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CHARLES E. KELLUM vs. DIVISION OF RETIREMENT, 77-000465 (1977)

Court: Division of Administrative Hearings, Florida Number: 77-000465 Visitors: 32
Judges: DELPHENE C. STRICKLAND
Agency: Department of Management Services
Latest Update: Nov. 26, 1979
Summary: Petitioner is entitled to disability benefits.
77-0465.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


CHARLES E. KELLUM, )

)

Petitioner, )

)

vs. ) CASE NO. 77-465

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)


RECOMMENDED ORDER


This cause was submitted to the undersigned Hearing Officer for a determination "on the issues presented in the pleadings" without a hearing. The facts and certain evidence were submitted by stipulation. Formal hearing was waived, and both parties have submitted memoranda of law and proposed recommended orders which were considered in this order.


APPEARANCES


For Petitioner: Melvin R. Horne, Esquire

Post Office Drawer 1140 Tallahassee, Florida 32202


For Respondent: E. Douglas Spangler, Jr., Esquire

Stephen S. Mathues, Esquire Division of Retirement

530 Carlton Building Tallahassee, Florida 32301


FINDINGS OF FACT


  1. The parties entered into a stipulation, which is attached hereto and made a part hereof, but is quoted for the sake of clarity:


    Stipulated Facts


    1. Petitioner is Charles E. Kellum whose address is 10420 SW 119th Street, Miami, Florida.

    2. Petitioner is a forty-two (42) year-old male whose education consists of a graduate equivalency degree received while serving in the Air Force from 1954 through 1958. His Air Force work and training was as a fire fighter in the Crash Rescue and Fire Department of the United States Air Force.

    3. In 1959, Petitioner became employed with the Sheriff's Department of Dade County, Florida, as a motorcycle officer and first joined the Florida retirement system then in

      effect for county employees. Later, Petitioner changed to what is now known as the Florida Retirement System.

    4. While employed by Dade County, while on duty, and while a member of the Florida Retirement System or its predecessor, Petitioner was involved in four (4) accidents. The accidents and injuries sustained are as follows:

      1. In 1964, Petitioner was in a motorcycle accident for which he first received treatment from Dr. Samartino for abrasions and contusions;

      2. In a separate motorcycle accident, on February 16, 1965, Petitioner sustained a fractured radial head of the right elbow. In

        surgery that month the radial head was removed. In April, 1965, the end of the ulna was removed. In November, 1965, certain reconstructive surgery was attempted to increase the motion in his right arm. Subsequent reconstructive surgery was attempted in February, 1966. (Deposition of Dr. Samartino, pages 8 - 11);

      3. In an on-duty accident in March, 1970, Petitioner fell and injured his knee and underwent surgery on the knee in April of 1970.

      4. In May, 1974, Petitioner was involved in an accident wherein, while making an arrest, he fell on a rocky terrain and suffered re- injury to his arm and knee and injury to his back. (Deposition of Kellum, pages 4 - 5).

    5. That Petitioner was retired from Dade County for medical reasons in May, 1974. He has not been employed since, except for approximately one year he was operating a small lawn maintenance business with the help of his son and another helper. His activities are limited to driving a truck and soliciting business.


      Stipulated Evidence


      Exhibit 1 - The deposition of Charles Kellum, Petitioner

      Exhibit 2 - The application for retirement benefits filed December 9, 1974, and the employer's statement of disability dated December 6, 1974.

      Exhibit 3 - The reports of Dr. Toth dated December 9, 1974, and August 6, 1974.

      Exhibit 4 - The reports of Dr. Gilbert dated December 9, 1974, and October 30, 1974.

      Exhibit 5 - The reports and deposition of Dr.

      Samartino.

      Exhibit 6 - The reports and deposition of Dr.

      Jacobson.

      Exhibit 7 - The deposition of Harry Windler, pages 8 - 14 and pages 19 - 36.

      Exhibit 8 - The letter from the Director of Retirement dated April 10, 1975.


  2. Upon a consideration of the evidence further findings of fact are:


    1. The various in-line-of-duty injuries and back pain suffered by Petitioner caused his involuntary retirement from the Dade County Department of Public Safety in 1974, after an injury on May 4, 1974. Petitioner applied for work with the police department, and wants and has wanted to return to some kind of law enforcement or police work.


    2. Respondent through its administrator, as provided in Section 121.091(4), Florida Statutes, denied Petitioner Kellum's disability retirement benefits by letter dated April 10, 1975, a copy of which is marked Exhibit "A" and make a part hereof. Petitioner requested an administrative hearing in April of 1975. The Respondent denied the petition as being untimely but thereafter revoked the denial and requested the Division of Administrative Hearings to hold a hearing on the issues presented.


    3. The employer, Metropolitan Dade County Department of Public Safety, in its statement of disability stated that "physicians' statements indicate that this employee is unable to perform police duties." It also stated that no other jobs in the organization, suitable to the applicant's abilities, exist consistent with his classification.


      The departmental policy of the Metropolitan Dade County Department of Public Safety is to phase out employees who have become liabilities from an insurance risk management point of view.


    4. Because of the stringent minimum physical requirements imposed upon law enforcement officers in Dade County, Florida, Petitioner cannot perform his duties as a policeman or law enforcement officer and could not be re- employed in that position. There are no permanent sheltered positions for law enforcement personnel.


    5. Doctors Alex Toth and Robert G. Gilbert stated that Petitioner's condition is "prognosis guarded." They both stated that Petitioner was unable to perform regular duties. Dr. Toth stated Petitioner was "completely disabled," and Dr. Gilbert stated "for all intent and purposes, this patient is totally disabled."


      Dr. G. Thomas Samartino, in answer to the question, "At this time, in 1977, do you forecast any further degeneration in his health due to that particular diagnosis?" (degenerative arthrosis of the right elbow), answered "Yes." He further stated that he could not really forecast disability but that "it may stay pretty much the way it is or get a whole lot worse," and noted that there has been no improvement since 1966. He stated Petitioner suffered a 35 percent disability of the upper right extremity and a 30 percent disability of the body as a whole, which includes pain. All three physicians stated that they felt the Petitioner should not be employed as a policeman.


      Dr. Robert E. Jacobson, a neurologic surgeon, stated that from the functional standpoint the Petitioner would be unable to return to work as a combat policeman, although he could do other type of work. He also stated that

      the numerous injuries and back and neck complaints would add up to a more marked problem than any one would imply.


    6. Petitioner's training was as a fire fighter in the crash rescue fire department while in service of his country from 1954 to 1958. He joined the service immediately out of high school and, before his discharge, took the GED test to get a high school certificate. His employment and further training has been in police work, being employed by the Metropolitan Dade County Public Safety Department in October of 1959, a position he filled for fifteen, (15) years.


      His training after Air Force service consists of little more than on- the-job training for his employment as a motorcycle officer.


    7. Petitioner was self-employed, driving a truck and soliciting business together with two other persons in the yard maintenance work. He applied without success for at least two positions with private employers, but he has not applied for rehabilitative training. His remuneration from his self- employment was approximately $6,000.00 per year, substantially lower than he earned as a police officer, which pay classification is approximately $8,000.00 to $20,000.00.


    8. Petitioner is totally and permanently disabled from rendering useful and efficient service as an employee in police and law enforcement work, but he can perform a useful work service.


  3. Petitioner contends:


    1. That he is permanently and totally disabled from doing the police or law enforcement work for which he is trained and for which he had been employed for some fifteen (15) years, and that his disability arose from his work;


    2. That he is unable to perform materially or substantially all or any of the remunerative duties for which he is educated and trained, and which might permit him to be compensated at or near the compensable rate of a Dade County policeman; and


    3. That he is entitled to the disability benefits authorized by Section 121.091(4), inasmuch as he is totally and permanently disabled to perform duties as a police or law enforcement officer because of injuries he received while on such duty.


  4. Respondent contends:


    1. That Petitioner is not totally and permanently disabled hut only partially disabled, and can and does work and earn an income although he is disabled from performing the duties of his normal occupation; and


    2. That a showing that Petitioner is incapable of performing duties of his usual occupation is not sufficient to obtain disability retirement benefits under the statute.

    CONCLUSIONS OF LAW


    Stipulated Question of Law


  5. Charles Kellum's entitlement to disability benefits pursuant to Section 121.091(4), Florida Statutes, depends solely upon whether he is totally and permanently disabled as the term is defined in that section, based upon the facts presented.


    Stipulated Issue of Material Fact


  6. Whether Charles Kellum is prevented by reason of a medically determinable physical or mental impairment from rendering useful and efficient service as an officer of (sic) employee.


    Section 121.091 provides in part: A

    1. DISABILITY RETIREMENT BENEFIT.--

      1. Disability retirement date.-- A member

        who becomes totally and permanently disabled, as defined in paragraph (b), after completing

        5 years of creditable service, or a member who becomes totally and permanently disabled in line of duty regardless of service, shall be entitled to a monthly disability benefit.

        The disability retirement date for such member shall be the first day of the month which coincides with or next follows the date the administrator approves payment of disability retirement benefits.

      2. Total and permanent disability.-- 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. The decision of the Administrator on these questions shall be final and binding.

    (Emphasis supplied)


  7. Petitioner is totally and permanently disabled as the term is defined in the foregoing section and is entitled to a monthly disability benefit.


  8. Section 121.021 provides in part:


    1. "Employer" means any agency, branch, department, institution, university, institution of higher education, or board of the state, or any county agency, branch,

      department, board, district school board, or special district of the state, or any city

      of the state which participates in the system for the benefit of certain of its employees. (Emphasis supplied)

    2. "Officer or employee" means any person receiving salary payments for work performed in a regularly established position and, if

      employed by a city or special district, employed in a covered group.

      (Emphasis supplied)

    3. "Member" means any officer or employee who is covered or who becomes covered under this system in accordance with this chapter.


  9. The foregoing statute applied to Petitioner as an employee of a county agency and a covered member of the Florida Retirement System.


  10. A regularly "established position" is not defined in Chapter 221, Florida Statutes, but is defined in Chapter 22A-14, Florida Administrative Code:


    ESTABLISHED POSITION -- An authorized position which has been classified in accordance with a classification plan as provided by law.


    CLASSIFICATION PLAN -- A document which formally described the concepts, rules and regulations, and class specifications utilized in the classification and reclassification of

    positions in the Career Service.


  11. Petitioner's termination from his employment was because of the in- line-of-duty injuries suffered while an employee and a member of the Florida Retirement System working "in a regularly established position," and the foregoing rule is applicable to him.


  12. Chapter 121, Florida Statutes, Florida Retirement System, was passed in an attempt to consolidate all "existing" state-administered retirement systems into a single system that would include state, county, city and special district employees throughout Florida. It was not intended to deprive officers or employees of disability benefits. The principal "existing" systems affected by this consolidation were the Teachers Retirement System, Chapter 238, Florida Statutes, the Judicial Retirement System, Chapter 123, Florida Statutes, and a State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes.


  13. The change in determining total and permanent disability in Chapter 121, Florida Retirement System, is from allowing disability retirement benefits for one who is incapable of performing the duties of his usual occupation to allowing disability retirement benefits if ". . . he is prevented from rendering useful and efficient service as an officer or employee" in a regularly "established position" which "has been classified in accordance with a classification plan as provided by law." (definitions Section 121.021 and Rule 22A-14, supra). The change broadens the scope of service to encourage injured officers and employees to seek public service in other covered positions.


  14. Inasmuch as the parties submitted this case to the Hearing Officer for a hearing "on the issues presented in the pleadings," the following points are pertinent to the determination of the cause:


    1. Did the Legislature intend to limit the disability retirement benefits to those who suffer an incapacity to perform any work of any type at any salary as an employee or

      officer? It does not appear that this was the intent.


  15. Petitioner has lost, through his in-line-of-duty injuries, the ability to perform a job requiring similar physical abilities required in his former occupation. The phrase "useful and efficient service as an officer or employee" must be service in a regularly established position covered by the Florida Retirement System, but in Chapter 121 there is no requirement that an employee must be able to find a position such as his former occupation as in the former retirement systems.


  16. The Legislature tied the disability payments to the employee's "average monthly compensation of his disability retirement date." Evidence was not presented as to the salary Petitioner was making at the time of his termination, but his pay classification was between approximately $8,000.00 and

    $20,000.00, and he was a fifteen (15) year employee.


  17. Normal retirement compensation at the time of injury was also tied to the salary am employee made and was figured on a percentage "of the five best years of the last ten years of creditable service prior to retirement, termination or death," Section 121.021(24)(this was amended in 1978, to "the five best years of a career").


  18. Retirement benefits are fiscally planned for and built into the budget of the retirement system, and are based on the compensation allocated to the various regularly established positions (Section 121.061 Funding; Section

    121.071 Contributions). Prior to January 1, 1975, special risk members contributed 8 percent of gross compensation and regular members 4 percent of their gross compensation. The monthly compensation check of Petitioner reflected retirement deductions before he was terminated in 1974. Retirement benefits, both normal and disability, are a form of income protection, and the covered members actually buy disability retirement coverage as well as normal retirement coverage.


  19. The disability retirement benefits section makes an exception to the requirements applicable to those who reach normal retirement age and was promulgated as Subsection (4) of Section 121.091, Benefits payable under the system. These benefits were specifically granted by statute to an employee disabled and discharged because of physical or mental incapacity in lieu of the age and service required of other employees who fortunately suffer no mental or physical disability. There is no special risk or regular member distinction as far as disability benefits are concerned under Section 121.091, Benefits payable under the system.


    1. Does Section 121.091(4)(b) extend the test for determining "disability" to work as an officer or employee in the private sector? It appears not.


  20. See the definitions in Section 121.021(10), (11), and (12), and in Rule 22A-14, supra, which clearly define the terms "officer" and "employee."


    1. Is it incumbent upon the employer to offer an employee employment he can do within his job classification when he is disabled from doing his former job? The Hearing Officer finds no such requirement.

  21. If there are no jobs available within the employer's agency, must the employer attempt to find another approximately equal remunerative job within the Florida Retirement System for such disabled employee? The Hearing Officer finds no such requirement.


  22. Chapter 110, State Career Service System, and Rule 22A, Florida Administrative Code, contemplate the problem of appointments, status, transfer, separations and lay-offs, but no evidence has been presented that the Department of Administration or its Division of Retirement has a system of protection for injured officers or employees other than disability payments for those who lose their jobs because of an in-line-of-duty injury or not-in-line-of-duty injury.


  23. Respondent, in denying benefits to Petitioner, cites Amico v. Division of Retirement, Inc., 352 So.2d 556, in which the court states, in revoking disability benefits: "The Commission could properly have concluded in this case that Amico, having been gainfully employed full time in various occupations during most of his retirement, was no longer totally and permanently disabled to perform some useful and efficient services for his former employer, the Metropolitan Dade County Police Department." That case is distinguishable because here the Respondent could not have concluded that Petitioner could or can do "useful and efficient service" for the Metropolitan Dade County Department of Public Safety. He does not have the physical ability or the job opportunity.


  24. In summary, under the Florida Retirement System the Legislature changed the disability provisions as found in the Teachers Retirement System, the Judicial Retirement System, and the State and County Officers and Employees Retirement System, wherein the officer or employee could receive disability benefits if his disability prevented him from doing his former job. Under the Florida Retirement System which is applicable to the Petitioner, an employee must be prevented from doing not only the former job but Prevented from rendering useful and efficient service as an officer or employee, regardless of where he might find covered work, with the education and physical qualifications he possessed when disabled. The Respondent has no choice but to pay disability benefits to the Petitioner if comparable covered employment is not available to him. He has presented evidence that he has tried without success to find employment commensurate with his physical and educational abilities.


  25. Government should and does encourage the disabled to find work. However, to interpret the disability retirement benefits statute to penalize an employee by refusing these earned disability benefits because he finds some type of employment, however ill-paid, is inconsistent with this philosophy and is inequitable. To be injured and then be relieved from your job is traumatic, but to know that your disability means a loss of your level of living, regardless of your efforts to remain employed, is not consistent with the term "disability benefits."


  26. The answer to the stipulated question of law: The Petitioner, Charles

    E. Kellum, is totally and permanently disabled, as the term is defined in Section 121.091(4).


  27. The answer to the stipulated issue of fact: Charles E. Kellum is prevented by reason of a medically determinable physical or mental impairment from rendering useful and efficient service as an officer or employee, because he does not have the opportunity to work within his former pay classification in a position covered by the Florida Retirement System.

RECOMMENDATION


Grant Petitioner Charles E. Kellum disability retirement benefits.


DONE and ORDERED this 24th day of May, 1979, in Tallahassee, Leon County, Florida.


DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675


COPIES FURNISHED:


Melvin R. Horne, Esquire Post Office Drawer 1140 Tallahassee, Florida 32302


Stephen S. Mathues, Esquire Division of Retirement

530 Carlton Building A Tallahassee, Florida 32301


================================================================= AGENCY FINAL ORDER

=================================================================


STATE OF FLORIDA DIVISION OF RETIREMENT


CHARLES E. KELLUM,


Petitioner,


vs. DOAH CASE NO. 77-465


DIVISION OF RETIREMENT,


Respondent.

/


FINAL ORDER


This cause was submitted by Respondent to the Division of Administrative Hearings for a recommendation pursuant to Section 120.57, Florida Statutes.

Certain stipulated facts, together with additional findings of fact made by the hearing officer are adopted by the agency as follows:


FINDINGS OF FACT


  1. Petitioner is a 42 year old male with a GED high school equivalency certificate. He served in the United States Air Force from 1954 to 1958. He was trained as a fire fighter and served in a fire-crash rescue unit.


  2. In October, 1959, Petitioner was employed as a motorcycle officer with the Dade County Sheriff's Department, now the Metropolitan Dade County Public Safety Department (DCPSD). He served in this capacity for 15 years and has no other occupational training or experience.


  3. From the date of his employment by the DCPSD, Petitioner participated in the State and County Officers' and Employees' Retirement System, Chapter 122, Florida Statutes. He subsequently transferred into the Florida Retirement System (FRS), Chapter 121, Florida Statutes.


  4. While employed by the DCPSD, Petitioner sustained the following work- related accidents and injuries:


    1. A motorcycle accident in 1964 resulting in abrasions and contusions;


    2. A motorcycle accident on February 16, 1965, resulting in a fractured radial

      head of the right elbow;


    3. A fall in March, 1970, resulting in a knee injury; and


    4. A fall in lay, 1974, resulting in a back injury and reinjury to the arm

      and knee.


      Petitioner's impairments are a result of these accidents and injuries.


  5. After Petitioner's May, 1974 fall, his employment was terminated by the DCPSD for "medical reasons". Desiring to return to employment in the field of law enforcement, Petitioner sought another position with the DCPSD, but was unsuccessful in securing a job.


  6. Petitioner applied for FRS disability retirement pursuant to 121.091(4) Florida Statutes. The DCPSD notified the Division of Retirement that the Petitioner was physically incapable of police work and no jobs existed within the Department suitable to Petitioner's abilities. The policy of the DCPSD was to phase out employees who were considered liabilities from an insurance risk management standpoint. There were no permanent sheltered positions in the Department for law enforcement personnel.


  7. Petitioner was notified by the Division of Retirement on April 10, 1975, that his application for FRS disability was denied because he was not totally and permanently disabled as provided by Section 121.091(4), Florida statutes. On April 10, 1975, Petitioner wrote the Division requesting disability benefits or an administrative hearing. The Division advised Petitioner on May 5, 1975, that did not qualify for total and permanent

    disability retirement and, if he desired a hearing, he should file a petition pursuant to Section 120.57, Florida Statutes, and the model rules of procedure, specifying the form of hearing he desired. Over a year later a petition for hearing was submitted. The petition was denied as untimely. A subsequent petition for hearing was filed with the newly created State Retirement Commission. The Commission ruled that it lacked jurisdiction because the denial of Petitioner's disability application was issued prior to the Commission's creation. However, the Division of Retirement subsequently accepted Petitioner's request for hearing and referred the matter to the Division of Administrative Hearings as indicated above.


  8. The medical evidence in this cause was submitted by Drs. Alex Toth, Robert G. Gilbert, G. Thomas Samartino and Robert E. Jacobson. Drs. Alex Toth and Robert Gilbert both evaluated Petitioner in 1974 at the request of his workmen's compensation attorney. (Exhibits 3 and 4) Both physicians indicated that Petitioner could not perform his "regular duties" requiring use of his right hand and elbow. They noted that Petitioner was right-handed and unable to grip a gun. Both felt Petitioner was "completely" or "totally" disabled and listed his prognosis as "guarded". (Exhibits 3 and 4) Dr. G. Thomas Samartino (an orthopedic surgeon) was the only physician who actually treated Petitioner. Dr. Samartino treated Petitioner for his right elbow and shoulder injuries from March 19, 1964 until June 21, 1974. He felt Petitioner should not be a police officer because of the limitations imposed by these injuries. (Exhibit 5 - page

    13) Dr. Samartino only assessed Petitioner's disability in terms of performing police work. (Exhibit 5 - page 24) The doctor felt Petitioner could work in a position that didn't cause any stress in the right upper extremity. (Exhibit 5

    - page 25) He felt Petitioner's condition would continue to degenerate. Petitioner's attorney initiated an evaluation by Dr. Robert E. Jacobson (a neurologist) on April 7, 1977. (Exhibit 1 - page 26) Dr. Jacobson felt the numerous impairments of which Petitioner complained would add up to a more marked problem than any single impairment would imply. He stated that from a functional standpoint, Petitioner could not return to work as a combat policeman, although he could function as a useful person outside of police work. (Exhibit 6 - page 22)


  9. Petitioner does not feel he can perform heavy lifting or strenuous work. (Exhibit 1 - page 17) Subsequent to his termination by the DCPSD he twice applied for jobs with private employers. Both employers advised him that they had nothing available at the time, but might have something later. (Exhibit 1 - page 15) Other than his attempt to secure another job with the DCPSD, Petitioner has made no effort to obtain employment in the public sector.

    Since applying for disability retirement, Petitioner established a lawn maintenance business with his son. His role in the business consists largely of driving a truck and soliciting business. He earns less in this endeavor than he did as a police officer.


  10. Petitioner is totally and permanently disabled from employment as a combat police officer. However, he can otherwise perform useful and efficient service.


    CONCLUSIONS OF LAW


  11. Section 121.091(4), Florida Statutes, provides that a member of FRS who becomes totally and permanently disabled in-line-of-duty shall be entitled to a monthly disability benefit. The section defines total and permanent disability as the inability, due to a medically determinable impairment, to

render useful and efficient service as an officer or employee. The First District Court of Appeal has expanded on this definition in the following cases:


In Shepard v. Division of Retirement, 361 So.2d 208 (Fla. App. 1st DCA 1978) the Court ruled that the mere inability to perform the duties of a combat police officer do not qualify a member of FRS for disability retirement benefits.


The Court stated:


An applicant for disability retirement benefits need not prove that

his medically determinable disability prevents him from undertaking the

most menial or insignificant job within the system far distant from his

home; but Shepard, having no medically determinable disability rendering him unfit for decent work available for

one of his qualifications at a reasonably convenient place, does not qualify

for these extraordinary benefits.


The Court would not attribute a purpose to the legislature that would enable an individual to retire on FRS disability while capable of some form of covered employment under the retirement system. Shepard, supra. Therefore, the Court obviously felt that employment under the retirement system for which one was qualified and physically capable could be considered "decent work".


In Amico v. Division of Retirement, 352 So.2d 556 (Fla. App. 1st DCA 1977) it was held that private employment may be sufficient to demonstrate an ability to render useful and efficient service as an employee within the public sector. The Court stated that the Retirement Commission was free to conclude that Amico, a policeman retired on disability, was capable of public employment because he had worked for private employers as a security manager, salesman, security supervisor and, most recently, as a bartender.


Based on the foregoing findings the hearing officer recommended the petitioner be approved for FPS disability retirement "because he does not have the opportunity to work within his former pay classification in a position covered by the Florida Retirement System". As a matter of law, this is not the test for determining disability under FRS. The proper test is whether an applicant demonstrates his unfitness for "decent work available for one of his qualifications at a reasonably convenient place".


The preponderance of the medical evidence demonstrates, and the hearing officer concluded, that Petitioner is capable of performing useful and efficient service in a position outside of combat law enforcement, and not involving strenuous physical activity. Petitioner's efforts to obtain other employment were meager. He asked the DCPSD to reemploy him, but they refused because he could not function as a combat policeman and was an insurance liability. The two private employers Petitioner contacted had no positions available at the time, but suggested that they might in the future. Petitioner ultimately decided to start his own lawn maintenance business. Although not as remunerative as Petitioner's position with the DCPSD, the fact that the business has been reasonably successful demonstrates talent that may well be utilized in

securing and performing "decent work" for a public employer in the Miami-Dade County area.


ORDER


IT IS HEREBY ORDERED that Petitioner's application for in-line-of-duty disability retirement benefits under the Florida Retirement System be denied.


ROBERT L. KENNEDY, JR.

State Retirement Director



Copies furnished to:


Melvin R. Horne, Esquire Post Office Drawer 1140 Tallahassee, Florida 32302


Stephen S. Mathues, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe

Suite 207C - Box 81 Tallahassee, Florida 32303


Docket for Case No: 77-000465
Issue Date Proceedings
Nov. 26, 1979 Final Order filed.
May 24, 1979 Recommended Order sent out. CASE CLOSED.

Orders for Case No: 77-000465
Issue Date Document Summary
Aug. 13, 1979 Agency Final Order
May 24, 1979 Recommended Order Petitioner is entitled to disability benefits.
Source:  Florida - Division of Administrative Hearings

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