ROBERT H. BARR, )
vs. ) CASE NO. 75-317
Respondent. )
A public hearing was held pursuant to notice in the above styled cause in Room 360, State of Florida Office Building, 1350 N.W. 12th Avenue, Miami, Florida, at 9:00 a.m. on September 12, 1975, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.
For Petitioner: JOEL D. ROBRISH, Esquire
For Respondent: L. KEITH PAFFORD, Esquire
Petitioner was employed as a Police Sergeant with Metropolitan Dade County. He is 38 years old and has 13.83 years of creditable service under the Florida Retirement System. (Exhibit A)
On February 16, 1973, Petitioner was involved in an automobile accident in Broward County, Florida while serving with a detached drug abuse unit. On February 25, 1974, Petitioner applied for disability retirement benefits under Section 121.091(4) and Section 121.021(13), Florida Statutes, stating:
"I believe I am incapacitated for further service in Florida because of injuries received in an in-line-of-duty automobile accident that occurred on 16 February 1973." (Exhibit A)
After considering the evidence submitted in support of Petitioner's application, the Administrator of the Florida Retirement System determined that insufficient information was submitted to substantiate a finding of total and permanent disability as provided by Section 121.091(4), Florida Statutes. As a result, Petitioner was notified on March 20, 1975 of the Administrator's
intention to deny the subject disability retirement application. (Exhibit B) Notice of Petitioner's right to an administrative hearing pursuant to Chapter 120, Florida Statutes, was also provided at that time. On April 2, 1975, Petitioner notified the Respondent of his intention to Petition for an administrative determination of his disability application pursuant to Section 120.47(1), Florida Statutes. (Exhibit C) Whereupon, the Director of the Respondent requested that the Division of Administrative Hearings assign a hearing officer to conduct a hearing which was ultimately held at 1350 N.W. 12th Avenue, Miami, Florida on the 12th day of September, 1975. (Exhibit D)
The first witness to appear at this hearing on Petitioner's behalf was Detective Pete Kreimes who is employed by Metropolitan Dade County. The witness testified that he was trained by the Petitioner for the narcotics section and the two later became personal friends. He has known Petitioner for about five
(5) years. Mr. Kreimes testified that Petitioner was an outstanding investigator while employed by Metropolitan Dade County. While performing these duties, Petitioner participated in the physically demanding activities of a law enforcement officer. He related the circumstances surrounding Petitioner's accident of February 16, 1973, and the long range affects he felt the accident had on Petitioner's physical condition. This included Petitioner's apparent discomfort in walking, standing or sitting for extended periods of time. The witness also stated that Petitioner developed a serious drinking problem after the accident due to what he believed was the frustration of not being able to continue in police work and because of the financial problems being encountered. Mr. Kreimes felt there were no jobs available in the area of law enforcement wherein the Petitioner could render useful and efficient service on a full-time basis.
The next witness to appear was one Dr. Gilbert. Dr. Gilbert is a Medical Doctor with specialties in Psychiatry and Neurology. He also holds a Ph.D.. degree in the field of Psychology.
Dr. Gilbert detailed the neurological impairments to the cervical and lumbar areas of Petitioner's spine. The witness related that the Petitioner suffered from a post concussion syndrome following a brain concussion. The doctor also diagnosed a traumatic neurosis resulting from the pain and trauma of the accident and manifesting itself in tension and anxiety. The witness acknowledged Petitioner's allergies to various medications which might otherwise be used to alleviate muscle spasm, tension and some of the pain brought on by neurological probless. Dr. Gilbert felt that the combination of Petitioner's inability to alleviate pain in this manner and his various emotional problems led to the excessive use of alcohol. However, the witness did not feel that Petitioner's excessive use of alcohol was advisable; although, he did feel, considering Petitioner's allergies, that the only hope of Petitioner's dealing with his pain was by mental conditioning. Dr. Gilbert felt that the Petitioner had not reached maximum medical improvement, because he had not yet completed his diagnosis and work up on Petitioner's disability due to possible brain damage. However, he did feel that, due to the combination of Petitioner's post concussion syndrome, neurological and emotional problems, he was unemployable at this time, without regard to Petitioner's excessive drinking.
Mr. Harold Dunsky also testified as an employment expert on behalf of the Petitioner. Mr. Dunsky holds B.A., M.A., and J.D. degrees and has worked in the area of job placement and vocational counseling for the State of Illinois and the U.S. Government for over twenty years. Mr. Dunsky testified that after interviewing the Petitioner and considering various unidentified medical reports, he felt the Petitioner was unemployable on a full-time basis.
The final witness to testify was the Petitioner, Robert Barr. The Petitioner related his educational and employment experience which consisted of an in precriminology and approximately fourteen (14) years as a police officer with Metropolitan Dade County. Mr. Barr explained that the first indication of his allergy problems was in 1961 when his upper back, shoulders and arm began to ache while playing ball. As a result of his allergic reaction to the medication taken at this time, he suffered his first cardiac arrest. In 1966 the Petitioner suffered another cardiac arrest as a result of a penicillin shot administered during a bout with the flu. Another allergic reaction took place in a dentist's office in 1970 as a result of an injection of sodium penathol. The medical witnesses had been advised by Barr of his past allergic reactions.
Petitioner next detailed the circumstances surrounding his accident in February of 1973. He also related his current physical limitations, his financial problems, his desire to return to the field of law enforcement and his frequent use of alcohol to alleviate his pains and problems.
At this point the Deposition of Dr. William Scott Russell, Jr., Dadeland Medical Building, Suite 303, Miami, Florida, was made a part of the record. Dr. Russell is a neurologist who began treating the Petitioner on September 10, 1973.
Dr. Russell testified that the Petitioner complained of shoulder and arm pain due to thoracic outlet syndrome. The witness stated that this could be caused by a so-called jerk-injury or as a secondary phenomena in association with muscle spasm produced by an underlying disc injury. Dr. Russell also explained an impairment to the lower lumbar region of Petitioner's spine. This was diagnosed as nerve roots irritation of the, S1 nerve root. (Dep. Russell,
20) The witness stated that the Petitioner had a history of low-back problems relating to an automobile accident which occurred several years prior to his accident in February of 1973. (Dep. Russell, p. 14) Dr. Russell stated that the Petitioner represented that the pain from his prior accident ceased over a period of eight (8) months. (Dep. Russell, p. 14 and 44) Dr. Russell stated that based upon Barr's statements to him Barr had apparently fully recovered from that accident. The witness also stated that the Petitioner had a congenital defect in the lower lumbar area of his spine. Dr. Russell however concluded that this congenital defect had not effected Barr prior to the February 1973 accident because Barr had not had any pain prior to that accident, and lack of pain would have been evidence of an absence of disease or problems with regard to the congenital defect. (Dep. Russell, p. 29) The witness testified further as follows:
"Q. Doctor, do you have an opinion, based on the reasonable degree of medical probability, as to whether or not the laminectomy defect was, is related at all to the accident here?
First of all, I don't think it is a laminectomy defect. I think a laminectomy implies a surgical defect.
I think it is probably a bony, let's say a failure, of the bone to fuse over a specific area.
Q. Does that contribute, Doctor, in your diagnosis of the disc, does that contribute to the pain and discomfort in the area that you found?
A. By itself it should not but it can contribute to an unstable back which may, in turn, make it easier for that particular individual to have to sustain disc injury." (emphasis supplied)
Dr. Russell also testified that the Petitioner had multiple and severe drug allergies.
Dr. Russell testified that the Petitioner began consuming excessive amounts of alcohol as a substitute for various muscle relaxants. As a result of Petitioner's resort to alcohol he began experiencing episodes of alcoholic gastritis or peptic ulcer disease. (Dep. Russell, p. 38)
When asked to express in layman's terms the extent of the Petitioner's physical limitations, Dr. Russell testified:
"A. I don't -- I wouldn't consider him, at present, employable under any circumstances or under any quasi- responsible type position, either from the point of view of having to do any sort of physical activity or, I hate to say this, but from the point view of his reliability at this particular moment.
Q. What do you mean by that, 'reliability'?
A. I'm not certain that alcohol and reliability go hand in hand." (emphasis supplied)
CONCLUSIONS OF LAW
Based on the record developed at the hearing in this cause it is apparent that Petitioner is prevented by reason of a medical or physical impairment from rendering useful and efficient service as an officer or employee.
Petitioner has demonstrated that his total disability arose out of and in the actual performance of duty. Section 121.021(13), Florida Statutes, provides:
"'Disability in line of duty' means any officer or employee who is covered or who becomes covered under this system in accordance with this chapter. On and after December 1, 1970, all new members and those members transferring from existing systems shall be divided into two classes: 'special risk members' (special risk officers or employees) and 'regular members' (other than special risk officers or employees)."
The record of this cause reveals that although the Petitioner had a congenital defect and a prior injury to the lower back from an earlier accident, he was fully recovered from the injury and participated in a very physically active
occupation without back pain prior to his February 1973 accident in an exceptional manner. Similarly, there was no testimony that his shoulder cramps while playing ball in 1961 had any relationship to his present back injuries.
The record indicates that the Petitioner's disability is due solely to problems arising from his accident in February 1973 which occurred in the actual performance of duty. The testimony of all witnesses disclosed that Petitioner's excessive use of alcohol started after and was caused by the accident and the injuries suffered therein. Although, Dr. Russell stated in his deposition that the Petitioner's use of alcohol had an adverse affect on Petitioner's health, it was clear that Dr. Russell considered Petitioner to be physically disabled from his injuries. His medical opinion was supported by Dr. Gilbert's testimony.
The Petitioner having demonstrated that he is totally and permanently disabled and that his disability arose out of and in the actual performance of duty, I recommend that Petitioner receive disability in line of duty benefits under the Florida Retirement System Act from the date of his initial application.
DONE and ORDERED this 8th day of October, 1975.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
L. Keith Pafford, Esquire Division Attorney Division of Retirement
Joel D. Robrish, Esquire Bernstein & Robrish
