STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA ORLANDO, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1246

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on November 4, 1982, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert B. Scharf, Esquire

1700 East Las Olas Boulevard, Suite 101 Fort Lauderdale, Florida 33301

For Respondent: Stanley M. Danek, Esquire

Department of Administration Division of Retirement

2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303

The Petitioner, Linda Orlando, filed an application for in-line-of-duty death benefits with the Division of Retirement of the Department of Administration. By letter dated March 17, 1982, the Division determined that there was not sufficient evidence to support the claim and advised Petitioner of her right to initiate formal administrative proceedings. Petitioner filed a Petition for formal proceedings. The Division forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. The final hearing was originally scheduled to be conducted on August 16, 1982. The Division filed a Motion for Continuance, which was granted, and the final hearing was rescheduled to be conducted as set out above by notice dated August 4.

At the final hearing, the Petitioner testified on her own behalf and called Manuel Pegan, a co-worker of the Petitioner's deceased husband; and Sandra Ragno, the Petitioner's daughter, as additional witnesses. The Respondent called the following witnesses: Gerald W. Peters, Ronald Greene, and Myron Looker, all of whom formerly worked with the Petitioner's deceased husband.

Joint Exhibits 1 and 2; and Respondent's Exhibits 1, 2, 3, 4, and 5 were received into evidence.

The parties have submitted post-hearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are specifically set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUE

The ultimate issue to be resolved in this proceeding is whether the Petitioner is eligible to receive in-line-of-duty death benefits in accordance with Section 121.091(7)(c), Florida Statutes. Petitioner contends that her husband was a member of the Florida Retirement System and that his death arose out of the performance of duties required by his employment. Petitioner specifically contends that her husband suffered a fatal myocardial infarction, or heart attack, as a result of physically and emotionally stressful duties that he was required to perform at work. The Respondent contends that there is no causal connection between any stressful work conditions that existed and the death of Petitioner's husband.

FINDINGS OF FACT

1. The Petitioner is the widow of Nicholas Orlando. The deceased Nicholas Orlando was employed at the time of his death by the Broward County Board of County Commissioners as a maintenance supervisor at the County's sanitary landfill. The deceased was an excellent employee. He was charged with responsibilities for maintaining heavy equipment that was required to process trash at the landfill. He served as a "working supervisor." Generally, his job would require that he explain tasks that needed to be accomplished to mechanics and laborers who worked under him. If the job demanded it, the deceased would perform labor along with the men that he supervised. He was a member of the Florida Retirement System.

   
   

2. During the week preceding March 6, 1980, the deceased was confronted with a heavy and difficult workload. There were ongoing maintenance problems with a tire shredding machine, and the chain and track on a large bulldozer needed to be changed. The maintenance personnel had not previously been called upon to change the chains on this large bulldozer, and they did not have the proper tools. Removing the old chain turned out to be a very physically demanding task. The Respondent, together with his workers, had to use a heavy sledgehammer to remove pins from the chain and welding equipment to remove bolts. The decedent worked along with his crew in removing the chain.

   
   

3. The decedent suffered symptoms of a cold in the days prior to March 6, 1980. He had a cough. He stayed home from work on March 5, 1980, because of these symptoms. He returned to work on March 6 and put in a full workday. The evidence is inconclusive as to what specific duties the decedent performed on March 6. It is not clear from the evidence whether the difficulties with the bulldozer chain occurred on that day or a week earlier. It does appear that the decedent worked hard on March 6. When he arrived home, his wife observed him as being dirtier than he had ever been and extremely tired.

   
   

4. The decedent arrived home from work at approximately 4:45 p.m. on March 6, 1980. In addition to being dirty and tired, he was feeling ill. He was not interested in eating. He became more ill; and late that night, he was taken to the emergency room at Plantation General Hospital in Plantation, Florida. He was admitted to the hospital shortly before midnight. Doctors at the hospital

   diagnosed the decedent as having suffered an acute myocardial infarction. It was determined that he was suffering from a coronary arteriosclerotic heart disease. His condition continued to deteriorate while he was in the hospital, and he died on March 9, 1980. Death resulted from the myocardial infarction.

   
   

5. Many factors can bring on coronary artery diseases. The conditions can be inherited and can result from smoking, diabetes, and hypertension. The decedent was a smoker, and he suffered from diabetes. Myocardial infarction can be brought about as a result of heavy physical activity or emotional strain. If a person is suffering from a heart disease, any activities which markedly increase the heart rate can result in infarction.

   
   

6. While it is possible that the decedent's myocardial infarction was brought about by strenuous physical activity at his job, the evidence is insufficient to support a finding of fact to that effect. The fact that the decedent was a smoker and a diabetic could have brought on the infarction if the decedent had been sedentary. While the evidence does support a finding that the decedent was working hard in the days prior to his death, a conclusion that the hard work resulted in his death can rest only on speculation. The evidence does not establish it.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

8. Section 121.091(7)(c)1, Florida Statutes, provides:

   
   

   The surviving spouse of any member killed in the line of duty may receive a monthly pension equal to one-half of the monthly salary being received by the member at the time of death for the rest of the surviving spouse's lifetime . . .

   
   

   The Petitioner, Linda Orlando, is the surviving spouse of Nicholas Orlando. Nicholas Orlando was a member of the Florida Retirement System at the time of his death.

   
   

9. "Death in line of duty" is defined at Section 121.021(14), Florida Statutes, as follows:

   
   

   "Death in the line of duty" means death 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 . . .

   
   

   The issue to be resolved in this proceeding is whether Nicholas Orlando's death arose out of the performance of his job duties. Since the Petitioner is seeking benefits from the Florida Retirement System, it is her burden to establish that Nicholas Orlando was killed in the line of duty. The evidence is insufficient to establish that Nicholas Orlando's death resulted from performance of his work duties. The facts that the decedent was working hard in the days prior to his

   death and that hard physical labor can lead to heart failure do not establish a causal connection between the hard work performed by the decedent and his death. While the hard work could have caused heart failure and may have been a contributing factor, there are other factors that are equally as plausible.

   These include the facts that the deceased was a diabetic and a smoker and that it appeared that he was suffering from congestive heart disease. Petitioner has failed to establish that her husband died as a result of work duties, and she is therefore not entitled to receive in-line-of-duty death benefits.

   
   

10. The Petitioner testified during the hearing as to statements made by her deceased husband during the days prior to his death. She testified that her husband told her on March 6, 1980, that he had had to work extremely hard and that he was under extraordinary pressure to complete various maintenance jobs. The Respondent objected to the testimony, citing the so-called "deadman's statute." Section 90.602, Florida Statutes, provides:

    
    

    1. No person interested in action or proceeding against the personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person . . . shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased . . . at the

       time of the examination.

    2. This section does not apply when:

       1. A personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person is examined on his own behalf regarding the oral communication.

       2. Evidence of the subject matter of the oral communication as offered

          by the personal representative, heir- at-law, assignee, legatee, devisee, or survivor of the deceased person . . .

          
          

11. This statute does not operate to bar testimony respecting communications made to the Petitioner by her deceased husband. This is not an action or proceeding against the personal representative, heir-at-law, assignee, legatee, devisee, or survivor of the deceased. The provision respecting admissibility of evidence in administrative proceedings is set out Section 120.58(1)(a), Florida Statutes. It provides that relevant and material evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible. Hearsay evidence can be used solely for the Petitioner's testimony respecting statements made by her deceased husband is hearsay, but it supplements other evidence respecting work performed by the decedent in the days prior to his death. While the evidence is admissible, it does not serve to establish any causal connection between the deceased's work and his death.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That the Administrator of the Florida Retirement System enter a final order denying the application of Linda Orlando for in-line-of-duty death benefits.

RECOMMENDED this 27th day of December, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1982.

COPIES FURNISHED:

Robert B. Scharf, Esquire 1700 East Las Olas Boulevard Suite 101

Fort Lauderdale, Florida 33301

Stanley M. Danek, Esquire Department of Administration Division of Retirement

2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303

Mr. A. J. McMullian, III Director, Division of Retirement Department of Administration

530 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 82-001246

Orders for Case No: 82-001246