his position fully and completely. It was further stated by Mr. Ray that petitioner "has been very good employee during his employment. Had worked up to lead worker in his mowing crew." Mr. Ray concluded that "most any job which we have would require a certain amount of working with hand tools and stooping over or standing for long periods of time which could be painful for persons with back problems." Exhibit 2.

   
   

8. Two Florida licensed physicians submitted Florida Retirement System Physician's Reports. Form FR-13b.

   
   

   1. Dr. W. J. Newcomb stated that Petitioner "had strained his back and aggravated the degenerative arthritic condition that existed in his back." He had no "definite indication of proof that the original injury of 1966 [sic] or the subsequent injury of 1974 caused his degenerated condition." Dr. Newcomb felt "it was just probably aggravated by the related accidents." It was opined that Petitioner could do the duties of his occupation in a protected manner, but

      he would have chronic difficulty with his back. The performance of Petitioner's duties would produce pain because of his current illness or injury. Exhibit 3.

      
      

   2. Dr. Howard T. Currie opined that Petitioner was unable to, perform any of the duties of his occupation because of his current illness or injury. Exhibit 4.

      
      

9. On June 5, 1975, a letter was sent to Petitioner by Administrator, Robert L. Kennedy, Jr., under the signature of David W. Ragsdale, Supervisor, Disability Determination Unit. This letter notified Petitioner that the State Retirement Director was unable to approve his application for in line of duty disability retirement benefits "[s]ince your injury is an aggravation of a preexisting condition and since your initial injury occurred prior to the Florida Retirement System..." However, it was determined that Petitioner did meet the requirements for regular disability retirement as described in F.S. 121.091(4)(b) Exhibit A.

   
   

10. In accordance with F.S. Chapter 120, the Petitioner filed a petition requesting a hearing and the Respondent requested the Division of Administrative Hearings to conduct the hearing.

    
    

    CONCLUSIONS OF LAW

    
    

11. Florida Statutes 121.091(4)(a) provides as follows:

    
    

    "A member who becomes totally and permanently disabled, as defined in paragraph (b), after completing five years of creditable service, or a member who becomes totally and permanently disabled in line of duty regardless of service, shall be entitled to a monthly disability benefit. The disability retirement date for

    such member shall be the first day of the month which coincides with or next follows the date the ad- ministrator approves payment of disability retirement benefits."

12. Florida Statutes s. 121.091(4)(b) provides as follows: "A member shall be considered totally and permanently

    disabled if, in the opinion of the administrator,

    he is prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee.

    The decision of the administrator on these questions shall be final and binding."

    
    

13. Inasmuch as the Respondent has determined that Petitioner does meet the requirements of regular disability retirement as described in s. 121.091(4)(b), there is no dispute over the fact that Petitioner is totally and permanently disabled. The only question remaining is whether Petitioner is entitled to the greater benefits allowable for in line of duty disability.

    
    

14. Disability in line of duty is described in Florida Statutes s. 121.021(13) as "an injury or illness arising out of and in the actual performance of duty required by a member's employment during his regularly scheduled working hours or irregular working hours as required by the employer."

15. There is no dispute here that the accident in question, occurring in March of 1974, happened during the actual performance of duty during Petitioner's regular working hours. The dispute is whether this accident resulted in an injury or illness "arising out of and in" the performance of duty. As noted above, the Petitioner contends that it did. The Respondent contends that the disability arose from an aggravation of a preexisting condition and not totally from an injury received during the performance of duty.

    
    

16. It is the general rule that a liberal construction is to be given to retirement or pension statutes in order to achieve their beneficent purposes. State ex rel Holton v. City of Tampa, 159 So.292 (Fla. 1935); City of West Palm Beach v. Holaday, 234 So.2d 24 (Fla. App. 4th, 1970). Such liberal construction resolves all reasonable doubts in favor of the applicability of the statute to the particular case.

    
    

17. It would seem that the question of whether the disability arose out of and in the actual performance of duty should be answered by a determination of whether or not there is a causal relationship between the injury and the subsequent disability which makes retirement necessary.

    
    

18. Applying the above rationale to the facts of this case, it is my conclusion that the humane purposes of retirement laws would partially fail of accomplishment were the evidence in this record held to be insufficient to support in line of duty retirement benefits under 121.091(4). Not only did the March of 1974 injury occur while Petitioner was in the actual performance of his duties; the prior 1967 injury also occurred while Petitioner was in the actual performance of his duties. The 1974 injury did, in fact, render Petitioner totally and permanently disabled, as admitted by the Respondent Division. As noted above in the findings of fact, Petitioner was, prior to the 1974 injury, a good employee and had worked up to lead worker in his mowing crew. The fact that the 1974 injury may have resulted in total and permanent disability only because it aggravated a pre- existing injury is not persuasive enough, under the facts of this case, to deny in line of duty disability retirement benefits to this Petitioner. There is no evidence in this record that Petitioner's disabling condition grew out of any injury received other than in the performance of his regular duties. The fact that the prior injury occurred prior to the existence of the present Florida Retirement System should not defeat Petitioner's claim to in line of duty benefits. It is immaterial that the injury occurring while Petitioner was under the FRS was not the total cause of his disability. In order to be entitled to in line of duty benefits, the statutes require total and permanent disability from an injury arising out of and in the actual performance of duty. The statutes do not require that the injury be the total cause of disability, as contended by respondent.

    
    

19. Finally, it should be noted that F.S. s.121.091(4)(f) lists three causes of disability which would preclude members from receiving benefits. Aggravation of a preexisting condition is not one of the three nonadmissable causes listed. The express mention of one thing (or, in this instance, three things) is the exclusion of others. It would have been a simple matter for the legislature, had it intended to do so, to exclude in line of duty benefits for an injury aggravating a preexisting condition to the extent of total and permanent disability. The same is true with the Division's own rules, which list the same three exclusionary causes of disability. F.A.C. s. 22B-4.07(E). Other exceptions cannot now be written into the law.

20. The undersigned Hearing Officer is aware of Rule 22B-4.07(I), F.A.C., but does not interpret that Rule to limit in line of duty benefits to those who were members of existing retirement systems which provided for disability in line of duty benefits. Rather, it is my interpretation of that Rule that it applies when the total and permanent disabling condition is a sole result of an injury or illness occurring while the disabled person was a member of the existing retirement system for example, an injury which may not manifest itself in total and permanent disability until sometime after the original injury, without the intervention of a subsequent injury. Here, the total and permanent disability arose after a separate incident - an injury occurring while Petitioner was a member of the present Florida Retirement System - although the total and permanent nature of it may not have existed but for the original injury in 1967.

RECOMMENDATION

Based upon the above findings of fact and conclusions of law, it is my recommendation that Petitioner be awarded the greater benefits allowable for a member totally and permanently disabled in line of duty.

Respectfully submitted and entered this 9th day of September, 1975, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

George Ralph Miller, Esquire

P.0. Box 112

DeFuniak Springs, Florida 32433

L. Keith Pafford, Esquire Division of Retirement

530 Carlton Building Tallahassee, Florida 32304

Docket for Case No: 75-001125

Orders for Case No: 75-001125