STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS J. P., ) ) Petitioner, ) ) vs. ) Case No. 05 - 2290 ) DEPARTMENT OF EDUCATION, ) DIVISION OF VOCATIONAL ) REHABILIATION, BUREAU OF ) REHABILITATION AND REEMPLOYMENT ) SERVICES, ) ) Respondent. ) __________________________________) RECOMMENDED ORDER Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.569, Florida Statutes (20 05), and Section 120.57(1), Florida Statutes (2005), on September 12, 2005, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Stuart M. Lerner, a duly -designated Administrative Law Judge of the Division of Administrative Hearings (DOAH). APPEARANCES For Petitioner: J. P., pro se ( A ddress of record) For Respondent: Elana J. Jones, Esquire Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 - 0400 STATEMENT OF THE ISSUE What Respondent - provided or sponsored reemployment services will best enable Petitioner to return to suitable gainful employment. PRELIMINARY STATEMENT On or about October 25, 2004, Respondent sent a letter to Petitioner and his former employ er's worker's compensation carrier advising them of the following: This letter is to inform all interested parties that the Division of Vocational Rehabilitation, Bureau of Rehabilitation and Reemployment Services, completed an evaluation in accordance wit h section 440.491, Florida Statutes and rule 6A - 22.007, Florida Administrative Code. The Bureau has determined that the best way to return [Petitioner] to suitable gainful employment is through vocational services, specifically job placement assistance. This decision is based in part upon the following: - Age: 55 years old, DOB: 08/28/1949. - Education: High School (G.E.D.). - Work History: General Carpentry, Trim Carpenter, Carpenter & Rough Carpentry. - Transferable Skills: Counter Clerk , Retail Customer Services, Sales Specialist. - Diagnosis: Right rotator cuff tear, post SLAP repair. - Restrictions: Occasional lift/carry 5 lbs, bend, squat, sit, stand, and walk for 8 hrs. at once. Never crawling, climbing, nor re ach[ing] above shoulder level. Cannot use his Right hand for repetitive action, such as simple grasping, pushing or pulling per Dr. Linn, MD. - AWW: $680.00 2 The letter further advised that any substantially affected party could challenge this determinat ion by timely filing "a petition in compliance with Florida Administrative Code Rule 28 -106.201" requesting an administrative hearing on the matter. On November 3, 2004, Petitioner filed a written request for such a hearing. On June 23, 2005, the matter was referred to DOAH for the assignment of a DOAH administrative law judge to conduct the hearing Petitioner had requested. As noted above, the hearing was held on September 12, 2005. 1 Four witnesses testified at the hearing: Leo Seewaldt, Ira Morris, An gel Miranda, and Petitioner. In addition, a total of eight exhibits (Respondent's Exhibits 1 through 6, and Petitioner's Exhibits 1 and 2) were offered and received into evidence. At the close of the evidentiary portion of the hearing on September 12, 20 05, the undersigned, on the record, advised that proposed recommended orders had to be filed with DOAH no later than 14 days from the date of the filing with DOAH of the hearing transcript. The hearing Transcript (consisting of one volume) was filed with D OAH on September 26, 2005. The Department filed its Proposed Recommended Order on October 7, 2005. To date, Petitioner has not filed any post - hearing submittal. 3 FINDINGS OF FACT Based on the evidence adduced at hearing, and the record as a whole, the fol lowing findings of fact are made: 1. Petitioner is a 56 - year - old resident of Plantation, Florida. 2. He has a sixth grade formal education (which he received in his native Mexico). 3. In June of 1998, he was issued a GED after achieving the requisite standard scores on the GED Test for the State of Florida High School Diploma. 4. In April of 1999, he completed a three - month "Blueprint Reading and Estimating" course offered at Nova Community School, a Broward County public school. 5. In 2000, he stu died computer assisted drafting at McFatter Technical Institute, but he did not complete the course. 6. In the fall of 2002, he took an "Introduction to Labor Studies" course at Florida International University. 7. On July 28 and 29, 2005, and on August 16, 2005, he received helicopter flight and ground training at Helicopters of America, Inc.'s Flight Training Academy. He "fund[ed] [this training] on his own." 8. Petitioner is a carpenter by trade. 4 9. He has also served as a merchant marine and has done home remodeling, sandblasting, and painting work to make a living. 10. At present, he is unemployed. 11. Petitioner was last employed by Turner Construction (Turner). 12. On July 2, 2003, while working for Turner as a carpenter, he suffered an o n- the - job injury when he slipped and fell at a worksite, tearing his right rotator cuff. He has not worked since this accident. 13. At the time of his injury, his average weekly wage (for the previous 13 weeks) was $680.00. 14. Petitioner underwent arth roscopic surgery to repair his torn rotator cuff. 15. Richard Linn, M.D., was Petitioner's treating physician. 16. On May 21, 2004, Dr. Linn certified, in writing, that, as of May 20, 2004, Petitioner had attained maximum medical improvement (with an 18 percent permanent impairment rating), having the ability, during an eight - hour work day, to sit, stand, and walk without restriction; "occasionally" (that is, "0 to 33 percent " of the work day) lift and carry up to, but never more than, five pounds; "occa sionally" bend and squat, but never crawl, climb, or reach above shoulder level; use his left hand, 5 but never his (dominant) right hand, "for repetitive action"; and use his feet "for repetitive movements." 17. Respondent administers a reemployment servic es program designed to help injured employees, like Petitioner, "return to suitable gainful employment." 18. Petitioner's case was brought to Respondent's attention in or around the summer of 2004. 19. After attending a July 7, 2004, orientation session offered by Respondent, Petitioner, on July 12, 2004, was given a "one - on - one screening interview" by Leo Seewaldt, a Senior Vocational Rehabilitation Counselor with Respondent. During the interview, Mr. Seewaldt obtained from Petitioner information and do cumentation concerning Petitioner and his situation. 20. A case staffing meeting (attended by Mr. Seewaldt and other personnel of Respondent) was held on July 12, 2004, following the "one -on-one screening interview." The staffing team determined that a v ocational evaluation of Petitioner should be conducted. 21. Respondent referred Petitioner for such an evaluation to Ira Morris, a well - credentialed rehabilitation consultant with Sharon Griffin & Associates, Inc. 22. Mr. Morris met with Petitioner on Au gust 19, 2004, to collect information about Petitioner and administer to Petitioner certain vocational tests, including the Career 6 Occupational Preference Survey (COPS), the BETA -III Examination (BETA), the Test of Adult Education Survey Level A (TAESA), t he Career Abilities Placement Survey (CAPS), and the Crawford Small Parts Dexterity Test (CSPDT). 23. The COPS revealed that Petitioner had the greatest interest in the following occupational categories: Service Professional, Skilled Science, and Skilled Technology. 24. The BETA is a non - verbal test of intelligence. Petitioner's score on the test placed him in the 12th percentile of those taking the test. 25. The TAESA was administered to assess Petitioner's "academic grade levels of achievement." His performance on the test was as follows: 7.8 grade level in reading; 2.3 grade level in applied mathematics, 2.1 grade level in total mathematics, 1.4 grade level in language, and 12.9 grade level in spelling. 26. The CAPS is a comprehensive, multi- dimensional battery designed to measure vocationally relevant abilities. On the mechanical reasoning, spatial relations, verbal reasoning, numerical ability, language usage, word knowledge, and perceptual speed and accuracy subtests of the CAPS, Petitioner's scores were in the eighth, 68th, 17th, 17th, second, 32nd, and eighth percentiles, respectively. 7 27. Petitioner's results on the CSPDT reflected a subaverage ability to work with small parts and tools. 28. Mr. Morris reasonably concluded, based on the fo regoing testing,2 as well as the background information he had gathered about Petitioner and the labor market research he had conducted, that Petitioner's pursuing training and work as an unarmed security guard or "gate guard" offered him the best opportun ity to be restored, as soon as practicable and as close as possible, to his average weekly earnings at the time of his rotator cuff injury. In the Broward County labor market, there is an "array" of "gate guard" positions for which Petitioner would be qua lified, physically and otherwise, once he obtained the requisite training and licensure (to wit: a Class "D" security officer license). 29. On October 5, 2004, Mr. Morris issued a written report of his findings, which he provided to Respondent. 30. In his report, in addition to disclosing the "background information" he had obtained about Petitioner (including Petitioner's educational, work, and medical history) and detailing the results of the vocational testing he had performed on August 19, 2004, Mr . Morris stated the following: Transferable Skills Analysis A transferable skills analysis was completed using all the occupations stated above and limited to the sedentary -light work 8 category, taking into account the restrictions noted by Dr. Linn. Util izing the DOT [Dictionary of Occupational Titles] , COJ [ Classification of Jobs], and GOE [ Guide for Occupational Exploration], consideration was given to Mr. [P.'s] employment history, education and functional capacities in identifying transferability of s kills to suitable jobs. Mr. [P.] does not appear to possess directly transferable skills to occupations within his physical capabilities. He may be able to utilize skills developed in past employment in occupations that may require additional training. One such position is security guard. Labor market and training information regarding security guards is noted below. Training Training to become licensed as an unarmed security guard is available at Corporate Security located at 2706 - B West Oakland Park Boulevard in Fort Lauderdale (954/731 - 5404). I spoke with Tammy. The course to obtain a "D" license is a 2 - day course, taught Wednesday - Thursday and Saturday-Sunday. The cost for the training course is $65.00 and the licensure fee is $72.00. An additi onal 16 -hour course is required within 2 years for $50.00. Job placement assistance is available and it is noted that the companies with which they place employees start at $8.50 -$9.00 per hour. Labor Market Research Openings identified within Mr. [P.'s ] local labor market note starting wages ranging from $8.00 to $12.00 per hour for full -time positions. Positions are noted as available with Florida Medical Center, Vanguard Security, Navarro Security, and more. An internet search of security job opport unities in Broward County revealed 9 numerous available positions within facilities and with security companies staffing residential communities. According to the Florida Agency for Workforce Innovation, Security Guards in the Fort Lauderdale MSA earn media n wages of $8.92 per hour.[ 3] Conclusions : In answer to your referral questions: 1. Utilizing transferable skills, Mr. [P.] may not return to work in the current labor market at wages commensurate with [his] average weekly wage. 2. On the job trainin g will not assist this client to return to work at a commensurate rate with the average weekly wage in a light job. 3. Specific training is required to allow the client to return to work at a commensurate rate with the average weekly wage. Recommendatio ns It is recommended that Mr. [P.] be provided with training and licensure as a Class D [unarmed] Security Officer. This recommendation has been discussed with Mr. [P.]. An alternative to security guard work is direct job placement as a counter clerk (m odified) or in retail customer service. 31. Respondent agrees with Mr. Morris' findings and is willing to sponsor Petitioner in a Class "D" security officer training program and to "help him with placement services afterward." 4 10 32. Petitioner, however, does not want to work as a "gate guard," notwithstanding that such employment offers the most efficacious way of enabling him to return, as soon as practicable and as close as possible, to his pre -injury average weekly earnings. Rather, he has expressed a strong desire to pursue the occupational goal of becoming a helicopter pilot. According to the Dictionary of Occupational Titles, however, helicopter pilot is a light work position involving physical activities that Petitioner is restricted from performi ng per Dr. Linn. 33. Because of his physical limitations and academic shortcomings, the occupational alternatives reasonably available to Petitioner are limited. These feasible alternatives include his working as a "gate guard" or "modified" counter cler k or customer service representative, but not as a helicopter pilot. CONCLUSIONS OF LAW 34. Section 440.491, Florida Statutes (2005), authorizes Respondent to administer a reemployment services program for certain employees who have suffered compensable on - the-job injuries. 35. The program's goal is " to return an injured person to suitable gainful employment in the most economical and efficient manner." Barnes - Nixon v. Department of Education, Division of Vocational Education, Bureau of Rehabilitation a nd Reemployment 11 Services , No. 02 -3755, 2003 WL 136231 *4 (Fla. DOAH January 17, 2003)(Recommended Order). 36. "Suitable gainful employment," as that term is used in Section 440.491, Florida Statutes (2005), " means 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 avera ge weekly earnings at the time of injury." § 440.491(1)(h), Fla. Stat. (2005). 37. "Upon referral of an injured employee by the carrier, or upon the request of an injured employee, [Respondent is required to] conduct a training and education screening to determine whether it should refer the employee for a vocational evaluation and, if appropriate, approve training and education or other vocational services for the employee. [Respondent] may not approve formal training and education programs unless it de termines, after consideration of the reemployment assessment, pertinent reemployment status reviews or reports, and such other relevant factors as it prescribes by rule, that the reemployment plan is likely to result in return to suitable gainful employmen t." § 440.491(6)(a), Fla. Stat. (2005). 38. The "screening process" is described in Florida Administrative Code Rule 6A - 22.006, which provides as follows: 12 (1) A request for screening is made using a form DWC -23. Before the Department will consider a re quest complete and initiate a screening, the injured employee must sign the form DWC - 23. (2) The screening process shall consist of: (a) A review of all available medical and vocational documentation relevant to the compensable injury to determine whet her the injured employee is able to perform the duties of the pre - injury occupation; and (b) A review of the documentation which supports the payment of temporary partial disability and wage loss benefits to determine the injured employee's inability to obtain suitable gainful employment because of his injury; and (c) An interview with the injured employee. (3) The carrier shall provide, within 10 business days of receipt of a request from the Department, any medical, vocational, and other requested d ocuments or reports related to the injured employee's workers' compensation case. (4) The Department may request the information directly from the authorized treating physician(s), or qualified rehabilitation provider(s), or obtain the services of an exp ert medical adviser to identify the injured employee's ability to return to work, permanent impairment rating, and permanent work restrictions. (5) The Department shall not provide any reemployment services, including a vocational evaluation unless the i njured employee provides documentation to establish identity and employment eligibility. Such documentation shall be consistent with the acceptable documents for verifying identity and employment eligibility as required by 13 the U.S. Department of Justice, Immigration and Naturalization Service's Employment Eligibility Verification Form I - 9 (Rev. 11 - 21 - 91). (6) The Department shall not provide a vocational evaluation or any reemployment services when form DWC - 23, which is signed by the injured employee, i s received by the Department more than one (1) year from the date of last payment of indemnity benefits or the furnishing of remedial treatment, care, or attendance from the employer or carrier. (7) Following a Department screening the Department shall n ot provide any additional reemployment services or refer the injured employee for a vocational evaluation: (a) If the injured employee has filed a claim for permanent total disability benefits under Section 440.15(1), F.S., which the carrier has denied, wherein either the injured employee's medical condition or vocational capabilities are in dispute, until such time as an Office of the Judge of Compensation Claims adjudicates the injured employee's claim; or (b) If the injured employee's medical conditi on is unresolved or unstable, until such time as the medical condition becomes stable; or (c) If the injured employee has reached maximum medical improvement and returned to and maintained suitable gainful employment for at least 90 calendar days; or (d ) The injured employee refuses to accept reemployment services from the Department. (8) The Department shall not refer the injured employee for a vocational evaluation if the injured employee: 14 (a) Has returned to suitable gainful employment as a resul t of placement services provided by the Department; or (b) Has no documented permanent physical restrictions related to the injury; or (c) Has transferable skills which would allow return to work in suitable gainful employment. (d) Was terminated by the employer for good cause unrelated to the injury or any restrictions or limitations resulting therefrom; or (e) Terminated suitable gainful employment for reasons unrelated to the injury. 39. A vocational evaluation is "a review of the employee's ph ysical and intellectual capabilities, his or her aptitudes and achievements, and his or her work -related behaviors to identify the most cost -effective means toward the employee's return to suitable gainful employment." § 440.491(1)(i), Fla. Stat. (2005). 40. According to Florida Administrative Code Rule 6A - 22.007(2), vocational evaluations must "meet []the requirements of and contain[] the information identified in paragraph 6A - 22.010(2)(e), F.A.C.," which provides as follows: (2) A certified vocational evaluator providing Department sponsored vocational evaluations shall: (e) Submit to the Department, within 30 calendar days of Department approval of services, a written report which shall: 15 1. Include an interpretation of testing instruments and work samples used, specifying the form and level of tests, percentile scores, norm groups, grade levels, standard scores and stanine scores as applicable to the test instrument; and 2. Identify the injured employee's physical and intellectual capabilities, ap titudes, achievements, work related behaviors, and interests. The interests of the injured employee alone cannot be the only basis for the vocational evaluator's recommendation; and 3. Identify residual or transferable skills; and 4. Identify the most appropriate vocational objective; and 5. Identify which reemployment service(s) are necessary for the injured employee to return to suitable gainful employment; and 6. Discuss how the provision of the recommended service(s) will facilitate reemploymen t, and 7. When a retraining program is recommended, include the rationale for the recommended program, the entrance, enrollment and exit requirements of the program, the anticipated program costs and the proximity of the program to the injured employee's customary residence; and 8. Include an individualized labor market survey which supports the injured employee's ability to compete for employment in the identified vocational goal(s) and shall include information documenting: a. The potential wage ear ning capacity, b. The physical demands of the identified 16 vocational goal as identified by potential employers, c. The minimum educational requirements and work experience required by potential employers, and d. Each potential employer's job openings for the six months prior to the survey and projected openings for the upcoming six months. 41. According to Florida Administrative Code Rule 6A - 22.008(2): The Department will approve and sponsor retraining services if: (a) The vocational evaluation is completed by a Department approved vocational evaluator, and (b) The vocational evaluation contains the information identified in paragraph 6A - 22.010(2)(e), F.A.C.; and (c) The vocational evaluation demonstrates that the injured employee: 1. Has no t ransferable skills which would allow for return to suitable gainful employment with the same employer, same job; same employer, different or modified job; new employer, same job; new employer, modified or different job; or 2. Requires additional Departme nt sponsored reemployment services to enable the injured employee to return to suitable gainful employment. 42. Florida Administrative Code Rule 6A - 22.008(4) provides: 17 If the Department determines a training program is necessary to return an injured emp loyee to suitable gainful employment, the Department shall have the exclusive right to determine the educational programs and facilities at which to sponsor the injured employee. (a) For all dates of accidents, training programs which only accept student s from an applicant pool after the students complete a prerequisite curriculum may be approved only if the injured employee presents evidence of acceptance into such program. (b) For dates of accident October 1, 1989 through and including September 30, 2 003, training at private education facilities shall not be approved unless such recommended training is not offered at a public educational facility or provides an overall cost/time savings to the Workers' Compensation System, which can be justified. 1. Baccalaureate or Graduate level studies may be approved only if the program capitalizes on prior education and/or aptitudes, and 2. The program under consideration firmly establishes marketability toward suitable gainful employment for that injured emplo yee, and 3. The injured employee presents evidence of acceptance into a degree program prior to the Department's Disposition letter of approval, and 4. The program does not exceed the level of a Master's degree. (c) For dates of accident on or after October 1, 2003, only programs which are consistent with the requirements found in 18 Section 440.491(6)(a), Florida Statutes, shall be approved. Section 440.491(6)(a), Florida Statutes (2005), provides that Respondent " is authorized to expend moneys fromthe Workers' Compensation Administration Trust Fund, established by s. 440.50, to secure appropriate training and education at a community college as designated in s. 1000.21(3) or at a career center established under s. 1001.44, or to secure other vocatio nal services when necessary to satisfy the recommendation of a vocational evaluator." 43. Florida Administrative Code Rule 6A - 22.008(6) prohibits Respondent from " sponsor[ing] reemployment services if the vocational evaluation does not recommend reemploym ent services." 44. Where, as in the instant case, an injured employee disagrees with the reemployment plan Respondent has devised and proposes an alternative plan, the employee (at any evidentiary hearing held on the matter) bears the burden of proving en titlement to the reemployment services he or she is seeking. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company , 670 So. 2d 930, 934 (Fla. 1996)("The general rule is that a party asserting th e affirmative of an issue has the burden of presenting evidence as to that issue."); and Florida Department of Health 19 and Rehabilitative Services v. Career Service Commission , 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is on the party a sserting the affirmative on an issue before an administrative tribunal."). To do so, the employee must present evidence demonstrating that his or her proposed reemployment services are services that Respondent is authorized by law to provide and that, as compared to the services offered by Respondent, they will better enable Petitioner to return to "suitable gainful employment." 45. At the administrative hearing held at Petitioner's request in the instant case, Petitioner failed to meet this burden of pro ving that he is entitled to the reemployment services he is seeking from Respondent (those services being Respondent's sponsorship of his training to become a helicopter pilot). 46. Indeed, the evidence affirmatively establishes that, because of the physi cal restrictions placed on him by Dr. Linn, Petitioner is not suited for helicopter pilot work, and that it is the reemployment services offered by Respondent, not those Petitioner is seeking, that would best enable him to return to "suitable gainful emplo yment." RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is 20 RECOMMENDED that Respondent enter a final order denying the relief requested by Petitioner. DONE AND ENTERED this 12th day of October, 2005, in Tallahassee, Leon C ounty, Florida. S ___________________________________ STUART M. LERNER 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 12th day of October, 2005. ENDNOTES 1 The hearing was originally scheduled f or August 26, 2005, but was continued at Respondent's request (for weather - related reasons). 2 While it is possible that Petitioner could improve his test scores by taking "remediation classes," it is not likely that he would be able to make significant improvement in these scores any time soon. 3 The median wage for security guards in the Fort Lauderdale MSA (Metropolitan Statistical Area) has since risen to $9.19 per hour. 4 Although Respondent's October 25, 2004, letter to Petitioner makes no menti on of Respondent - sponsored training, the author of that letter, Angel Miranda, a Vocational Rehabilitation Consultant with Respondent, clarified, in his testimony at hearing, that Respondent was offering not only to provide 21 Petitioner with placement servic es but to also pay for him to enroll in a Class "D" security officer training program. COPIES FURNISHED: J. P. (Address of record) Elana J. Jones, Esquire Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Flori da 32399 - 0400 Bill Palmer, Director Bureau of Rehabilitation and Reemployment Services Department of Education Division of Vocational Rehabilitation 2002 Old St. Augustine Road, Building A Tallahassee, Florida 32301 - 4862 John L. Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399 - 0400 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this r ecommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case. 22 23