STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WARREN BERGMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2212

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 29, 1981, in Sarasota, Florida. The hearing officially closed, by stipulation of the parties, on November, 10, 1981.

APPEARANCES

For Petitioner: Michael K. Stuckey, Esquire

Gulfcoast Legal Services, Inc.

337 South Pineapple Avenue Sarasota, Florida 33577

For Respondent: Anthony N. DeLuccie, Jr., Esquire

Post Office Box 06085 Department of HRS

Fort Myers, Florida 33906

ISSUES

Whether or not the Department of Health and Rehabilitative Services' reduction of Petitioner's vocational rehabilitative benefits is warranted.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.

   
   

2. Petitioner, Warren A. Bergman, is a fifty-two (52) year old male who has been receiving financial assistance and benefits from Respondent since early 1980, to become educated at the local vocational technical school and Manatee Junior College, such that he can become employed as an electronic technician. Petitioner has received maintenance benefits from Respondent in excess of

   $500.00 per month (average) since he has participated in the vocational rehabilitation program sponsored by Respondent. Petitioner has received approximately $7,283.00 in benefits from Respondent.

3. Petitioner suffers from a chronic diabetic condition which prevents him from standing for prolonged periods of time; be is capable of only limited weight-bearing and he cannot lift or carry heavy objects. Petitioner remains under the care of Dr. Burwell Jones for chronic ulcerations of his ankles and legs. (Joint Exhibit No. 1)

   
   

4. Petitioner's rehabilitative program has been reviewed by the Respondent semiannually. During the most recent review in July, 1981, it was determined by Petitioner's vocational rehabilitation specialist that be (Petitioner) was no longer eligible for benefits under Respondent's rehabilitation services program at the existing levels in view of the high cost involved in maintaining those benefits; Petitioner's chronic condition which prevented ambulation and the considered opinion of Respondent's medical experts that there was little likelihood that Petitioner's condition would improve to the point that would enable him to return to gainful employment. 1/ (Testimony of Mrs. Sydney Tatem, Respondent's Program Supervisor and a former vocational rehabilitation specialist in charge of reviewing Petitioner's benefits program.)

   
   

5. During the school term ending May, 1981, Petitioner enrolled in a technical math course, a fundamental electronics course and a basic electronics circuitry course. Petitioner withdrew from the technical math course and audited the basic electronics circuitry course. Petitioner received a final grade of "C" in the fundamental electronics course. Petitioner had received benefits from Respondent to maintain a full course of study at Manatee Junior College.

   
   

6. Prior to Respondent's decision to reduce the level of funding for Petitioner's benefits under the vocational rehabilitation program, Mrs. Tatem directed Petitioner to obtain a thorough work evaluation program with a neighborhood liaison agency (Goodwill Industries) such that the vocational rehabilitation services program could develop a meaningful rehabilitation service program. Petitioner refused to participate and Respondent was unable to develop a work evaluation program by utilizing the resources of Goodwill. Petitioner felt that his participation in the development of such a program was "not in his best interests" in that he considered such a program would not head him in the direction that he desired. (Testimony of Petitioner)

   
   

7. Upon Petitioner's entry in the vocational rehabilitation services program during April of 1980, Petitioner agreed to offer his help and assistance in the development of a program to determine his eligibility for rehabilitation services under the Respondent's program. In that agreement of understanding, Petitioner acknowledged that his program would change as circumstances changed and that his program could be ended if it . was found that it was not likely that he would be able to work. (See Joint Exhibit No. 5) Following Petitioner's refusal to assist in the development of a work evaluation program in order for Respondent to reassess his vocational capabilities, Respondent determined that it would be unable to provide further medical services, medicines or supplies to Petitioner in view of the severity of Petitioner's impairment and the general aptitude test battery scores. Based on the fact that Petitioner was eligible for Medicaid, SSI benefits and food stamps, Respondent also determined that it would no longer provide Petitioner with further living expenses. Respondent, however, agreed to provide Petitioner with transportation expenses in the amount of twenty cents ($.20) per mile for the actual number of round trips per week between his home and Manatee Junior College.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Respondent is derived from Chapter 413, Florida Statutes and Rule Chapter 10G-1, Florida Administrative Code.

    
    

11. Competent and substantial evidence was offered to establish that there was little likelihood of a reasonable expectation of rehabilitation by Petitioner such that he would be able to return to gainful-employment. As such, in view of Petitioner's severe physical impairment; his prognosis for recovery and his failure to assist Respondent in the development of an overall work evaluation program as directed by his program specialist, Respondent properly determined that it would no longer provide services to Petitioner at the level at which it was then providing benefits in order to assist in qualifying him to enter the electronics profession or to return to gainful employment in the electronics industry. Accordingly, it is concluded that Respondent properly reduced the level of vocational rehabilitation benefits provided to Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Respondent's actions in reducing the level of vocational rehabilitation services and benefits to Petitioner be UPHELD.

RECOMMENDED this 16th day of December, 1981, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1981.

ENDNOTE

1/ Petitioner, among other things, formerly operated service stations, horse stables, manufactured and sold trailers and recreational vehicles.

COPIES FURNISHED:

Michael K. Stuckey, Esquire Gulfcoast Legal Services, Inc.

337 South Pineapple Avenue Sarasota, Florida 33577

Anthony N. DeLuccia, Jr., Esquire Post Office Box 06085

Department of HRS

Fort Myers, Florida 33906

Docket for Case No: 81-002212

Orders for Case No: 81-002212