STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2064

)

SHERMAN MERRILL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on September 8, 1983, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Douglas E. Whitney, Esquire and

Gerry Clark, Esquire Department of Health and

Rehabilitative Services

400 West Robinson, Suite 912 Orlando, Florida 32801

For Respondent: Sherman Merrill, pro se

5109 Liming Avenue

Orlando, Florida 32804 BACKGROUND

These proceedings began on March 17, 1983 when Respondent filed a letter with the Department of Administration stating that he wished to contest the determination by the Department of Health and Rehabilitative Services that he had abandoned his position as a career service system employee. On June 30, 1983 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. At the hearing Petitioner presented the testimony of witnesses and offered exhibits 1-

1. Exhibits 1-15 were received into evidence, but Respondent made meritorious hearsay objections to exhibits 7, 8, 11 and 14. Respondent presented his own testimony and offered exhibits A-H. Exhibits B, C, F and G were received into evidence.

   
   

   The parties were informed of their right to submit proposed findings of fact pursuant to Section 120.57(1)(b)4., Florida Statutes (1981). Neither party has filed any proposed findings.

   FINDINGS OF FACT

   
   

   1. Mr. Sherman Merrill began his position at Sunland Training Center in Orlando, Florida, on March 27, 1981 as an employee of the Department of Health and Rehabilitative Services. His last day on the job was August 7, 1982. As a behavioral program specialist, Mr. Merrill is responsible for supervising subordinate staff and for the behavior programming of HRS client residents in a residential living unit at the Sunland Training Center. He develops, monitors, and implements behavioral programs which are contained in each resident's habilitation plan. These plans are designed to eliminate inappropriate behavior and teach daily living skills. Mr. Merrill's responsibilities are professional and managerial. They do not require strenuous physical activity.

      
      

   2. On August ,12, 1982 Noel F. Windsor, the Superintendent of the Sunland Center, granted Mr. Merrill a temporary leave from his responsibilities without pay pending a diagnosis and prognosis from Dr. Robert C. Mumby on Respondent's physical ability to perform his responsibilities. Respondent asserted that he was no longer able to work due to back pain. An appointment with Mr. Mumby was scheduled for Respondent on August 17, 1982. On August 11, 1982 Mr. Merrill's immediate supervisor, Ms. Sharon Blume, limited Mr. Merrill's responsibilities to eliminate lifting any weight under any circumstances including emergencies.

      
      

   3. Prior to examining Mr. Merrill Dr. Mumby requested permission to see Mr. Merrill's x-rays which had previously been taken of his back. Mr. Merrill refused the request and as a result Dr. Mumby cancelled the examination appointment. The Sunland Center then scheduled an appointment for Mr. Merrill to be examined by Dr. Bott on August 19, 1982. Mr. Merrill did not keep this appointment and it was rescheduled for August 25, 1982.

      
      

   4. The August 25, 1982 appointment was kept and as a result of that appointment Dr. Bott reported in his findings that Mr. Merrill was able to return to work with restrictions. 1/

      
      

   5. On October 15, 1982 HRS requested Respondent to return to work on October 19, 1982. He did not appear as requested. On October 25, 1982 Mr. Windsor wrote a letter to Respondent stating that he would continue to be carried in a leave without pay status until such time as Dr. Bott has evaluated the x-rays in relation to the examination conducted on August 25, 1982. The foregoing letter was sent to Respondent by certified mail, return receipt requested. It was later returned to the Department of Health and Rehabilitative Services as unclaimed after attempts to deliver it were made on October 26 and October 30. On November 19, 1982 a copy of the October 25, 1982 letter was sent to Respondent by certified mail, return receipt requested. HRS again requested a release of Respondent's earlier x-rays for review by Dr. Bott.

      
      

   6. On December 10, 1982 Mr. Windsor wrote to Respondent a letter which stated in part:

      
      

      In accordance with the recommendation by Dr. Paul Raymond, your family practice physician in Cresson, Pennsylvania, we have scheduled an appointment for you with Dr. William K. Bott, Orthopedic Surgeon, 87 West Underwood Street, Orlando, Florida 32806, on Tuesday, December 21, 1982 at 10:00 A.M.

      As you are aware, we made an appointment for you with Dr. Bott on August 19 which you did not keep, and again on August 25, 1982. After the examination of August 25, Dr. Bott advised this agency that you were able to return to work with restrictions. He also advised us that he would re-evaluate you after reviewing your x-rays. You refused to allow Dr. Bott to make x-rays, and you also refused to authorize the release of previously made x-rays.

      
      

      Enclosed for your information is a copy of Chapter 22A-8 of the Florida Personnel Rules and Regulations.

      
      

      Please be advised that all fees for this visit will be paid by Sunland Center.

      
      

      Mr. Merrill did not see Dr. Bott on December 21, 1982, but was examined by him on January 4, 1983.

      
      

   7. On February 15, 1983 Mr. Merrill was told to report to work on February 21, 1983. Mr. Merrill did not report as ordered, but instead requested another leave of absence without pay. This request was denied on February 22, 1983 on which date Mr. Merrill was notified that he was absent without leave and that if he did not report to work by February 23, 1983 he would be deemed to have abandoned his position and voluntarily resigned from the career service system pursuant to Section 22A-8.02, Florida Administrative Code.

      
      

   8. Mr. Merrill did not report for work within the time allowed, three consecutive days after February 21, 1983. Mr. Windsor wrote him a letter on February 25, 1983 which stated:

      
      

      As you were advised in our letter of February 22, 1983, your request for an additional six

      (6) months leave of absence has been denied. Further, you were notified in that letter that you were to report to your work station prior to 3:15 P.M., February 23, 1983.

      
      

      You were examined by Dr. William K. Bott on August 25, 1982 and released to return to restricted duty. You failed to do so. You were re-examined on January 4, 1983 by Dr. Bott, and again, released to return to your Behavioral Program Specialist duties with restrictions. He indicated that you are able to perform sedentary type duties, you should not do repeated activities, repeated lifting or pulling using the lift [(sic) should be "left"] upper extremity (copy of diagnosis attached).

      
      

      You were advised by our letter of February 15, 1983 to return to your duties at Sunland Center, February 20, 1983 at approximately 2:00 P.M., you telephoned Living Unit 1E and

      left the message that you would not be reporting to work on February 21. At approximately midnight on February 20, 1983, you presented yourself on the Living Unit 1E to review the Personnel Rules and Regulations. On February 21, 1983, you presented your immediate supervisor with a request for additional leave of absence and left the facility.

      
      

      On February 23, 1983 at 1:50 P.M., during a meeting with your supervisors, you advised Ms. Patricia L. Gleason, Resident Life Program Supervisor, and Ms. Sharon Blume, Resident Life Unit Supervisor and your immediate supervisor, that you would not be coming to work.

      
      

      As you have failed to report to work for three

      (3) consecutive days, we must assume that you have abandoned your position with Sunland Center.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

      
      

   10. Mr. Merrill is a member of the Career Service System. Section 110.205(1), Florida Statutes (1981).

       
       

   11. Section 22A-7.10(2)(a) and (b), Florida Administrative Code states:

       
       

       (2) Abandonment of Position --

       1. An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service. An employee who separates under such circumstances shall not have the right of appeal to the Career Service Commission; however, any such employee shall have the right to petition the Department of Administration for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

       2. Each employee separated under conditions of abandonment of position shall be notified in writing by certified mail, return receipt requested, and such notification shall include a statement as to the employee's right to petition the Department of Administration for a review of the facts. Such petition shall be made by the employee within 20 calendar days from receipt of the letter advising the

       employee of the action taken by the agency. The decision of the Department of Administration shall be final and binding on both the employee and the agency.

       
       

       As the party asserting the affirmative the Department of Health and Rehabilitative Services has the burden of proof in this proceeding. Department of Corrections v. Career Service Commission, So.2d, 8 FLW 2036 (Fla. 1st DCA August 10, 1983). This burden has been met here. The evidence unequivocally shows that Respondent was told to report to work on February 21, 1983 and that if he failed to so report he would be on unauthorized leave. Respondent did not report at that time and did not report for the following three consecutive workdays.

       
       

   12. There is no admissible evidence which contravenes the Department's prima facie case. As evidence of his continued inability to work Respondent presented at the final hearing a workers' compensation form authored by Dr. Farrar, dated February 21, 1983 which stated "No work". That form which is Respondent's Exhibit G was objected to as hearsay. The objection was sustained. No other evidence was provided to indicate that the Department has erroneously denied Respondent any continued period of leave to which he may be entitled. Respondent's reluctance to keep medical examination appointments, his reluctance to release his x-rays for examination, and his lack of candor at the final hearing create a strong inference of malingering. His absence from work from February 21, 1983 through February 23, 1983 is therefore unauthorized.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Administration enter a Final Order determining that Respondent Sherman Merrill has abandoned his position in the State Career Service System as a Behavioral Program Specialist.

DONE and RECOMMENDED this 16th day of December, 1983, in Tallahassee, Florida.

MICHAEL P. DODSON

Hearing Officer

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 16th day of December, 1983.

ENDNOTE

1/ The actual contents of Dr. Bott's report reflected on Petitioner's Exhibit 7 were objected to by Respondent as hearsay. That objection was sustained, however Petitioner's Exhibit 10, not objected to by Respondent, contains a summary of Dr. Bott's report.

COPIES FURNISHED:

Douglas E. Whitney, Esquire and Gerry Clark, Esquire Department of Health and

Rehabilitative Services Suite 912, 400 West Robinson

Orlando, Florida 32801

Sherman Merrill 5109 Liming Avenue

Orlando, Florida 32804

Daniel C. Brown, Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Nevin Smith, Secretary Department of Administration Carlton Building, Room 435 Tallahassee, Florida 32301

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

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

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

SHERMAN MERRILL,

Petitioner,

vs. DOA CASE NO. AB-83-15

DOAH CASE NO. 83-2064

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This matter is before the Department of Administration for entry of a Final order. This agency has reviewed the Recommended order of the hearing officer and the Exceptions to the Recommended order submitted by Sherman Merrill. Each of the exceptions to the recommended order filed by Mr. Merrill, specifically contained in numbered paragraphs (1) through (18) in the letter dated January 16, 1984, are rejected on the grounds that those exceptions constitute argumentation with respect to the credibility of the witnesses and resolution of factual disputes which are solely within the domain of the hearing officer.

The agency hereby adopts the Findings of Fact and conclusions of Law contained in the Recommended Order, attached hereto as Exhibit A, as the Findings of Fact and Conclusions of Law of this agency. Based thereon, it is ordered: that the action of the Department of Health and Rehabilitative Services in deeming Sherman Merrill to have abandoned his position on the facts of this case is hereby AFFIRMED.

So ordered this 3rd day of April, 1984, in Tallahassee, Florida.

Nevin G. Smith, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301 (904)488-4116

Certificate of Clerk

Filed in the official records of the Department of Administration this 6th day of April, 1984.

MARY KIO

Clerk

Clerk Copies furnished to: Douglas E. Whitney, Esquire

Jerry Clark, Esquire Sherman Merrill

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

DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

SHERMAN MERRILL, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

V. CASE NO. AZ-333

DOAH CASE NO. 83-2064

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Appellee.

/

Opinion filed September 26, 1985.

An Appeal from an Order of the Deportment of Administrative Division of Administrative Hearings.

Gene "Hal" Johnson, Tallahassee, for Appellant.

Douglas F. Whitney and Gerry L. Clark, Department of Health and Rehabilitative Services, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

MILLS, SMITH, L., and THOMPSON, JJ., CONCUR.

Docket for Case No: 83-002064

Orders for Case No: 83-002064