STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE LIND, )

)

Petitioner, )

)

vs. ) Case No. 00-4725

) DEPARTMENT OF LABOR AND EMPLOYMENT ) SECURITY, DIVISION OF WORKERS' ) COMPENSATION, BUREAU OF )

REHABILITATION AND MEDICAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 31, 2001, by video teleconference between Fort Lauderdale and Tallahassee, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michelle Lind, pro se

Post Office Box 290754 Davie, Florida 33329-0754

For Respondent: Elana Jones, Esquire

Department of Labor and Employment Security

Hartman Building, Suite 307 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to additional reemployment services from the Bureau of Rehabilitation and Medical Services. 1/

PRELIMINARY STATEMENT

Petitioner was injured in January 1997 while working for United Parcels Service (UPS). In December 1999, Petitioner applied to Respondent for reemployment services. In April 2000, Respondent denied Petitioner reemployment services based on its determination that Petitioner's employment with the Florida Department of Business and Professional Regulation (DBPR) constituted "suitable gainful employment" within the meaning of Section 440.491(1)(g), Florida Statutes, and Rule 38F- 55.009(5)(c), Florida Administrative Code. Petitioner timely challenged Respondent's determination, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the final hearing, Petitioner testified on her own behalf and presented the additional testimony of Kelly Jean Guzman, Charles Thome, and Philip A. Miles. Ms. Guzman and Mr. Miles are friends of Petitioner. Mr. Thome was, at all times pertinent to this proceeding, a UPS employee who was active in the union to which Petitioner belonged while she worked at UPS. Petitioner

offered 22 exhibits, 21 of which were accepted into evidence. Petitioner's Exhibit 9 was not admitted.

Respondent presented the testimony of Herman Radish, Eva-Lyn Facey, and Angel Ivan Miranda. Mr. Radish is an employee of UPS. Ms. Facey is a vocational counselor employed by Respondent.

Mr. Miranda is a vocational consultant employed by Respondent. Mr. Miranda was accepted as an expert in the areas of vocational rehabilitation, training, evaluation, and counseling. Respondent offered 3 exhibits, each of which was accepted into evidence.

A Transcript of the proceedings was filed on February 26, 2001. Each party filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed by UPS from July 1987 until her employment was suspended on February 10, 1997, for cause unrelated to the job-related injuries at issue in this proceeding. Following an investigation of the unrelated matter, UPS terminated Petitioner’s employment on February 19, 1997. At the time of her discharge, she was working a 40-hour week, was receiving full benefits, and was being paid at the rate of $19.97 per hour. Petitioner’s duties with UPS required her to drive a truck, load and unload trucks, and deliver packages.

2. On January 13, 1997, Petitioner sustained certain injuries on the job when she fell between a truck and a loading dock. Petitioner received medical treatment for her work-related injuries beginning February 12, 1997.

3. Dr. Bruce M. Berkowitz is an orthopedic specialist who treated Petitioner. On May 19, 1997, Dr. Berkowitz observed that Petitioner had multiple areas of discomfort that did not fit into specific orthopedic problems that he could treat. He discharged Petitioner from orthopedic care with a 3% whole person impairment rating based on painful organic syndrome as outlined by the Florida Impairment Rating Guide. Dr. Berkowitz recommended that Petitioner’s care be continued by a physiatrist (a doctor who specializes in physical medicine or physical therapy).

   Dr. Berkowitz also recommended that Petitioner not lift, carry, push, or pull objects weighing over 30 pounds, and that she not bend from the waist. Dr. Berkowitz saw Petitioner again on August 1, 1997, but he merely reiterated the findings and recommendations from May 19, 1997.

4. After Dr. Berkowitz discharged her, Petitioner received treatment from Dr. Scott D. Tannenbaum, a physiatrist. At the time of the final hearing, Petitioner continued to experience chronic pain, which she attributed to the injuries she sustained January 13, 1997.

5. At the time of the final hearing, Petitioner’s limitations as described by Dr. Berkowitz in May and August 1997 had not improved. Because of her physical limitations, Petitioner is unable to perform her former duties with UPS.

6. At the time of the final hearing, Petitioner was

   
   

   47 years old. She has no formal education beyond high school other than a computer-training course. She has no special training and no special marketable skills.

7. Petitioner was unemployed between February 19, 1997, and March 1998. Since March 19, 1998, Petitioner has been employed by the DBPR in an OPS 2/ clerical position that has no fringe benefits. In April 2000, Petitioner was earning $11.09 per hour. At the time of the final hearing, Petitioner was paid at the rate of $11.29 per hour.

8. In the fall of 1999, Petitioner applied to Respondent for reemployment services. The goal of this program is to return eligible injured workers to suitable gainful employment as soon as possible. The reemployment services program is a return-to- work program, not a retraining program. The program is voluntary, and must be initiated by the injured worker or by the worker's compensation carrier.

9. Section 440.491, Florida Statutes, defines suitable gainful employment to be:

   . . . employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earning at the time of injury.

   
   

10. In December 1999, Petitioner attended an orientation program and a training workshop pertaining to employability skills. She completed a formal application for services from Respondent, which included releases for medical and employment history.

11. A rehabilitation nurse reviewed Petitioner’s medical records and determined that Petitioner was able to return to work.

12. Thereafter, Eva-Lyn Facey, a vocational rehabilitation counselor employed by Respondent, was assigned Petitioner’s file to make sure that all needed information was provided.

13. Respondent typically explores three options for injured workers seeking reemployment services in the following descending order of preference. The first, and preferred option, is to place the injured worker with his or her former employer. If that option is not available, the next preferred option is on- the-job training for the injured worker. The last option is for full-time classroom re-training of the worker.

14. The preferred option was not available because Petitioner’s prior employment had been terminated for cause and because Petitioner was no longer physically able to perform her former job.

15. On April 6, 2000, Petitioner met with Ms. Facey. After that meeting, Petitioner’s application was complete and she had provided all information required by Respondent to determine whether option two or option three should be pursued.

16. After the application file was complete, Ms. Facey turned the file over to her supervisor 3/ who reviewed the file with Angel Ivan Miranda, a vocational consultant. The supervisor and Mr. Miranda determined that Petitioner's employment with DBPR constituted "suitable gainful employment" as defined by Section 440.491(1)(g), Florida Statutes. They further determined that Petitioner was not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code, which provides as follows:

    (5) Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation:

    * * *

    (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days.

    
    

17. In attempting to comply with the provisions of Section 440.491, Florida Statutes, Respondent attempts to

    determine what employment is reasonably attainable for the injured worker. Mr. Miranda determined that Petitioner's employment with DBPR constitutes suitable gainful employment despite the considerable disparity between Petitioner's pre- injury average weekly wage and her post-injury average weekly wage because better employment for Petitioner is not reasonably attainable. In making that determination, Mr. Miranda considered Petitioner's age, education, work history, transferable skills, and physical restrictions.

18. It is unlikely that Petitioner will be able to find employment that pays as well as her former employment with UPS.

19. Petitioner wants to be retrained in order to be able to work with computers. Mr. Miranda testified that it was likely that an independent evaluator would find that such retraining to be the most appropriate for Petitioner. Mr. Miranda also determined that after such retraining, Petitioner would likely start employment as a computer technician at a lower hourly rate than she was earning at DBPR.

20. The greater weight of the credible evidence established that Petitioner's employment with DBPR constitutes suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes.

    CONCLUSIONS OF LAW

    
    

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

22. Respondent established by a preponderance of the evidence that Petitioner had obtained suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes. Because of that determination, Petitioner is not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner further reemployment services.

DONE AND ENTERED this 19th day of March, 2001, in Tallahassee, Leon County, Florida.

___ CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2001.

ENDNOTES

1/ Petitioner's application for reemployment services did not progress beyond the screening stage. If it is determined that she is entitled to further reemployment services, the most the undersigned could recommend would be to have her progress to the next stage in the application process, which would require an independent vocational evaluation to determine whether there are appropriate reemployment services available to her. Petitioner's "Petition Requesting Hearing Pursuant to 28-106.201" raised issues that relate to disputes with her former employer and its workers' compensation carrier as to the extent of her injuries and her impairment rating. The undersigned ruled at the final hearing that those additional issues are beyond the jurisdiction of the Division of Administrative Hearings.

2/ OPS is an acronym for "other-personal-services", which is a temporary job classification used by the State of Florida. OPS positions typically have no fringe benefits. See Section 110.131, Florida Statutes.

3/ The supervisor was not named on the record. Ms. Facey was not sure which of her supervisors reviewed Petitioner's file with Mr. Miranda, and Mr. Miranda was not asked to identify the supervisor.

COPIES FURNISHED:

Elana Jones, Esquire Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

Michelle Lind

Post Office Box 290754 Davie, Florida 33329-0754

Sherri Wilkes-Cape, General Counsel Department of Labor and

Employment Security

The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

Mary B. Hooks, Secretary Department of Labor and

Employment Security

The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-004725

Orders for Case No: 00-004725