STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVAN FELTON JONES, )

)

Petitioner, )

)

vs. ) CASE NO. 75-588

) ROBERT L. KENNEDY, JR., STATE ) RETIREMENT DIRECTOR, DEPARTMENT ) OF ADMINISTRATION, DIVISION OF ) RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A public hearing was scheduled pursuant to notice in the above captioned cause in Room 455, the Orange County Courthouse, Orlando, Florida, at 8:00 a.m. on August 28, 1975, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. Because of the limited space available the hearing was convened in the Grand Jury Room of the Orange County Courthouse at approximately 8:30 a.m., appropriate notice of hearing having been placed on Room 455 noting the change. All witnesses and parties were present.

APPEARANCES

Petitioner: James M. Matthews Respondent: L. Keith Pafford Witnesses: Evan Felton Jones

Dr. Norton M. Baker

Evan Felton Jones was a truck driver for Orange County and was originally a member of State and County Officers and Employees Retirement (SCOERS) transferring on December 1, 1970, to the Florida Retirement System (FRS). Jones injured his back in 1974 and thereafter applied for disability retirement from FRS. His application for regular disability retirement was approved; however, his application for disability in line of duty was denied. Having been advised of his right to a formal hearing pursuant to Subsection 120.57, F.S., he petitioned for a formal hearing and the Director of the Division of Retirement referred the matter to the Division of Administrative Hearings for a hearing.

ISSUE

Prior to convening the hearing, a short prehearing conference was held in which it wad developed that the Division of Retirement controverted Jones' eligibility for in-line-of-duty disability retirement on the basis that Jones' disability did not arise totally from his injury suffered while a member of FRS.

FINDINGS OF FACT

1. Dr. Baker was called by the Petitioner and testified that his associate, Dr. Willis, had initially treated Mr. Jones in 1969 for an injury to his back. Dr. Baker testified from Dr. Willis' medical records, Dr. Willis having died since the date of Jones' treatment. Dr. Willis had treated Jones for low back sprain. Jones recovered and returned to work after the 1969 injury.

   
   

2. On August 11, 1970, Jones again sought treatment from Doctors Baker and Willis for pain in the lower back. At this time, the trouble was again diagnosed as low back sprain (lumbar sacral sprain). Jones was treated and returned to work. On August 25, 1970, Jones was seen as a result of an ankle injury suffered in a tractor accident which did not affect his back.

   
   

3. In February 1973, Jones injured his back stepping out of a truck. This was diagnosed as a sprain of the lower back with possible disc disease. Jones was eventually hospitalized by Dr. Baker, and Jones recovered slowly from acute muscle spasm. He returned to work in May 1973 and was told to wear a brace. However, Jones continued to have problems with his back up until June 1973 when the spasm ceased. He then reported no more difficulty until May 1974, when he injured his back lifting a can of fuel.

   
   

4. After being injured on May 3, 1974, Jones was treated by Dr. Baker for acute muscle spasm, acute lower back sprain which affected the sciatic nerve. Dr. Baker prescribed bed rest, a bed board, and muscle relaxants. On May 10, 1974, Dr. Baker hospitalized Jones and a myelogram was done which did not reveal any rupture of the disc. Various treatments were tried and after July 23, 1974, a discogram was done which revealed the degeneration of three disc in the lower back. The condition placed pressure on the nerve roots and spinal cord.

   
   

5. Dr. Baker said that the periods of recuperation in 1969 and 1970 were within normal limits and expressed his opinion that Jones recovered from these injuries.

   
   

6. Dr. Baker expressed his medical opinion that the accidents that Jones suffered in 1973 and 1974 had disabled Jones by placing pressure on the affected disc which had been weakened by disease and a curvature of Jones' spine.

   Because of Jones' recovery from the 1969 and 1970 injuries to his back, Dr. Baker was of the opinion that these incidents had not contributed to Jones' ultimate disability.

   
   

7. The Division of Retirement has not controverted the disability status of the Petitioner, Jones, as evidenced by its approval of regular disability benefits. As stated above, the matter in controversy was whether Jones' disability arose totally from accidents suffered while Jones was a member of FRS. The uncontroverted testimony of the medical expert, Dr. Baker, was that Jones' disability arose solely from injuries to his back occurring in 1973 and 1974, after Jones had become an FRS member.

   
   

8. To the extent Jones' back may have been diseased in 1969, 1970 or other times prior to his entry into FRS, the record is clear that he worked and contributed to the retirement system regularly from December 1, 1970, until February 1973. Therefore, he was not "disabled," having performed his job duties for over three years. It was only after being injured in 1973, after

   which he had an extended recuperative period, and again in May 1974, that Jones was unable to return to his duties because of his disabilities.

   
   

   CONCLUSIONS OF LAW

   
   

9. The applicable statutes provide that disability in line of duty is:

   
   

   . . . an injury or illness arising out of and in the actual performance of duty. . . .

   
   

   Subsection 121.021(13), F.S.

   
   

10. The evidence in this case clearly indicates that Jones was disabled by injuries suffered in 1973 and 1974. At this time he was a member of FRS and entitled to the benefits of that system.

    
    

11. A second issue in this case involves the date on which Petitioner's

in-line-of-duty benefits should have begun in the event that his eligibility for same was established. Although Petitioner has been found ineligible for those benefits, it should be noted that the proper date for commencement of the benefits would have been the first day of the month following the month in which Petitioner completed his application for in-line-of-duty disability benefits retirement. As all pertinent information was before the Respondent at the time, equity demands that applicants not be penalized for delays in processing their applications which are beyond their control. See Paragraph 121.091(4)(c), Florida Statutes.

RECOMMENDATION

Based upon the foregoing, Jones' disability was suffered in line of duty and after he was covered by FRS; therefore, Jones is entitled to and it is recommended that he receive in-line-of-duty disability benefits.

DONE AND ENTERED this 13th day of November 1975.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

James M. Matthews, Esquire Suite 210, 101 Wymore Road Altamonte Springs, Florida

L. Keith Pafford, Esquire Division Attorney Division or Retirement

530 Carlton Building Tallahassee, Florida

Docket for Case No: 75-000588

Orders for Case No: 75-000588