JOYCIE T. BOLINGER, )
vs. ) CASE NO. 75-1213
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on September 15, 1975, at Ocala, Florida.
By this petition, Joycie J. Bolinger, Petitioner, seeks an administrative hearing to challenge the legality of the State Retirement Directors' intended deposition of her application for disability retirement. At the hearing held on September 15, 1975 two medical witnesses, a supervisor of petitioner, and petitioner testified on behalf of the Petitioner. In addition, three letters from Dr. Ferre, a deposition of Mrs. Bolinger, a deposition of Dr. Gillman, a letter from Dr. Gillman, the medical reports from the Workman's Compensation file, and Compensation Order of the Judge of Industrial Claims were admitted into evidence. The facts are basically undisputed.
While employed at the McPherson School for Girls near Ocala, Florida, petitioner, on January 23, 1973, tripped over a tree root, fell and sustained injuries. At the time of the accident petitioner, a housemother at the school, was escorting the girls under her care from the dining hall back to the dormitory.
Following first aid treatment, and x-rays which disclosed a fractured rib, petitioner was advised to see her family physician. She began complaining of headaches, neck pains, lower back pains and leg pains, the latter of which
persisted following her return to duty some six weeks later. As a result of this problem, petitioner was unable to continue working.
Various medical evaluations were made and x-rays of the lumbosacral spine showed "spondylolisthesis of L5-S1 and a defect of pars
inarticularis and approximately one inch forward slippage of L5 on the sacrum." Dr. Ferre feels the petitioner "has either suffered a traumatic spondylolisthesis as a result of the injury or more likely aggravated the preexisting congenital condition. Because of arteriosclerosis in her abdominal area and a possible aneurism, surgery, which could correct the defect, is contraindicated.
The Respondent admits that the petitioner is totally and permanently disabled, but contests the in-line-of-duty finding on the grounds that the accident, which occurred while petitioner was engaged in the performance of her assigned duties would not have caused permanent and total disability except for the preexisting spondylolisthesis. The evidence is uncontradicted that prior to the January 23, 1973 accident petitioner was physically qualified to perform the duties of housemother at the McPherson school.
CONCLUSIONS OF LAW
Section 121.02(13) Florida Statutes provides in part: "Disability in line of duty" means an injury or illness
arising 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 required by the employer.
Section 121.091(4)(a) Florida Statutes provides in pertinent part: "...a member who becomes totally and permanently
disabled in line of duty regardless of service,
shall be entitled to a monthly disability benefit."
Section 121.091(4)(f), Florida Statutes, lists those disabilities which shall not entitle a member to retirement benefits. None of those so listed are applicable here.
Here there is no question that the accident which petitioner experienced on January 23, 1973 occurred while petitioner was engaged in the performance of her assigned duties. Nor is there any question that the accident aggravated a preexisting condition, which was not disabling prior to the accident and is now disabling. Accordingly the permanent and total disability of the petitioner was proximately caused by the accidental fall on January 23, 1973.
To hold that the accident only results in a partial disability because without the preexisting congenital condition permanent and total disability would not have resulted, would lead to speculation and result in purely subjective findings in every disability determination. Few people approach retirement age without certain disabilities which render them more susceptible to disabling injuries than is the younger employee. As an example a 50 year old employee is more likely to have a disabling heart attack than is a 21 year old while each is engaging in the same activity. Apart from this the statute does not differentiate between aggravation of a preexisting condition by an accident
which occurs in line of duty and any other type of disability. All that is required is that the injury leading directly to the total and permanent disability occurs while the employee is engaged in the actual performance of duty required by the member's employment during his regularly scheduled working hours or irregular working hours as required by the employer.
From the foregoing it is concluded that Joycie T. Bolinger is permanently and totally disabled; that the disability is the proximate result of a fall she sustained on January 23, 1973; and, that, at the time of the fall, Mrs. Bolinger was engaged in the actual performance of her assigned duties. It is therefore,
RECOMMENDED that Joycie T. Bolinger receive disability retirement benefits for a member whose disability occurred in line of duty.
DONE and ENTERED this 1st day of October, 1975, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
