Judges: DIANE D. TREMOR
Agency: Department of Management Services
Latest Update: Feb. 01, 1977
Summary: The issue presented for decision in this matter is whether petitioner is entitled to disability retirement benefits pursuant to F.S. Section 121.091(4). 1/Petitioner was not entitled to disbility retirement when condition was not disabling when he retired, but was aggravated by later activity.
75-1165
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DONALD H. JONES, )
)
Petitioner, )
)
vs. ) CASE NO. 75-1165
)
DIVISION OF RETIREMENT, ) DEPARTMENT OF ADMINISTRATION, ) STATE OF FLORIDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane E. Tremor, held an administrative hearing in Room 358, State of Florida Office Building, 1350 Northwest 12th Avenue, Miami, Florida at 10:00 A.M., on September 30, 1975.
APPEARANCES
For Petitioner: Richard A. Sicking, Esquire
KAPLAN, DORSEY, SICKING & HESSEN, P.A.
Post Office Drawer 520337 Miami, Florida 33152
For Respondent: L. Keith Pafford, Esquire
Division of Retirement
530 Carlton Building Tallahassee, Florida
ISSUE
The issue presented for decision in this matter is whether petitioner is entitled to disability retirement benefits pursuant to F.S. Section 121.091(4). 1/
FINDINGS OF FACT
Having heard the testimony presented and considered the exhibits received into evidence at hearing, it is found as follows:
On April 30, 1973, petitioner was employed by Metropolitan Dade County as a fire lieutenant, when he injured his back while unloading fire hoses. 2/ He then took some vacation time and returned to work for about three months. He saw a medical doctor during this time for pain in his right hip and lower back. For a while, his back pains seemed to improve, but then got worse again.
In August of 1973, petitioner again injured his back at work when responding to an emergency. Dr. Ray Lopez saw petitioner after this second injury and put him in the hospital. Apparently, petitioner did not return to work after August 30, 1973.
On September 10 or 11, 1973, Dr. Hubert Aronson performed surgery on petitioner and removed a herniated disc. According to Dr. Aronson, on September 25, 1973, petitioner's legs were free of pain, but he was still having some back pains, as he was on October 16, 1973. His pain in his right leg had abated somewhat after the surgery.
On October 24, 1973, petitioner suffered a gunshot wound to the abdomen. The bullet entered the spinal canal and cut some of the nerve roots inside the spinal canal. Immediately after the gunshot wound, petitioner had a partially paralyzed left leg. Abdominal surgery was performed in connection with the gunshot wound.
In December of 1973, a third operation was performed on petitioner. This operation was also related to the damage done by the gunshot wound.
After the gunshot wound, petitioner began to have pain recurring in the right leg. Since his left leg was paralyzed as a result of the gunshot wound, he was having to use his right extremity almost exclusively in his ambulation. His complaints from this point forward relate primarily to pain in his right leg, right hip, and lower back.
As noted above, petitioner did not return to work after August 30, 1973. Petitioner is now receiving benefits under a
long-term disability program by Metropolitan Dade County, which determined that petitioner was, for that purpose, totally and permanently disabled as a result of the work-related accidents and was not capable of being placed in any of its approximately 500 job classifications.
It was petitioner's testimony that although the pain in his right leg and hip is somewhat relieved by medication, he is still uncomfortable even with the medication. He testified that he cannot sit or stand for any long period of time and only gets relief when he lies down. He stated that although he would like to work, he does not feel that he is able to do so because of his pain and the resulting medication. Petitioner is 39 years of age, has a high school education and has been employed as a plasterer, as well as a firefighter.
It was Dr. Aronson's opinion that petitioner received a twenty-five percent permanent physical impairment as a result of the work-related injuries. As to the injuries resulting from the gunshot wound, Dr. Aronson estimated the permanent physical impairment to be forty or fifty percent. The combination of the work-related injuries and the gunshot wound would be less than seventy-five percent. In answer to questions regarding petitioner's ability to work, Dr. Aronson opined that petitioner would not be able to be an active firefighter and, as to other jobs, Aronson stated that only the petitioner could answer that question because he is the one who suffers the pain. Dr. Aronson did state that, while the gunshot wound produced the greater physical impairment, the work-related injuries produced the greater disability due to the pain involved.
Dr. Ray Lopez felt that the gunshot would aggravate the prior work-related injuries. Had petitioner not been shot, he may have been able to return to work in some capacity with the fire department. Even after the gunshot wound, it was Dr. Lopez's opinion that while petitioner could not return to work as an officer in the fire department, he may "potentially, eventually be rehabilitated in some other type of endeavor".
CONCLUSIONS OF LAW
In order to be eligible for disability retirement benefits under the Florida Retirement System, the member must be totally and permanently disabled. F.S. Section 121.091. Although much evidence was presented as to which injury produced the greatest impairment or disabling effects, the real issue in this case is whether petitioner is, in fact, totally and permanently
disabled within the meaning of Section 121.091(4)(b). If he is not, there need be no determination of which injury is the cause of his disability. F.S. Section 121.091(4)(b) provides that
"A member shall be considered totally and permanently disabled if, in the opinion of the administrator, he is prevented,
by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee."
Thus, the question becomes whether or not the physical impairments suffered by petitioner prevented him from rendering useful and efficient service as an officer or employee. The fact that Metropolitan Dade County classified petitioner as totally and permanently disabled, while persuasive, is not determinative of this issue.
All the testimony and evidence confirms the fact that petitioner does experience pain in his right leg, right hip and lower back. However, it is my conclusion that petitioner failed in his burden to prove that such pain prevents him from rendering useful and efficient service as an employee. No doubt the petitioner suffers a disability. But, the statute requires a total and permanent disability. Here, there was evidence that the petitioner's physical impairment is not total and there is little, if any, evidence as to the duration of his disability. While there was evidence that petitioner could probably not function as an active firefighter, there was no evidence that he would be incapable of performing other tasks as an employee.
I would note parenthetically that even if it were determined that petitioner is now totally and permanently disabled, as defined by Section 121.091(4)(b), the preponderance of the evidence in this case indicates that were it not for the gunshot wound, which occurred after petitioner terminated his employment and which aggravated the pain he now experiences, petitioner would definitely be capable of rendering useful and efficient service as an employee. While aggravation of a preexisting condition is not one of the three nonadmissible causes of disability listed in F.S. Section 121.091(4)(f), said section does list "injury or disease sustained by the member after his employment has terminated."
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is my recommendation that petitioner's request for disability retirement benefits be denied.
Respectfully submitted and entered this 30th day of October, 1975, in Tallahassee, Florida.
DIANE E. TREMOR
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
904/488-9675
ENDNOTES
1/ It should be noted that prior to the taking of testimony in this matter, the petitioner's attorney challenged the constitutionality of Section 121.09(4) on various grounds. Said attorney was informed that an administrative hearing was not the proper forum to obtain a ruling on the constitutionality of a statue, and the hearing then proceeded on the facts giving rise to this dispute.
2/ There was some conflict in the evidence as to whether petitioner had had prior back problems. Petitioner testified that he had not, but Dr. Lopez testified that petitioner told him that he had had two prior histories of back pain, some ten years ago.
COPIES FURNISHED:
L. Keith Pafford, Esquire Division Attorney Division of Retirement
530 Carlton Building Tallahassee, Florida 32304
Richard A. Sicking, Esquire KAPLAN, DORSEY, SICKING & HESSEN
1951 Northwest 17th Avenue Miami, Florida 33125
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DIVISION OF RETIREMENT
STATE RETIREMENT COMMISSION
DONALD H. JONES,
Petitioner,
vs. CASE NO. 75-1165
DIVISION OF RETIREMENT, DEPARTMENT OF ADMINISTRATION STATE OF FLORIDA,
Respondent.
/
FINAL ORDER REPLACEMENT STIPULATION IN RE: DONALD H. JONES
Having heard the testimony presented and considered the exhibits received into evidence at an administrative hearing, held at Petitioner's request, it is hereby stipulated by the parties that:
On April 30,1973, Petitioner was employed by Metropolitan Dade County as a fire lieutenant, when he injured his back while unloading fire hoses. He then took some vacation time and returned to work for about three months. He saw a medical doctor during this time for pain in his right hip and lower back. For a while, his back pains seemed to improve, but then got worse again.
In August of 1973, Petitioner again injured his back at work when responding to an emergency. Dr. Ray Lopez saw Petitioner after this second injury and put him in the hospital. Apparently, Petitioner did not return to work after August 30, 1973.
On September 10 or 11, 1973, Dr. Hubert Aronson performed surgery on Petitioner and removed herniated disc. According to Dr. Aronson, on September 25, 1973, Petitioner's legs were free of pain, but he was still having some back pains, as he was on October 16, 1973. His pain in his right leg had abated somewhat after the surgery.
On October 24, 1973, Petitioner suffered a gunshot wound to the abdomen. The bullet entered the spinal canal and cut some of the nerve roots inside the spinal canal. Immediately after the gunshot wound, Petitioner had partially paralyzed his left leg. Abdominal surgery was performed in connection with the gunshot wound.
In December of 1973, a third operation was performed on Petitioner, This operation was also related to the damage done by the gunshot wound.
After the gunshot wound, Petitioner began to have pain recurring in the right leg. Since his left leg was paralyzed as a result of the gunshot wound, he was having to use his right extremity almost exclusively in his ambulation. His complaints from this point forward relate primarily to pain in his right leg, right his, and lower back.
As noted above, Petitioner did not return to work after August 30, 1973. Petitioner is now receiving benefits under a long-term disability program by Metropolitan Dade County, which determined that Petitioner was, for that purpose, totally and permanently disabled as a result of the work-related accidents and was not capable of being placed in any of its approximately 500 job classifications.
It was Petitioner's testimony that although the pain in his right leg and hip is somewhat relieved by medication, he is still uncomfortable even with the medication. He testified that he cannot sit or stand for any long period of time and only gets relief when he lies down. He stated that although he would like to work, he does not feel that he is able to do so because of his pain and the resulting medication. Petitioner is 39 years of age, has a high school education and has been employed as a plasterer, as well as a firefighter. This testimony is generally supported by competent substantial evidence.
Medical testimony demonstrates that Petitioner was recovering from his work-related injury at the time he suffered
his gunshot wound and he would have been able to return to his employment if he had not been shot.
When Petitioner suffered his gunshot wound, he was receiving sick pay, so he could not be considered as having terminated his employment at the time he suffered that injury.
Medical testimony demonstrates that the gunshot wound rendered Petitioner totally and permanently disabled.
As the gunshot wound was not related to Petitioner's employment, his disability cannot be considered as in-line-of- duty, but Petitioner and Respondent both agree that Petitioner is totally and permanently disabled, and became so before he terminated his employment.
In view of the foregoing facts, Petitioner and Respondent agree that Petitioner is entitled to regular disability benefits under the Florida Retirement System.
As all pertinent evidence of Petitioner's disability was not presented to Respondent until it was introduced at the administrative hearing held on September 20, 1975, Petitioner and Respondent agree that the date of Petitioner's disability retirement should be October 1, 1975.
As it is the province of the State Retirement Commission to take final agency action in all proceedings respecting applications for disability retirement, Petitioner and Respondent hereby submit this Stipulation to the Commission for its approval and adoption.
Richard A. Sicking L. Keith Pafford Post Office Drawer 520337 Division Attorney
Miami, Florida 33152 Division of Retirement
530 Carlton Building Tallahassee, Florida 32304
Attorney for Petitioner Attorney for Respondent
After reading the record in this cause and finding this Stipulation to be based upon competent substantial evidence, it is hereby approved and adopted by this Commission on this 10th day of December, 1975, and is the final agency action in the appeal of Donald H. Jones.
Chairman
Docket for Case No: 75-001165
Orders for Case No: 75-001165
| Issue Date |
Document |
Summary |
|
Dec. 10, 1975 |
Agency Final Order
|
|
|
Oct. 30, 1975 |
Recommended Order
|
Petitioner was not entitled to disbility retirement when condition was not disabling when he retired, but was aggravated by later activity.
|
