Judges: DIANE A. GRUBBS
Agency: Department of Management Services
Latest Update: Dec. 04, 1984
Summary: Widow was not eligible for disability benefits if employee husband dies before retiring. Petition is recommended to be denied.
84-2111STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BEVERLY ZIER, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2111
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for hearing on October 16, 1984, in Tavares, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane A. Grubbs.
APPEARANCES
For Petitioner: Beverly Zier
Post Office Box 2252 Leesburg, Florida 32748
For Respondent: William A. Frieder, Esquire
Division of Retirement Cedars Executive center 2639 North Monroe Street Suite 207, Building C Tallahassee, Florida 32303
The issue is whether the disability retirement date of petitioner's husband, David Zier, was prior to the date of his death.
The petitioner testified on her own behalf and presented three exhibits. The respondent presented the testimony of one witness, Charles E. Huffman, and presented two exhibits, one of which was a composite consisting of the deposition of David Ragsdale and three attached exhibits. The parties filed proposed findings of fact and conclusions of law as provided by statute. All proposed findings of fact and conclusions of law have been considered. To the exent that the proposed findings and conclusions submitted are in accordance with the findings and conclusions submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence. Documents and materials submitted with the proposed findings or attached to responses to preliminary orders that were not introduced into evidence at the final hearing in this cause have not been considered.
FINDINGS OF FACTS
Petitioner, Beverly Zier, is the widow and named beneficiary of David
G. Zier, a former employee of Marion Correctional Institution and member of the Florida Retirement System with less than 10 years of creditable service.
On April 23, 1982, while returning home from work David G. Zier was involved in an automobile accident. As a result Mr. Zier was taken to the hospital where it was discovered that he had an inoperable brain tumor.
On April 24, 1982, Mr. Zier's employer was informed that Mr. Zier would never return to work.
In a letter dated April 26, 1982, Dr. Gregory J. Howell opined that Mr. Zier was totally disabled. This letter was given to Mr. Zier's employer on April 27, 1982.
On April 30, 1982, Mr. Zier's application for disability retirement and accompanying physicians' reports were submitted to the personnel office at Marion Correctional Institution. The Application for Disability Retirement contains a space in which the employee is to indicate the date his services will terminate. Mr. Zier did not fill-in a termination date.
On May 4, 1982, Mr. Zier completed Form FST-11o electing Option 2. The election of option form indicates a termination date of May 31, 1932.
On May 5, 1982, Mr. Zier died.
On May 6, 1982, the Division of Retirement (Division) received Mr. Zier's application for disability retirement with accompanying documents. On the same date the Division was notified of Mr. Zier's death.
The Statement of Disability by Employer was received the Division with the application for disability retirement. The statement indicated that Mr. Zier's employment would terminate on May 31, 1982.
The final earnings certified by the employer show that Mr. Zier was paid through May 5, 1982, the date of his death, was placed on sick leave from April 24 through May 5, 1982, through Mr. Zier did not specifically request sick leave.
On May 18, 1984, the Division notified petitioner letter of its intention to reject Mr. Zier's application for disability retirement due to Mr. Zier's death prior to his effective retirement date. Petitioner timely filed a petition an administrative hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. section 120.57(1), Florida Statutes.
The issue in this case is whether David Zier's retirement date preceded the date of his death. The petitioner asserts that because all the necessary documents were submitted to the employer on April 30, 1982, with the
intent that Mr. Zier be retired immediately, Mr. Zier's retirement date should be May 1, 1982. However, this argument fails to recognize that it is not the employee who determines the disability retirement date. section 121.091(4)(a) , Florida Statutes, provides:
The disability retirement date shall be the first day of the month which coincides with or next follows the
date the administrator approves payment of disability retirement benefits to the member.
The disability retirement date is determined from the date the administrator approves payment of disability benefits; it is not determined by employee choice or by the date the employee actually became totally disabled.
In this case the application for disability retirement was not received by the Division until May 6, 1982. Thus, the earliest possible disability retirement date would have been June 1, 1982, the first day of the following month. However, because Mr. Zier died prior to the approval of payment of disability retirement benefits, thus prior to his disability retirement date, his employment was terminated by death, not by retirement. Rule 22B-4.10(6), Florida Administrative Code, provides:
If a member should die prior to his effective date of retirement, his employ ment will be considered to have terminated by death (even if the death occurred after his last day of employment), and benefits shall be payable in accordance with the pro visions of Section 22B-4.08.
Rule 22B-4.08(1) provides:
If the death of a member occurs other
than in the line of duty prior to the comple tion of 10 years of creditable service,... the member's designated beneficiary shall receive a refund of the member's accumulated contributions.
RECOMMENDATION
Based on the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying the
petition of Beverly Zier for the institution of disability retirement benefits upon the account of David G. Zier, deceased, and pay to Beverly Zier, as the named beneficiary of David G. Zier, the amount of David G. Zier's accumulated contributions, in accordance with Rule 22B-408(1) Florida Administrative Code.
DONE and ENTERED this 15th day of November, 1984 in Tallahassee, Leon County, Florida.
DIANE A. GRUBBS
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 15th day of November, 1982.
COPIES FURNISHED:
Ms. Beverly Zier Post Office Box 2251
Leesburg, Florida 32748
William A. Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207- Building C Tallahassee, Florida 32303
Nevin G. Smith Secretary
Department of Administration
435 Carlton Building Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
BEVERLY ZIER,
Petitioner,
vs. CASE NO. 84-2111
DOR CASE NO. DR84-8
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
It is hereby ordered that the Recommended Order of the Hearing Officer rendered November 15, 1984, be and the same is hereby adopted as the Final Order in this cause including the Findings of Fact and Conclusions of Law found therein.
DONE and ORDERED in Tallahassee, Florida, Leon County, this 3rd day of December, 1984.
ANDREW MCMULLIAN III
State Retirement Director
FILED with the Clerk of the Division of Retirement this 4th day of December, 1984.
COPIES FURNISHED:
Ms. Beverly Zier Post Office Box 2251
Leesburg, Florida 32748
William A. Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207 - Building C Tallahassee, Florida 32303
Mr. Nevin G. Smith Secretary
Department of Administration
435 Carlton Building Tallahassee, Florida 32301
Docket for Case No: 84-002111
Orders for Case No: 84-002111
| Issue Date |
Document |
Summary |
|
Dec. 04, 1984 |
Agency Final Order
|
|
|
Nov. 15, 1984 |
Recommended Order
|
Widow was not eligible for disability benefits if employee husband dies before retiring. Petition is recommended to be denied.
|
