Judges: K. N. AYERS
Agency: Department of Management Services
Latest Update: Jan. 25, 1983
Summary: Petitioner, who injured back and refused to return to light duty thereafter, considered to have abandoned his career service position.
82-1877STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIE HILLS, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1877
) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE ) SERVICES, and DEPARTMENT OF ) ADMINISTRATION, )
)
Respondent. )
)
RECOMMENDED ORDER
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 case on 24 November 1982 at Orlando, Florida.
APPEARANCES
For Petitioner: J. David Parrish, Esquire
1000 East Robinson Avenue Orlando, Florida 32801
For Respondent: Gerry L. Clark, Esquire
Department of Health and Rehabilitative Services
400 West Robinson Street, Suite 911 Orlando, Florida 32801
By letter dated June 23, 1982, Willie Hills, Petitioner, by and through his attorney, requested a hearing to contest the finding by the Department of Health and Rehabilitative Services (DHRS or Respondent) that Petitioner had abandoned his position as a Career Service employee at Sunland Center, Orlando, Florida.
At the commencement of the hearing Respondent advised that its principal witness was ill and could not attend the hearing. It was agreed by all parties that the hearing proceed and the testimony of Respondent's principal witness be taken by deposition after she returned and be submitted within thirty days as a late-filed exhibit. This deposition was not received by the Division of Administrative Hearings until 13 January 1983. Ten exhibits accompanied this deposition. At the hearing Petitioner testified and five exhibits were admitted into evidence. The evidence is generally undisputed.
FINDINGS OF FACT
Willie Lee Hills was first employed at Sunland Center, Orlando, Florida, in 1976 as a CETA employee. He became an employee in a regularly established position in 1977 as Groundskeeper I.
Petitioner first suffered an injury to his back in 1977 in a job- related accident. In addition, he subsequently reinjured his back in 1977 and 1980, and suffered a hernia. In 1981, following another back injury, surgery was performed on Petitioner to remove a disc in his vertebrae. Following this surgery he was returned to limited/light duty on January 25, 1982, in which his lifting was limited to twenty pounds. He was unable to perform the duties assigned.
By letter dated March 8, 1982 (Exhibit 4), Petitioner was directed to return to work on March 11, 1982, or provide medical certification that he was unable to work. Petitioner reported for work on March 11, as directed. He was assigned light duty in the laundry. He worked until March 17, after which he took sick leave on March 18 due to taking an awkward step and twisting his back. Petitioner did not return to work after March 18, 1982.
By letter dated May 7, 1982 (Exhibit 5) , Petitioner was directed to return to work performing light duty as a Refuse Station Attendant handling bags weighing no more than nine pounds each on May 14, 1982, and if unable to work provide a medical certificate of his illness. Petitioner did not report to work or provide a medical certification of his illness. He did call the Sunland Personnel Office and was directed to return to Dr. William Cox for treatment. Dr. Cox refused to reaccept Petitioner as a patient, but Petitioner neither advised Respondent of this fact nor submitted certification of illness from another doctor.
By letter dated June 2, 1982 (Exhibit 6) , Petitioner was advised that because he had failed to return to work or submit medical certification of his inability to work it was assumed he had abandoned his position and was separated from Career Service employment. This appeal followed.
Petitioner was pursuing worker's compensation claims for the work- related injury during the time here relevant. At the hearing he professed an inability to bend, lift more than ten pounds, climb stairs, sit or stand for periods greater than one hour, and generally presented the appearance of one who is physically incapable of performing the duties of a Groundskeeper I.
Medical evaluations dated 8-31-82 (Exhibit 4) and 10-14-82 (Exhibit 3) agree that Petitioner has a fifteen percent (15 percent) permanent impairment of his body as a whole and that he has reached a plateau of progress beyond which he is not likely to go. Neither of these evaluations found Petitioner unable to perform light duties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Rules pertaining to Career Service personnel are contained in Chapter 22A-8, Florida Administrative Code.
Rule 22A-8.02(5)(a), Florida Administrative Code, provides that any leave of absence with or without pay shall be approved prior to time leave is taken except in an emergency.
When prior approval cannot be obtained by an employee due to such emergencies, the
agency head shall take one of the following actions:
3. If the absence is for 3 consecutive workdays, consider the employee to have abandoned the position and resigned from the Career Service.
Rule 22A-8.11(2)(d), Florida Administrative Code, provides in part:
After 3 workdays absence in any day calendar period, the agency head may require a medical certification of the employee's illness before authorizing any additional use of sick leave credits by the employee.
After 10 consecutive days of absence, the employee shall submit to the agency head a medical certification from the attending physician before any additional use of sick leave credits can be authorized for the employee.
5. An employee who, upon request by the agency head, refuses to comply with these rules shall not be eligible to use accrued sick leave credits, and any absence from work shall be handled in accordance with Section 22A-8.02(5).
Rule 22A-8.12(2), Florida Administrative Code, relating to disability leave provides in pertinent part:
Compulsory disability leave
Any agency head who believes that an employee is unable to perform assigned duties due to illness or injury may require the employee to submit to a medical examination by a physician named and paid by the agency. If the medical examination confirms that the employee is unable to perform assigned duties, the agency head shall place the employee on compulsory disability leave.
(d) If the employee is unable to return to work at the end of the mandatory leave period, based on a current medical certification, the agency head may:
(4) Dismiss the employee for cause based on inability to perform assigned duties.
No evidence was submitted from which a determination can be made that Petitioner was either better or worse off when he was directed to return to work in May (Exhibit 5) than when he was evaluated by physicians in August (Exhibit
2) and October (Exhibit 3). It is clear that when he was evaluated in August and October he was certified to be medically capable of performing duties similar to those planned for him if he returned to work in May.
When Petitioner remained absent from work after March 18, 1982, without providing the medical certification required, he was absent for a much
longer period than three consecutive days, and the agency head properly considered Petitioner to have abandoned his position.
Although the medical evaluations indicate Petitioner is capable of performing light duties where he has the ability to move around occasionally, it is apparent from Petitioner's testimony and appearance at the hearing that he will not satisfactorily perform these duties if he returned to work, and Respondent will be faced with removing Petitioner from the Career Service rolls in accordance with Section 22A-8.12, Florida Administrative Code, above quoted.
From the foregoing it is concluded that when Petitioner failed to return to work May 14, 1982, when so directed or submit a medical certification of his physical inability to do so, he abandoned his position within the Career Service. It is
RECOMMENDED that the appeal of Willie Lee Hills of his removal from the Career Service System be DENIED.
ENTERED this 25th day of January, 1983, at Tallahassee, Florida.
K. N. AYERS 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 25th day of January, 1983.
COPIES FURNISHED:
J. David Parrish, Esquire 1000 East Robinson Avenue Orlando, Florida 32801
Gerry L. Clark, Esquire Department of Health and
Rehabilitative Services
400 West Robinson Street, Suite 911 Orlando, Florida 32801
David H. Pingree, Secretary Department of Health and
Rehabilitative Services 1321 Winewood Boulevard
Tallahassee, Florida 32301
Nevin G. Smith, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32301
Docket for Case No: 82-001877
Orders for Case No: 82-001877
| Issue Date |
Document |
Summary |
|
Jan. 25, 1983 |
Recommended Order
|
Petitioner, who injured back and refused to return to light duty thereafter, considered to have abandoned his career service position.
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