STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3893

)

VICTORIA VanNEST, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing in West Palm Beach, Florida, on February 19, 1988, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Peggy G. Miller, Esquire

111 Georgia Avenue

West Palm Beach, Florida 33401

For Respondent: Joseph D. Lee, Esquire

Servico Centre East

1601 Belvedere Road, Suite 300-400 West Palm Beach, Florida 33408

ISSUE

Whether or not Respondent has abandoned her position as a Career Service employee.

BACKGROUND AND PROCEDURE

Petitioner presented the oral testimony of Terry Brown, Jo Ann Register, and Tony DeJosias, identified eight exhibits, and had seven exhibits admitted in evidence. Respondent testified on her own behalf and had admitted one exhibit. No transcript was provided. HRS' proposed findings of fact have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes. Respondent did not file any proposals.

FINDINGS OF FACT

1. Beginning at least on August 19, 1985 Respondent was a Career Service employee of the Department of Health and Rehabilitative Services (HRS) in West Palm Beach, Florida. On April 21, 1987, Respondent was operating a complicated telephone system for HRS when she tripped and fell flat on her face, injuring her head and back. She was taken to a hospital, and after a series of referrals, remained under the care of Dr. Charles Curtis, D.O., due to residual

   concussion and back problems. Her employer was aware of all the foregoing facts and initially paid Respondent workers' compensation and medical benefits, pursuant to Chapter 440, Florida Statutes.

   
   

2. On July 1, 1987, employees of the State of Florida, Department of Insurance, Division of Risk Management (HRS' workers' compensation administrator located in Tallahassee, Florida) terminated Respondent's benefits under Chapter 440, Florida Statutes, because they believed Respondent was then able to return to work. The notification form for this termination was not completed by Risk Nanagement until July 15, 1987, and was not received by Respondent or her West Palm Beach HRS supervisors until some time after that date.

   
   

3. Initially, Dr. Curtis had been an "authorized" physician as that term is understood under Chapter 440, Florida Statutes, and its case progeny. There is no evidence in this record that he was ever specifial1y "de-authorized," although evidence was presented to show that Risk Management's rehabilitation associate wanted Respondent released by Dr. Curtis to return to work at the West Palm Beach HRS office. Indeed, local HRS and Tallahassee Risk Management consistently treated Dr. Curtis as the attending or treating physician.

   
   

4. Prior to her April 21, 1987 accident, and while employed full-time with HRS, Respondent had worked part-time for her husband, a jeweler, at five dollars per hour. The regularity or duration of this work was never established, but the pre- accident nature of her part-time work was mostly setting up displays and occasional retail selling of jewelry. After the April 21, 1987 accident at HRS, and at least as early as July 2, 1987 (the day after workers' compensation benefits were terminated), Tony DeJosias, an insurance investigator hired by Risk Management, observed Respondent driving a car and at work again waiting on DeJosias and other customers in her husband's jewelry store. Mr. DeJosias' observations of Respondent were periodic throughout July and August, 1987, but did not specifically cover August 5, 6, and 7, 1987, which are the dates HRS ultimately required that Respondent appear for her regular employment with them. Respondent's work in the jewelry store as observed by Mr. DeJosias involved bending, lifting a thick, heavy jewelry catalogue, and brief operation of an engraving machine, while seated. Mr. DeJosias observed that the Respondent showed no visible signs of pain or discomfort, but Mr. DeJosias has no medical background. Respondent admits that in July and August of 1987, she was in her husband's store to take advantage of the store's air conditioning because air conditioning helps her headaches and air conditioning was not available to her at her home. Her HRS office in West Palm Beach was also air conditioned. Respondent represented that she also wished not to be alone and wished to be in the presence of her husband because she suffered dizzy spells and would occasionally lose her balance. Respondent was not paid wages by her husband during July and August, 1987.

   
   

5. Terry Brown, Respondent's highest ranking local supervisor, wrote Respondent a letter dated July 20, 1987, that stated,

   
   

   We have been advised by the Division of Risk Management that your Worker's [sicj Compensation benefits have been suspended effective July 1, 1987. *This letter is to advise you that you must report to work immediately, but no later than 8:00 a.m.

   Monday, July 27, 1987.* If you do not report

   to work on July 27, 1987, it may appear that you have abandoned your position. (Emphasis supplied between *)

   
   

6. Respondent received the July 20, 1987 letter on July 22, 1987. She sought out Dr. Curtis who was then unavailable. In his absence, she was referred by personnel in Dr. Curtis' office to a Dr. Robert C. Greer IV, D.O., who was "covering for Dr. Curtis." Dr. Greer wrote a July 23, 1987 letter to Terry Brown which, referring to Respondent, stated in pertinent part,

   
   

   At the present she presents with syptoms [sic] consistent with lost concussion syndrome. She continues in therapy with another physician.

   She is not yet able to return to work.

   
   

7. On July 31, 1987, Terry Brown caused Respondent to be sent a certified letter which she received on August 1, 1987. That second letter read in pertinent part:

   
   

   On July 20, 1987, you were advised to report to work no later than Monday, July 27, 1987 and that failure to report may constitute abandonment. You contacted this office and stated that due to medical reasons, you could not return to work. Subsequent to your telephone call, we received your doctor's statement which also stated you could not return to work.

   Our personnel office contacted the Division of Risk Management regarding your doctor's statement and they informed us that this statement was not acceptable.

   In view of the above, this is to advise you that you must report to work on Wednesday, August 5, 1987 at 8:00 a.m. Failure to report to work on this date will constitute abandonment of your position.

   
   

8. Respondent recalls that she had a telephone conversation with someone at the local HRS office but could not say when. This phone conversation probably was the unspecified "contact" referred to in the first paragraph of the July 31, 1987 letter. Terry Brown recalls personally speaking with Respondent one time on the telephone, but whether he did so before or after the July 31, 1987 letter is not clear. It is more probable from the evidence of record as a whole that Mr. Brown spoke with the Respondent after she had received his July 31, 1987 letter, because Brown recalls telling Respondent that she needed to go to the physician authorized by Risk Management (Dr. Curtis) and that she needed to talk to one of the local HRS personnel specialists, and because Respondent stated that she called an HRS supervisor (probably Terry Brown) within a week after receiving the July 31, 1987 letter. Respondent testified that she told whoever she talked to on the phone in the period after the July 31, 1987 letter, that she was not abandoning her job but that whoever she spoke to on the phone at the local HRS office at that time never informed her that Dr. Greer's letter was insufficient. This latter representation of Respondent is directly refuted by her admitted receipt of the July 31, 1987 letter, which clearly states that HRS found Dr. Greer's letter unacceptable. After observing the candor and

   demeanor of the respective witnesses, after considering all the evidence, and after giving Respondent the benefit of the doubt with regard to her alleged memory problems resulting from the April 21, 1987 fall, I find credible Mr.

   Brown's testimony that he orally explained to Respondent that she must have an excuse from Dr. Curtis in order to avoid a presumption of abandonment.

   
   

9. Terry Brown and Jo Ann Register, a local HRS personnel officer, testified credibly and consistently that Dr. Greer's letter would not have been considered sufficient by them as a doctor's excuse for absence from work for sick leave even if Risk Management in Tallahassee had not raised the workers' compensation issue of Dr. Greer being a physician unauthorized by the employer pursuant to Chapter 440, Florida Statutes. Dr. Greer's letter would have been deemed by Brown and Register to be insufficient to grant extended sick leave because it did not specify that Dr. Greer was treating (attending) Respondent and because it did not specify a date when Respondent would be able to return to work. The failure of Brown and Register to ever verify Dr. Greer's relationship with Dr. Curtis or to initiate contact with Dr. Curtis to see if Dr. Curtis had, in fact, released Respondent to return to work may be significant in terms of workers' compensation benefit entitlement but in light of the law to be applied in this case, it is not. (See the following Conclusions of Law.) Brown and Register agree they would have accepted an excuse from Dr. Curtis, who was still understood to be the authorized/ treating/attending physician, if the note had said when the Respondent could return for work. Such a note was not presented by the Respondent prior to the ultimatum date of August 5, 1987.

   
   

10. Respondent had accumulated annual and sick leave available for her use on August 5, 6, and 7, 1987, but she admittedly did not request to use any leave of any kind for those dates. Respondent also did not report for work on any of those days.

    
    

11. By letter of August 10, 1987, in reliance on Rule 22A-7.010(2), Florida Administrative Code, HRS separated Respondent from the Career Service, upon the following terms:

    
    

    You were scheduled to work August 5, 1987, as advised in our letter to you dated July 31, 1987. You failed to report for work and you did not have approved leave for your absence.

    For purposes of abandonment, the three consecutive workdays are August 5, 6, and 7,

    1987.

    Based on the above information, we must now reasonably assume that you are no longer interested in your position and therefore we are processing your resignation.

    
    

12. Risk Management employees had informed Jo Ann Register by phone prior to August 10, 1987 that there was reason to believe Respondent was working full- time. Risk Management confirmed these oral representations in a letter to the West Palm Beach HRS office mailed from Tallahassee on August 10, 1987. This letter is an admissible business record. However, even if it could be considered hearsay for purposes of the facts asserted therein, it would still be admissible to show the state of mind of local HRS personnel with regard to the issue of abandonment. Although Mr. Brown and Ms. Register apparently did not know about Mr. DeJosias' ongoing surveillance of Respondent until shortly before formal hearing, they had some knowledge that Respondent was working before August 10, 1987 and this knowledge constituted an element in their decision to

    interpret Respondent's nonappearance on August 5, 6, and 7 as "abandonment" or as evidence that Respondent was "no longer interested in her position" as set forth in HRS' August 10, 1987 letter to Respondent.

    
    

13. Respondent testified that she has never yet been released for work by Dr. Curtis, whom she represents that she continues to see professionally every two weeks, and that she has not been released for work by an unnamed clinical psychologist who apparently only performed a one time evaluation.

    
    

14. Although not admitted as an exhibit at hearing, the undersigned is entitled to take official recognition of all pleadings within the file of the Division of Administrative Hearings, i.e., the Respondent's petition, dated August 19, 1987, has attached to it what purports to be an unsigned but stamped excuse from a Charles E. Curtis, D.O., P.A., stating,

    
    

    As of this date Mrs. Van Nest has been unable to work 4-30-87/8-19-87 due to a work related injury.

    
    

    Whether or not that note can be interpreted to refute or support Respondent's testimony that she has never been released by Dr. Curtis is subject to debate, but it clearly may be inferred that the earliest date Respondent's supervisors could have received this excuse was August 19, 1987, two weeks after their ultimatum date of August 5, 1987 when Respondent failed to report to work and further that Respondent clearly had knowledge that a note of this kind was required from Dr. Curtis. Respondent put on no evidence that Dr. Curtis was unavailable to provide such a note between August 1 (the date she received the second ultimatum) and August 5, 1987. There is no evidence that Dr. Curtis knew about Respondent's work at her husband's store.

    
    

15. Respondent testified that at all times relevant and even at the time of formal hearing, she had both residual headaches and balance problems. The balance problems were partially refuted by the credible observations of Tony DeJosias.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has juris-diction of the parties and subject matter of this cause. See, Section 120.57(1), Florida Statutes.

    
    

17. The parties attempted to try this cause as if it were a workers' compensation claim arising under the intricate provisions of Chapter 440, Florida Statutes. It is not. Issues that are commonly litigated in a forum presided over by a deputy commissioner, including but not limited to legal doctrines of "sheltered employment," similarity of pre- and post-accident employment; part-time employment "for purposes of raising the assigned average weekly wage" or for prolonging "temporary disability" or for testing post- accident employability and thereby determining the degree of "physical impairment" and "wage loss" or whether or not Respondent had ever achieved "maximum medical improvement/recovery"; or whether Respondent can recover medical benefits for Dr. Greer's office visit upon "referral," "consultation," or "emergency" theories; or whether surveillance films as evidence of malingering are contrary to state criminal statutes, do not impinge to any significant degree on the only issue in this cause, which is whether or not Respondent may be found to have abandoned her employment within the terms of Rule 22A-7.010 (2), Florida Administrative Code.

18. Rule 22A-7.010(2), Florida Administrative Code, provides:

    
    

    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 . . . .

    
    

19. This portion of the rule creates a presumption that an employee who is absent from his or her job for three days has given up his or her job. The presumption is a rebuttable one. Claire M. Penney v. Department of Insurance, DOAH Case No. 85- 1530 (DOA January 31, 1986). It is intended to strike a "fair balance" between "swift replacement of ineffective public employees," and "job security and retention." Hadley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982).

    
    

20. The presumption created by the abandonment rule is a rebuttable presumption. An employee who has been deemed to have abandoned his position is entitled to a "review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position," Rule 22A-7.010(a)(2), Florida Administrative Code.

    
    

21. The reasonable scheme established by the abandonment rule is done considerable violence in circumstances where an employer knows that the absence is not caused by an intent to resign, but uses the rule as a basis of taking "action . . . against an employee to separate him from the Career Service." See, Section 110.203(22), Florida Statutes. Although an employer who has actual knowledge that the reason for the employee's absence is caused by an inability to be physically present is both irrational and unreasonable to assume under the abandonment rule that that employee has resigned, a state employer nonetheless is entitled to hold its Career Service employees to a literal interpretation of the Career Service rules under which they are employed.

    
    

22. The manner in which employees may be absent with leave is governed by Chapter 22A-8, Florida Administrative Code. In particular, Rule 22A-8.002(5), Florida Administrative Code, provides in pertinent part:

    
    

    Any leave of absence with or without pay shall be approved prior to the leave being taken, except in the case of an emergency where the employee must be absent prior to receiving approval from proper authorities for the absence.

    1. When prior approval cannot be obtained by the employee due to such emergencies, the agency head shall take one of the following actions:

       1. Grant the employee leave with pay.

       2. Place the employee on leave without pay for the absence, or

       3. *If the absence is for three consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.

    2. If an employee's request for leave of absence is disapproved and the employee takes

       unauthorized leave, the agency head shall place the employee on leave without pay and after an unauthorized leave of absence for three consecutive workdays shall consider the employee to have abandoned the position and resigned from the Career Service.* (Emphasis supplied between *)

       
       

23. Pursuant to this Rule, employees must generally obtain prior approval for ANY leave of absence unless the absence is caused by an emergency.

    
    

24. In addition to the general provision of Rule 22A- 8.002(5), Florida Administrative Code, Rule 22A-8.011(2), Florida Administrative Code, governs the use of SICK leave. This rule provides, in pertinent part:

    
    

    1. Use of earned sick leave--

       1. Use of sick leave shall not be authorized prior to the time it is earned and shall only be used with the

          approval of the proper authority within the agency . . . .

       2. Sick leave shall be authorized for an employee's personal illness or injury:

    1. Beginning on the first day of absence only for the following purposes, as verified in writing by medical certification from the

       *attending* physician:

       a. Treatment of a diagnosed condition requiring continuing and intermittent therapy or medical treatment;

       * * *

    2. Beginning on the third consecutive day of absence for the purposes listed below.

       Any period of absence on the first day due to illness or injury shall be counted as the first day of an absence in determining the consecutive days of such absence:

       1. Other personal illness or a non-job connected injury;

    * * *

    1. Notification of absence due to illnes, injury . . . shall be given to the appropriate supervisor by the employee or the employee's representative as soon as possible on the first day of absence.

    2. *Upon request an employee shall be allowed to use* accrued sick leave credits as provided in this section:

    1. *Prior to authorizing an employee to use sick leave credits, the agency head shall require the employee to certify* that the absence was for reasons which are justified and provided in Section 22A-8.011(2)(b) and (c).

    2. *After 3 workdays of absence* in any 30 calendar day period, *the agency head may require a medical certification* of the

       employee's absence(s) due to illness or injury before authorizing any additional use of leave credits by the employee.

       * * *

       4. After 10 consecutive days of absence, the *employee shall submit* to the agency head a medical certification from the *attending* physician before any additional use of sick leave credits can be authorized for the employee. If the employee continues to be

       absent, *the agency head shall require* further medical certification for each 30 consecutive days of absence, unless the agency head has personal knowledge that the employee is hospitalized and unable to return to work.

       *Such medical certification must state that the employee is unable to perform the regularly assigned duties if sick leave is to be authorized by the agency head.*

       * * *

       6. An employee who, upon request by the agency head, refuses to comply with these rules shall not be eligible to use accrued sick leave credits, and any absence from work shall be handled in accordance with Section 22A-8.002(5). (Emphasis supplied between *)

       
       

25. Rule 22A-8.011(2)(a), Florida Administrative Code, requires that an employee obtain approval for the use of sick leave but it does not specifically provide that prior approval must be obtained. When read in conjunction with Rule 22A-8.002(5), Florida Administrative Code, however, prior approval is required except where an employee is absent due to illness or injury.

    
    

26. There was no emergency in this Respondent's situation. If it were not presumed to be abandonment, her situation could only qualify as sick leave (illness or injury). Respondent admits no request for a specific type of leave was ever made, but in a case of genuine illness or injury, use of accrued sick leave credit is a matter of right at least through the third day. The prerequisite for sick leave through the third day is notice and there is no requirement that any request be granted before leave begins. See, Rule 22A- 8.011(2)(d). However, for leave after the first three days other rule requirements must be met before further sick leave is authorized.

    
    

27. The chronology of the events of this case is as follows: Respondent suffered a compensable job injury for which the State paid her workers' compensation and medical benefits up until July 1, 1987. Thereafter, Respondent was notified to return to work. Through writing by a physician, who was admittedly not in regular attendance upon her, and by personal telephone calls to her local MRS office, Respondent represented that she had not abandoned her Career Service position but remained under the care of a physician and was physically unable to return to her regular employment. Thereafter, HRS notified the Respondent that her medical excuse was unacceptable, that an excuse from a specific doctor, the attending physician, Dr. Curtis, would be required, and that if she did not return to work on August 5, 1987, she would be deemed to have abandoned her position anyway. At that point, Respondent did not report to work, did not submit the required attending physician's excuse, and did not request sick leave, annual leave, or disability leave. Indeed, she never

    returned to work. Prior to writing the termination letter of August 10, 1987, local HRS supervisors were under the impression that Respondent was able to work and had obtained full-time employment elsewhere. Indeed, it appears that whether she was being paid or not, Respondent was performing all of her old,

    pre-accident part-time jewelry selling job duties throughout the period she claimed she could not return to work at her full-time secretarial duties. It was not until at least August 19, 1987, two weeks after the final ultimatum date, that Respondent submitted to her employer, HRS, an unsigned excuse on the stationery of her attending physician, Dr. Curtis, that she had been unable to work from April 30, 1987 to August 19, 1987, but there is no evidence in this record that Respondent's secretarial duties were any more difficult or any different in kind than her physical actions observed by Mr. DeJosias or that Dr. Curtis was aware of her jewelry-selling activity.

    
    

28. Unlike the civil rules, sick leave does count the first and last day of each absence, but it does not count intervening non-work days. See, Rule 8.002(5)(b)1., 2., Florida Administrative Code.

    
    

29. Certain dates in this case are significant to the law to be applied: For sick leave purposes, from July 1 (workers' compensation benefits terminate and the employer believes Respondent is able to work) to July 20 (first ultimatum letter) equals 14 days; from July 1 to July 27 (first unmet return to work ultimatum date) equals 19 days; from July 1 to July 31 (second ultimatum letter) equals 23 days; from July 1 to August 5 (second unmet return to work ultimatum date) equals 26 days; from July 27 (first unmet return to work ultimatum date) to August 5 (second unmet return to work ultimatum date) equals

    8 days; from July 31 (second ultimatum letter) to August 5 (second unmet return to work ultimatum date) equals 4 days; from August 1 (Respondent's receipt of second ultimatum letter) to August 5 (second unmet return to work ultimatum date) equals 3 days.

    
    

30. An employee who has taken sick leave must certify that he has done so on account of "personal illness or injury," Rule 22A-8.011(2)(b), Florida Administrative Code, or for some other reason recognized by the rule. If the absence has lasted more than three days, and prior to authorizing further sick leave, the employer may, and, if the absence has exceeded 10 consecutive days the employer must, require medical certification from the attending physician as well. The rule language is compelling that the "employee shall submit . . . a medical certification" if required, not that the employer bears the initiative to seek out the physician directly. The word "certification" also presupposes written physician assurance, and probably intends that the attending physician's signature appear on the written excuse. See, Rule 22A-8.011(e)2. and 4., Florida Administrative Code.

    
    

31. It is not necessary to speculate on whether, under other circumstances, Dr. Greer's letter could be found to have fulfilled Respondent's certification obligations under the Career Service rules so as to avoid the presumption of abandonment, because Respondent admits that Dr. Curtis was her attending physician and that Dr. Greer never treated her. It is not necessary to speculate on whether the August 19 note from Dr. Curtis' office includes a date Respondent could return to work or was "certified" because it was not submitted timely to HRS.

    
    

32. HRS was within its rights in its request for attending c physician certification after 10 consecutive work days of absence for personal illness or injury, especially in light of information Respondent was working, and more especially, as it turned out, in light of the fact that Respondent truly was

    working. By whatever method one calculates 10 days' consecutive absence, Respondent has had the benefit of the doubt. She was apparently never asked for a personal certification, but she was asked for a certification by Dr. Curtis, which was not forthcoming before the August 5, 1987 deadline. Respondent did not demonstrate Dr. Curtis' unavailability between August 1 (date she received the July 31, 1987 letter), and August 5, 1987. Respondent did not return timely to work for three consecutive days, beginning August 5, 1987. Therefore, even by sick leave standards she was presumed to have abandoned her position. See, Rules 22A-8.002(5)(a)3. and 22A-8.011(2)(e)6.

    
    

33. Although resort to the abandonment rule is allowed only if an "employee . . . upon request by the agency head, refuses to comply with these rules," I do not find that the fact that the request for the attending physician's certification came from a local supervisor to whom such duties were delegated by the agency head instead of the request coming directly from the agency head, has any redeeming significance.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that HRS enter a Final Order that ratifies Respondent's

termination effective August 10, 1987, and

DONE AND ENTERED this 25th day of May, 1988, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1988.

Appendix to Recommended Order DOAH Case No. 87-3893

The following ccnstitute specific rulings upon Petitioner's propod findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes.

1-2. Covered in FOF 1.

1. Covered in FOF 2.

2. Covered in FOF 5-6.

3. Covered in FOF 6, 8, and 9.

4. Covered in FOF 4 as the undersigned recalls the stipulation.

5. Covered in FOF 10.

6. Covered in FOF 11.

7. Accepted but subordinate and unnecessary.

COPIES FURNISHED:

Peggy G. Miller, Esquire

111 Georgia Avenue

West Palm Beach, Florida 33401

Joseph D. Lee, Esquire Servico Centre East Suite 300-400

1601 Belvedere Road

West Palm Beach, Florida 33408

Adis M. Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Gregory Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-003893

Orders for Case No: 87-003893