STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANKIE G. WATSON, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1150

) STATE OF FLORIDA, DEPARTMENT ) OF ADMINISTRATION, DIVISION OF ) RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

THIS CAUSE came on to be heard upon due notice to parties, at the Monroe County Courthouse, 500 Whitehead Street, Key West, Florida, at 1:00 P.M., August 26, 1975, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Hugh J. Morgan, Esquire

HARRIS, ALBURY & MORGAN

317 Whitehead Street

Key West, Florida 33040

For Respondent: L. Keith Pafford, Esquire

530 Carlton Building Tallahassee, Florida 32304

ISSUE

1. Whether Petitioner is entitled to in line of duty disability retirement as defined in Section 121.021(13), Florida Statutes.

   
   

2. Whether the Petitioner's retirement date should be established immediately following her termination of service as a full time employee of the State of Florida.

The parties had no motions or other preliminary matters to be considered prior to the presentation of evidence.

Both parties stipulated that the Petitioner is entitled to disability retirement benefits as a result of total and permanent disability within the meaning of Section 121.091(4)(b), Florida Statutes.

The Respondent introduced into evidence Respondent's Exhibits 1 - 4 which consisted of medical reports and other documents filed by the Petitioner pursuant to her application for retirement which are a part of her official records in the Division of Retirement. The exhibits also include copies of correspondence concerning her application with the Division of Retirement.

Exhibit 24, a medical report of Dr. Jaime M. Benavides, dated August 26, 1975, was placed in the record for the first time by the Petitioner at the hearing. Neither of the parties objected to the admission of Exhibits 1 - 24.

Counsel for Petitioner and Respondent made opening statements, and closing arguments.

The Petitioner presented the testimony of four witnesses, including herself, at the hearing. Respondent had no witnesses.

The parties stipulated that: Petitioner became an employee of Monroe County in March, 1956 and remained in that status until 1962 and also from 1963 until October 1, 1971 when she commenced employment for the State of Florida.

She transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System on December 1, 1970. She remained a member of the Florida Retirement System until her termination of employment on September 28, 1973, at which time she had 16.5 years creditable service under the Florida Retirement System.

FINDINGS OF FACT

1. Petitioner was born April 20, 1916. She began work for Monroe County in March of 1956 as a Counselor for the County Juvenile Court. Her area of responsibility was from ten miles north of Marathon, Florida, to the Dade County line encompassing the upper Florida Keys. She traveled constantly in performance of her duties which consisted of handling juvenile probationers, child abuse cases, dependency cases, and the like. In the course of her employment, she traveled constantly over an area of approximately 70 miles in length making visits to homes, talking to parents and the troubled children, evaluating them and reporting back to the Court as to whether or not they were complying with the terms of their probation. In 1962, her husband was transferred to the lower Keys and, for a brief period, she had to wait for a job opening in Key West. In 1963, she again was employed by the Juvenile Court in the same capacity that she had held previously. During this period of time, she additionally had to handle court cases and prepare various reports to be furnished to State agencies. She had no secretary to assist her in these matters and consequently was quite busy with field work and administrative duties. At this time, she was living in Big Pine Key which is approximately 37 miles north of Key West, and her territory was from South of Marathon to Key West, a distance of approximately 31 miles. In the course of her employment, she traveled an average of about 100 miles a day. In 1970, she was also obliged to work from Key West to the Dade County line for a period of a year because the Juvenile Court Judge had discharged the counselor who had had that additional area of responsibility. During this period, Petitioner was responsible for all of the delinquencies and dependent female children for the entire area and, although her hours of employment were supposed to be 40 hours a week, it turned out that she was on call 24 hours a day as a practical matter. She was frequently called at home at dinner time or in the middle of the night to pick up an abused child. She would normally receive several calls a night dealing with her duties.

   
   

2. In October, 1971, she began employment with the State of Florida, Division of Youth Services, Bureau of Field Services, as a Youth Counselor II, performing essentially the same duties as she had previously performed for the County. On March 30, 1972, while in the office doing a report, her mind went blank and she was unable to function or remember anything. She felt like her whole body had fallen apart. A doctor was called and she was hospitalized for

   about 10 days at which time she was released on the condition that she remove herself from her current environment. She thereupon went to Virginia and stayed approximately six weeks with her son and then continued a five month leave of absence from her employment. She had been under the care of Dr. H. T. Rowland since February 17, 1971 suffering from headaches, dizziness, anxiety, and depression which had increased severely over the years. Her hospitalization in March of 1972 was for a severe depressed anxiety reaction and her history at that time revealed extreme fatigue and inability to execute the usual task performance required in her work. She also sought the assistance of a psychiatrist in Miami, Dr. Walter White. (Respondent's Exhibits 1,13a)

   
   

3. After this nervous breakdown, her supervisors asked her to come back to work and indicated that if she did, her area of responsibility would be reduced. Inasmuch as she felt able to come back after her leave of absence, she returned to her former employment in August of 1972. At this time, her area was reduced by eliminating the Key West area and limiting her territory to a 40 mile radius. She had an office at Marathon with a secretary to assist her. Although she had less probations to handle than she had previously, there was more written work to perform and she was still constantly on the road making home visits to parents and children. The driving which she was obliged to perform including driving to and from work, resulted in her having headaches of a severe nature. A typical aspect of her work was to receive a complaint concerning an abused or delinquent child from a neighbor or the Sheriff's office, at which time she would call on the parents and the child to determine what disposition should be made. As a result of her interview, she would fill out various forms and forward them with her recommendations to the State Attorney in Key West. If the child were processed in the court and put on probation, she would then become the probation officer. It was difficult for her to then gain the child's confidence because she was the one who had originally processed the youth through the court system. She had approximately 35 children on probation at all times. Her workload and responsibilities were the same as those which were performed by three state employees in the Key West area. Her job was quite frustrating in that she had to act more or less as a substitute parent on many occasions to see that the children were in school or had a job, to transport them to mental health facilities, to counsel parents, to try and bring about reconciliations between parents and their children, and find homes for those girls who had been ejected from their homes by their parents. Since the State's policy was to minimize detention, Petitioner was obliged to try and find private citizens who would take, them in. At times she spent her own money on food and clothing for these wayward or abused girls.

   
   

4. On September 28, 1973, Petitioner suffered a second nervous breakdown from which she lost approximately fifteen pounds and became unable to work thereafter. She was medically examined on August 23, 1973, complaining of a feeling of fullness and stuffiness in the ears together with some discomfort in swallowing. Examination by the physician at that time led to his conclusion that her symptoms were those of stress and not due to physical disease.

   (Respondent's Exhibit 3) On September 18, 1973, Petitioner had shown symptoms of depression which were most likely due to her occupation. (Respondent's Exhibit 2) She had also been seen by an Orthopedic Surgeon in Key West on July 30th, 1973, complaining of headaches, loss of balance and diminished hearing and eyesight. She was seen again by him on September 10th complaining of continuing neck pain aggravated by flexion and extension and that she had become progressively more nervous, depressed and had loss of appetite and difficulty in swallowing. The physician stated his opinion that the stresses of her work were more than she could handle and it was believed that she should retire. (Respondent's Exhibit 4)

5. On October 18, 1973, Petitioner applied to the Division of Retirement for disability retirement. (Respondent's Exhibit 7) Her application was accompanied by a Statement of Disability in which she attributed her incapacitation for further service to the mental stress caused by her employment and wherein she asserted that she was unable to cope with her job problems anymore. In this form, she stated that her disability was in line of duty. (Respondent's Exhibit 8) Her application was accompanied by statement of two physicians. Dr. Miguel Eisen of Key West diagnosed her condition as occupational depression of continuing nature and stated that her treatment was retirement from her present occupation and that she should refrain from driving to and from work. (Respondent's Exhibit 5) Dr. H.T. Rowland of Marathon diagnosed her condition as anxiety and depression with treatment of psychotrophic drugs and prognosis poor. (Respondent's Exhibit 6) In a statement accompanying his report, Dr. Rowland found that, in addition to her subjective emotional problems, Petitioner had severe hypertrophic degeneration of the cervical vertebrae which he believed to be greatly aggravated by her work. She also had a metabolic condition requiring thyroid medication. In his opinion, she was physically and emotionally unable to perform her job of counseling delinquent juveniles. (Respondent's Exhibit 1).

   
   

6. On November 21, 1973, the Director of the Division of Retirement disapproved her application for disability retirement with the comments "apparently unable to handle her present job but records do not indicate that she cannot perform satisfactorily in another position." (Respondent's Exhibit

   9) She was informed of this decision by letter of the Division, dated December 4, 1973. (Respondent's Exhibit 10)

   
   

7. On December 11, 1973, Petitioner was examined by Dr. M.L. Escoto, a Psychiatrist in Key West Florida. In a report which he rendered to Dr. Rowland, dated December 20, 1973, he stated as his impression that Petitioner was suffering from an acute anxiety neurosis with depression. He stated that the precipitating factor had been the tremendous amount of pressure she had had in the past because of her work and while her sons were in Vietnam. He concluded that she was unfit for continuation of her work and that there was enough basis to grant her benefits of retirement under medical disability. He further stated that return to work would undoubtedly result in an exacerbation of emotional conflicts and/or psychiatric hospitalization. (Respondent's Exhibit 11A, Ex.12)

   
   

8. In a report to Petitioner's attorney, dated April 22, 1974, Dr. Rowland clarified his prior opinion to state that Petitioner is incapacitated permanently, that the disability was sustained in the line of duty and that he did not believe the patient would ever be able to work effectively in any capacity. (Respondent's Exhibit 14)

   
   

9. On May 20, 1974, Dr. Benavides supplemented his October 8, 1973, report with a letter to Petitioner's attorney, stating that he did not feel that she was able to work and therefore could be considered totally and permanently disabled from rendering useful and efficient services as an officer or an employee. (Respondent's Exhibit 15)

   
   

10. By letter of June 5, 1975, Petitioner was advised by the Division of Retirement that although her application and supporting documents did not establish line of duty disability retirement, it did establish regular disability retirement as described in Section 121.091(4)(b), Florida Statutes. This letter indicated that Petitioner had been notified that she had been approved for regular disability retirement benefits on February 14, 1975.

    (Respondent's Exhibit 20)(However, this letter of notification was not offered into evidence.) Petitioner was advised that her retirement date was established as February 1, 1975, according to Section 121.091(4)(a), Florida Statutes, because the Division did not receive "medical documentation which indicated your total and permanent disability until January of 1975."

    
    

11. A physician's report of disability, dated August 26, 1975, from Dr. Benavides was presented at the hearing which diagnosed petitioner's condition as headaches, loss of balance, hearing and eyesight, aggravated by certain motions and by driving a car and sitting at a desk doing paper work; neck pain, nervousness, depression, loss of appetite and difficulty in swallowing. His prognosis in this report was that the stresses of the Petitioner's work were more than she could handle; that she is not able to work and therefore would be considered totally and permanently disabled in line of duty. (Respondent's Exhibit 24)

    
    

12. Petitioner had two sons serving in the armed forces in Vietnam, one from January, 1970 to March 1971, and one from June 10, 1971, to March 23, 1972. Neither of their assignments involved direct combat duty and Petitioner stated that she was not unduly concerned as to their safety.

    
    

13. Petitioner's secretary and a friend both testified that they had seen her problems mounting over the years and that she had progressively become very nervous.

    
    

14. Petitioner has not been employed since, September 28, 1973.

    
    

    CONCLUSIONS OF LAW

    
    

15. Petitioner is totally and permanently disabled within the meaning of Section of 121.091(4)(b), Florida Statutes, in that she is prevented by reason of a medically determined physical or mental impairment from rendering useful and efficient service as an officer or employee. The fact of her total and permanent disability has been conceded by the Division of Retirement. (Respondent's Exhibit 20)

    
    

16. Petitioner was disabled in line of duty within the meaning of Section 121.021(13), Florida Statutes, from an illness arising out of and in the actual performance of duty required by her employment during her regularly scheduled working hours or irregular working hours as required by the employer. The evidence is abundant to establish that the two nervous breakdowns suffered by Petitioner in successive years came about as a result of her performance of duty during the workday and during the hours of night when she was called upon to perform services involving juveniles. This conclusion is supported not only by Petitioner's testimony and that of her secretary and other witnesses, but also by the medical reports which establish that the nature of her illness was occasioned by the stress and turmoil which the nature of her duties imposed upon her. Although Petitioner disclaims the fact that her sons being in Vietnam prior to her first breakdown had any bearing on her subsequent problems, it is concluded that a mother's natural worry concerning her children contributed in some intangible degree to her present condition. However, any such contribution would be considered minimal and of no great significance in the overall conditions which prompted her incapacity to work. The evidence paints a picture of an overworked woman dealing with the most pressing of human problems which she was unable to escape after normal duty hours. Indeed, the very nature of her duties required that she be available at all times to counsel children and their parents and to take appropriate action if incident's arose which required

    referrals to the court. Her driving of a motor vehicle extensively during the working day over a substantial area was undoubtedly taxing and contributed to her overall stressful condition.

    
    

17. Petitioner's disability retirement date is established as February 1, 1975, under the criteria set forth in Section 121.091(4)(a), Florida Statutes, which provides that the disability retirement date shall be the first day of the month which coincides with or next follows the date the administrator approves payment of disability retirement benefits. Inasmuch as the disability claim was not approved until February, 1975, the date of February 1, established by the Division of Retirement is legally correct. Although the application for retirement and supporting medical statements were forwarded to the Division in the fall of 1973, the evidence reflects that the administrator did not believe that sufficient evidence as to total and permanent disability had been submitted until January, 1975. The statute is clear that the disability retirement date hinges upon the date the administrator approves payment of disability retirement benefits.

RECOMMENDED ORDER

It is recommended that Petitioner be granted disability retirement benefits for total and permanent disability incurred in line of duty, retroactive to February 1, 1975.

DONE and ORDERED this 17th day of September, 1975, in Tallahassee Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

L. Keith Pafford, Esquire

530 Carlton Building Tallahassee, Florida 32304

Hugh J. Morgan, Esquire HARRIS, ALBURY & MORGAN

317 Whitehead Street

Key West, Florida 33040

Docket for Case No: 75-001150

Orders for Case No: 75-001150