STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. STILL, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1698

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice at the Conference Room of the offices of Underwood, Gillis, Karcher, Reinert & Gordon, P.A., 150 S.E. Second Avenue, Miami, Florida, at 8:30 a.m. on January 15, 1976, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This matter arose when the Petitioner applied for in line of duty benefits and was advised of the denial of his application by the Division of Retirement. The Petitioner 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.

APPEARANCES

For Petitioner: J. Anthony Reinert, Esquire

Underwood, Gillis, Karcher, Reinert & Gordon, P.A.

150 South East Second Avenue, Suite 1405 Miami, Florida 33131

For Respondent: L. Keith Pafford, Esquire

Division Attorney Division of Retirement Room 530 Carlton Building

Tallahassee, Florida 32304 FINDINGS OF FACT

1. Petitioner, John Still, was a member of the Florida Retirement System in 1972 and 1973, and has been approved and is receiving normal retirement benefits. Petitioner, John Still, is not disabled and thereby is not entitled to disability retirement by virtue of any injury to his back, although he had had a laminectomy.

2. Still, in order to receive in line of duty disability benefits, must have a disability which arose "in the course of or actual performance of normal duties."

   
   

3. According to the medical evidence, Still's heart problem is myocardial ischemia, a condition which arises from arterial schlerosis or progressive coronary artery heart disease, as explained by Dr. Willig.

   
   

4. Still suffered first damage to his heart in 1972 according to Dr. Taxay based on his analysis of the Q waves as depicted in Still's EKG's.

   
   

5. Still's EKG's exhibited definite damage to lateral heart wall in 1973. It is this damage which caused the ischemia or oxygen deprivation which in turn caused the angina pains.

   
   

6. According to the testimony, the 1972 attack occurred while Still was attending a class to further his professional education, but which was on a non- duty day for Still. Therefore, the heart damage suffered in 1972 is not in line of duty.

   
   

7. If the 1973 attack is in line of duty it must have been caused by some unusual physical exertion or unusual stress arising in the actual performance of duties.

   
   

8. The activities to which the 1973 attack have been attributed are:

   
   

   1. The argument with the principal, and

   2. The pushing of the car.

      
      

9. Still stated that he pushed a car into the shop which caused the pain which sent him to the hospital. The facts are that Still helped six to eight class members begin to push the car into the shop, but before the car had been pushed any more than approximately ten (10) feet, Mr. Finnochio, another instructor, took Still's place. Mr. Finnochio stated that Still was primarily encouraging the students to push, which was contradictory to Still's testimony. The question is how much did Still exert himself. According to Finnochio's testimony, Still had one hand on the car and did not appear to be exerting himself in the effort to move the car which had its brakes locked. The Hearing Officer finds that Mr. Finnochio's account is accurate because:

   
   

   1. It was apparent from Mr. Finnochio's demeanor and responses that he was trying to avoid any testimony detrimental to Mr. Still;

   2. Still's prior history of back trouble would have severely limited the degree of effort Still could have made, and

   3. According to Mr. Finnochio, Still did not exhibit any physical manifications of unusual exertion such as heavy breathing, redness of face, or perspiration, and only had one hand

      on the car.

      
      

10. While "unusual exertion" may differ with a person's job, the testimony at hearing by Still was that although pushing cars was not in his shop teacher's job description, it was necessary to frequently re-spot cars due to the fact both day and night, classes were working on cars in the garage. Still also testified that he, as a teacher, had to encourage the students by leadership and

    by his actions to do these things. Clearly, pushing cars which were not running and had mechanical problems was not an unusual occurrence. Teaching automobile shop is not a sedimentary job but one calling for a certain amount of vigorous activity of a physical nature. Considering the frequent pushing of cars and the basic nature of the exertions required to teach shop, the pushing of such a car is not unusual, nor did Still exhibit any unusual physical exertion in pushing the car in question. It is noted that even Still attributed the attack to the stress of the arguments with his principal, and did not connect the car pushing incident to the attack until sometime later. See Dr. Promin's deposition, pp.

    17-18. The Hearing Officer notes that all the doctors who treated the patient later were given the car pushing history, but there was no indication that Still advised the doctors that he had been helping to push the car with others, had been relieved very quickly by Mr. Finnochio, had only been pushing with one hand and within the limitations of a bad back, and did not show any physical manifications of exertion. Dr. Willig mentions at page 7 of his deposition the cars that Still had pushed. Dr. Taxay, after talking with the patient while hospitalized immediately after his attack, noted: "Two: There no consistent triggering event or relief." Clarifying his note, Dr. Taxay stated that it meant "He (Still) could not relate his discomfort to sexual intercourse, exercise, temperature change, food or stress." Based upon consideration of all the testimony and evidence, the Hearing Officer finds that Still's heart attack was not caused by his pushing the car.

    
    

11. Still's argument with the principal was the other possible cause of his 1973 heart attack. Clearly, Still and the principal had had an argument. According to other testimony, the principal was an emotional man as was Still. This confrontation was not a one way dressing down, but a two sided argument in which Still willingly and actively participated. Still stated he had had chest pains throughout Saturday, Sunday and Monday, and that he and the principal discussed this fact upon his arrival at the school on Monday night. The principal was aware of Still's 1972 attack, and had generally encouraged Still to take it easy. The principal told Still on Monday night before Still went to work, to go home, but Still said he would stay. The principal, while continuing to encourage Still to go home, told Still that if he did stay not to exert himself and if he felt any worse to go home. Still elected to remain at work and had exposed himself to another discussion with his principal and the normal duties of his employment, although he knew he was not well, and had been advised to go home by his principal.

    
    

12. The workman's compensation stipulation, Exhibit 4, upon which the workman's compensation case was closed, states that the parties agree that the argument between Still and the principal did not cause the attack. This stipulation is considered by the Hearing Officer as an admission against interest by Still which is not conclusive or dispository of the issue.

    
    

13. The Hearing Officer further concludes that the decision reached in the workman' compensation case is not dispositive of the issues in this case.

    
    

14. Considering the fact that Still had already had one attack in 1972, that there was already some heart damage, that Still was suffering from a progressive form of coronary artery disease, that Still went to the principal to argue against a policy position and participated in a two way argument, that there were three days intervening between the argument and the attack, and that Still refused to go home as suggested by his supervisor, the Hearing Officer finds that the heart attack was not suffered in the performance of actual duties required in his employment. The Hearing Officer, having considered the admission contained within the stipulation, does not find it dispositive of the

issue, but instead bases his finds on the facts listed above, and the conclusion of law that the purpose of normal disability retirement benefits is to protect members of the Florida Retirement System from the disabling effect of disease or accident which are not job related.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer would recommend that the application for disability in line of duty retirement be denied.

DONE and ORDERED this 31 day of March, 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 Division Attorney Division of Retirement Room 530 Carlton Building

Tallahassee, Florida 32304 Counsel for Respondent

J. Anthony Reinert, Esquire Underwood, Gillis, Karcher,

Reinert & Cordon, P.A.

150 South East Second Avenue Suite 1405

Miami, Florida 33131 Counsel for Petitioner

Docket for Case No: 75-001698

Orders for Case No: 75-001698