LETTIE C. SMITH, )
vs. ) CASE NO. 75-1113
Respondent. )
This cause came on for final hearing, after due notice, on August 15, 1975, at 10:00 A.M., in the County Commissioner's Conference Room, County Courthouse, Tampa, Florida, before the undersigned Hearing Officer. The following appearances were entered:
For Petitioner: Robert W. Walkley, Esquire
For Respondent: L. Keith Pafford, Esquire
PETITIONER'S ELIGIBILITY FOR DISABILITY RETIREMENT PURSUANT TO CHAPTER 121, FLORIDA STATUTES.
The Petitioner, a 61 year old widow, who resides at 325 West South Avenue, Tampa, Florida 33603, was employed by the Hillsborough County Hospital and Welfare Board as a nurse's assistant from October 1, 1961 to December 8, 1974, at which time her services were terminated by resignation (Respondent Exhibit 2). Prior to assuming her duties at the Tampa General Hospital, she had
22 years of experience in the photography business in which she took pictures at her place of business and elsewhere and did developing and retouching work in the dark room. Prior to becoming an operating room nursing assistant at the Tampa General Hospital she performed one year of on the job training as a clerk at the hospital with essentially the same duties as that of a nursing assistant.
Petitioner's duties as a nursing assistant consisted of working in the operating room suite, washing and cleaning instruments, cleaning shelves, cupboards and dressing rooms, stocking sterile supplies, running errands to the x-ray room, blood bank, medical records area and the like, answering the telephone, checking operating schedules, picking up instruments and instrument trays and putting them away in the operating room, taking messages for doctors and nurses, sterilizing instruments, keeping the nurses lounge and instrument room cabinets clean, and assuming responsibility for the operating room area when the nurse was not present. These duties required almost continuous walking, standing and lifting of objects such as heavy instrument trays, supplies and other items.
On October 28, 1974, Petitioner's duty hours at the hospital were from 2:45 P.M. to 11:18 P.M. It was customary for the Petitioner and other employees to go to the hospital parking lot during their supper break and move their private automobiles nearer to the hospital building if they had not been able to secure a parking space that was close to the hospital when reporting for duty. The purpose of this action was to move the car closer so it would be in a more lighted area, because there had been trouble in the past in the outlying darker areas of the parking lot. It was permissible for employees to move their cars in such a manner if they informed the supervisor ahead of time and, in fact, sometimes the male hospital attendants would move the automobiles for the female employees. On October 28, 1974, during her supper break, at approximately 6:30 P.M., Petitioner walked out of the hospital and down the sidewalk by the blood bank in order to proceed to the parking lot and move her automobile for the above-stated purposes. While walking, she tripped on a crack in the sidewalk outside the hospital building in a poorly lighted area and fell to her knees. She experienced pain in the back of her right leg and could not put her weight upon it. A passing doctor attempted to help her arise but was unable to do so, so he went into the hospital, procured a wheelchair and took, her to the emergency room. There she was treated by Doctor Howard D. Hardee, who diagnosed her injury as a sprained ligament and gave her Darvon and an Ace bandage. On November 1, 1974, she was examined by Doctor L.J. Cordrey, a Tampa orthopaedic surgeon, who diagnosed her injury as a degenerative change of the right knee with possible internal derangement. His treatment consisted of x-ray examination, injections of Lidocaine and Decadron, aspiration of fluid from the knee and prescriptions for Motron and Darvon for pain. She had fluid removed from the knee every two weeks for about a three month period (Petitioner Exhibits 2 and 3).
Petitioner returned to work at the hospital during Thanksgiving week wearing an elastic brace on her knee. Although fellow employees attempted to lessen her workload, she found that she could not perform her duties and therefore did not continue working, and has not since that time. Although her condition has improved somewhat since the date of the accident with respect to pain, she cannot walk for extended periods without resting. When walking, she must turn her leg sideways and grasp for support. Prior to the injury, she was able to take care of her house and yard. Since that time, however, her sister Mrs. Tommy Humphries, goes to her house daily in order to do the housework. Mrs. Humphries also does the shopping, part of the cooking, and all the driving for her sister. Although Petitioner was a nervous individual prior to the injury, she has become much more nervous since that time.
Petitioner filed an application for disability retirement benefits under the Florida Retirement System on January 6, 1975. Required forms accompanying her application were physicians' reports from Dr. Hardee, Dr. Cordrey, and an employer's Statement of Disability (Respondent's Exhibits 1-4).
The employer's Statement of Disability reflects that, although the Petitioner was able to perform all of the duties of her position fully and completely prior to her alleged disability, she is unable to perform duties requiring lifting, walking, and standing as a result of the alleged disability. This document also states that there are no other jobs in the organization suitable to her abilities which she could perform despite the claimed disabling condition. The report of Dr. Cordrey, based on his examination and treatment of the Petitioner, which apparently was executed in January, 1975, includes his opinion that the patient at that time was unable to perform substantially all the duties of her occupation, specifically, standing and walking, and that such activity would bring on pain and increased swelling of the right knee. However, it was noted that the Petitioner's condition had not stabilized at that time. The report further reflected that Petitioner had been treated by Dr. Cordrey in July, 1968, for pain at the left heel, Plantaraspect, and that she had responded to treatment and was discharged in November of that year. Dr. Cordrey also stated in his report that Petitioner had had complaints relative to an arthritic condition since 1965. The report of Dr. Hardee made no reference to the injury which occurred on October 28, but showed a diagnosis of arterioschlerotic heart disease, coronary artery disease, peripheral vascular disease, hypertension, a chronic anxiety state, and an arthritic condition. These were described as slowly progressive disorders which were aggravated by standing on the feet for long periods of time. Dr. Hardee also stated in his report that the patient was unable to perform substantially all of the duties of her occupation.
On June 5, 1975, Respondent sent a letter to Petitioner indicating that she would be denied disability retirement benefits pursuant to Section 121.091(4)(b) and Section 121.021(13), Florida Statutes, because an informal examination and evaluation of the facts surrounding Petitioner's retirement application did not establish circumstances adequate to justify a disability retirement.
Petitioner was examined again by Dr. Cordrey on February 7, 1975 and, in a report to the workmen's compensation carrier, stated that as a result of physical examination, Petitioner had a swelling of the right knee, patellar ballottement, and that palpitation of the right knee elicited diffuse discomfort. The report indicated Dr. Cordrey's impression then as degenerative arthritis, right knee, with possible internal derangement of the right knee. It also stated that, although she had not yet reached maximum medical benefit, eventual permanent disability should not exceed 10 percent of the right leg (Pet. Exhibit 1).
The Petitioner also was examined by Dr. Frank K. Kriz, Jr., a Tampa orthopedic surgeon, on July 22, 1975 and, in a report to the workmen's compensation carrier, dated July 23, 1975, stated his impression of Petitioner's condition as early degenerative arthritis of the right knee with narrowing of the medial compartment which would be progressive in nature and which was related to the accident of October, 1974. He stated he did not feel that the patient was able to return to the type of work that she previously had performed, that she has reached maximum medical improvement, and placed her permanent, partial impairment at 10 percent of the right leg (Pet. Exhibit 2).
Other medical reports show that Petitioner also suffers from severe hypertension (Pet. Exhibit 3) and poor vision caused by a cataract operation in 1974, and the need for the cataract to be removed from the other eye in the future (Pet. Exhibit 4)
At the time of her employment by Hillsborough County, Petitioner enrolled in the State and County Officers and Employees Retirement System. She later transferred to the Florida Retirement System, effective June 1, 1971. It was stipulated by the parties that she has 13.3 years creditable service for retirement purposes.
CONCLUSIONS OF LAW
The Petitioner is totally and permanently disabled within the meaning of s. 121.091(4)(b), Florida Statutes, because she is prevented, by reason of a medically determinable physical impairment, from rendering useful and efficient service as an employee. The disability is established by the uncontroverted evidence which shows that she is no longer able to perform her duties as a nursing assistant and that no other jobs exist in the Tampa General Hospital which she could perform despite her disabling condition. Her only other training is in the photography field and the evidence shows that she no longer would be able to perform this type of work in view of her inability to stand and walk for any appreciable length of time as required in the taking of photographs and their processing in a dark room. The fact that Petitioner has not sought employment is attributable to her present incapacity to perform any useful occupation and, in any event, is not required to establish her right to disability retirement. Although the reports of Doctors' Cordrey and Kriz place her permanent partial impairment at only 10 percent of the right leg, these reports, that of Dr. Hardee, and the employer's Statement of Disability, show that the Petitioner cannot perform meaningful employment. The unrebutted testimony of the Petitioner and her sister at the hearing supplemented by the above-mentioned documentary evidence, is sufficient to establish total and permanent disability under the statute. It was incumbent upon the Respondent if it so desired, to show that some form of employment was actually within the reach of the Petitioner, in order to obviate a determination that the claimant is totally and permanently disabled.
Petitioner did not incur disability in line of duty within the meaning of 121.01(13), Florida Statutes, which requires that the injury or illness must "arise out of and in the actual performance of duty required by a member's employment during his regularly scheduled working hours or irregular working hours as required by the employer" (emphasis supplied). It is true that the personal mission which Petitioner was on at the time of the injury, to wit: moving her car from a dark area of the hospital parking lot to a closer more lighted area, was customarily permitted by her supervisor on a regular basis and can be considered of indirect benefit to the employer in the interests of employee safety. Under workmen's compensation criteria dealing with accidents arising out of and in the course of employment, the injury would probably have been compensatable because it happened on the employer's premises during the workday and was consented to by the employer. However, it is considered that the term "in the course of employment" is a much broader one than "actual performance of duty required by a member's employment", and that such restrictive language of the statute means exactly what it says. That is, an employee must be actually performing duties required by her employment when the injury or illness is incurred. In fact, Petitioner was on a personal errand at the time of the injury and not in the actual performance of required duty. Accordingly, she does not qualify for in line of duty disability benefits under the terms of the statute. Although the Petitioner presented medical evidence along with her application to the effect that her existing heart condition and hypertension may have been aggravated by standing on her feet for long periods of time in the performance of duty, there has been no showing that these illnesses or diseases were causally related to her job duties.
The medical reports accompanying Petitioner's application for retirement were introduced into evidence by the Respondent and were required by
s. 121.091(4)(c), Florida Statutes, and paragraph 22B-4.07C2, Florida Administrative Code, to support Petitioner's application. At the hearing, Petitioner introduced into evidence, without objection by Respondent, four medical reports which supplemented and explained the nature and extent of the Petitioner's medical condition and disability. The Respondent contended at the hearing that the medical reports were hearsay evidence which, under the provisions of s. 120.58(1)(a), Florida Statutes, are not sufficient in themselves to support a finding unless they would be admissible over objection in civil actions. The provisions of the retirement act not only contemplate, but indeed require as proof of disability, the submission of two medical certifications which necessarily are hearsay in nature. Reliance for the determination by the Hearing Officer of total and permanent disability rests upon these required reports, the testimony of witnesses and the employer's Statement of Disability. The additional medical reports which were introduced at the hearing, without objection by the Respondent, supplement and explain the other evidence.
It is the recommendation of the undersigned Hearing Officer that the petitioner's application for retirement as a result of total and permanent disability be granted under the provisions of s. 121.091(4)(b) and (d)2, Florida Statutes.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Robert W. Walkley, Esquire L. Keith Pafford, Esquire
