STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOANNE (BETTY) FOX, )

)

)

Petitioner, )

)

vs. ) CASE NO. 84-3147

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 28, 1984, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Louis Weinstein, Esquire

6011 Rodman St.

Hollywood, Florida 33023

For Respondent: Marc J. Gold, Esquire

Hospital Legal Counsel

South Florida State Hospital 1000 South West 84 Avenue

Hollywood, Florida 33025 ISSUE

The issue presented herein is whether or not Petitioner, Joanne (Betty) Fox, abandoned her position of employment as a UTR shift supervisor and resigned from career service on Monday, December 12, 1983 at 8:00 a.m.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

1. During times material herein, Petitioner was employed as a Unit Treatment Shift (UTR) Supervisor at South Florida State Hospital, Hollywood, Florida. Her duties included setting up medications; dispensing and administering medications, charting medications and taking patients from the ward for meals. Petitioner also performed related duties such as writing medical reports and keeping the ward areas clean.

2. On October 3, 1980, Petitioner was injured while on duty at South Florida State Hospital. Petitioner suffered a back injury which required two back operations during 1981 and 1982 (laminectomies). Petitioner suffered a previous back injury during 1976, a herniated disc and, as a result thereof, had two disc operations wherein discs were removed.

   
   

3. Petitioner remained under the treatment and care of Dr. George Crane until December 6, 1983. Dr. Crane determined that Petitioner had reached maximum medical improvement on August 11, 1983 and confirmed that Petitioner was employable as of approximately March, 1983. That release was confirmed by letter dated October 20, 1983 from Dr. George Crane, M.D. Prior to that time, Petitioner had been determined unable to sit, stand, lift, push or carry objects without severe pain. Also, during the period 1980 when she was injured through the time of her release by Dr. Crane, Petitioner had endured substantial pain requiring that she spend a great deal of her time in bed. She had, on occasion, left groceries in the store due to excruciating pain. (Testimony of Petitioner)

   
   

4. Although Dr. Crane considered that Petitioner was employable as early as March of 1983, he suggested during August of 1983 that Petitioner attend a one week's visit to the Pain Center in Miami, Florida. Evidence reveals that while Dr. Crane suggested that Petitioner visit the Pain Center, he did not consider that her condition rendered her unemployable. (Petitioner's Exhibit 3)

   
   

5. Bradford Drake, 1/ a Benefits Coordinator employed by Respondent as a Personnel Technician I, contacted Dr. Crane's office and confirmed his release of Petitioner to return to work. Armed with that confirmation, Mr. Drake contacted Petitioner and advised her of Dr. Crane's release of her to return to work.

   
   

6. By letter dated December 7, 1983, Petitioner was advised by Barbara Nickels, Personnel Officer, that "This will serve to officially inform you that you are to return to your UTR Shift Supervisor position, Dade/Collier Ward, on Monday, December 12, 1983 at 8:00 a.m. Failure to report to your position after three days from December 12, 1983 will be considered abandonment of position and resignation from the State of Florida career service at South Florida State Hospital. This action is pursuant to the State of Florida rules and regulations, Section 22A-7.10(2)." (Respondent's Exhibit 4) Additionally, by letter dated December 19, 1983, Petitioner was advised by Robert A. Burton, hospital Administrator, that effective the close of business December 19, 1983, Petitioner was considered to have abandoned her position and resigned from the State of Florida career service at South Florida State Hospital.

   
   

7. Petitioner was familiar with Respondent's Employee Handbook including the Employee Standards of Conduct and had received a copy of HRS Pamphlet 60-1 on May 18, 1979. Contained in that pamphlet is an employee policy concerning absences. An employee absent for three consecutive days without authorization may be considered to have abandoned that position and resigned. Respondent's Exhibits 1 and 2 and Section 22A-7.10(2), Florida Administrative Code.

   
   

8. During January of 1984, Petitioner was under the care and treatment of Dr. Paul Wand, a neurologist. Respondent, through employees of the personnel office, was not familiar with the treatment procedures to Petitioner by Dr. Paul Wand.

   
   

9. To allow the Petitioner the benefit of doubt, Mr. Drake arranged for Dr. Crane to see the Petitioner during December of 1983 and Dr. Crane noted no change in the Petitioner's maximum medical improvement and considered her

   employable at that time. (Testimony of Bradford Drake and report of Petitioner's office visit to Dr. Crane dated December 6, 1983, Petitioner's Exhibit 3) In an instance where an employee, as Petitioner, tenders documentation that she is being treated by another physician, such a physician is called and the treatment is verified by staff and the personnel office of Respondent. In such instances, latitude is given that employee to tender documentation which would be considered in determining whether or not an employee is employable based on the opinion of the "other" physician. However, as noted earlier herein, Petitioner was primarily treated by Dr. Crane.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

12. Competent and substantial evidence was offered herein to establish that the Petitioner was absent from her position as a UTR Shift Supervisor with Respondent for a period in excess of three consecutive days without authorization. As a result, it is concluded that Petitioner abandoned her position of employment as a UTR Shift Supervisor and resigned her employment from the career service system.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended:

That the Secretary of the Department of Administration enter a Final Order finding that, based on Petitioner's failure to report to her position as UTR Shift Supervisor after three days from December 12, 1983, Petitioner abandoned her position of employment and resigned from the State of Florida career service at South Florida State Hospital. 2/

RECOMMENDED this 11th day of December, 1984, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 11th day of December, 1984.

ENDNOTES

1/ Mr. Drake was tendered and received as an expert herein on personnel matters.

2/ Based on this recommendation, Petitioner's prayer for relief and reinstatement to her position is denied.

COPIES FURNISHED:

Louis Weinstein, Esquire 6011 Rodman Street

Hollywood, Fl. 33023

Marc J. Gold, Esquire Hospital Legal Counsel

South Florida State Hospital 1000 South 84 Avenue Pembroke Pines, Fl. 33025

Nevin Smith Secretary

Department of Administration Carlton Building Tallahassee, Florida 32301

Docket for Case No: 84-003147

Orders for Case No: 84-003147