STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL L. COYLE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3019

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 10, 1983, in Sarasota, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose when the Department of Health and Rehabilitative Services terminated the vocational rehabilitation benefits of Michael L. Coyle. Coyle initiated administrative review of the Department's action in a timely fashion, which ultimately resulted in this hearing.

APPEARANCES

For Petitioner: Kathleen M. Starke, Paralegall 1/

Gulf Coast Legal Services, Inc.

520 12th Street, West Bradenton, Florida 33505

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

Department of Health and Rehabilitative Services

8800 Cleveland Avenue, South Post Office Box 06085

Fort Myers, Florida 33906

ISSUE

The ultimate issue is whether Coyle is eligible for vocational rehabilitation benefits. The eligibility requirements for vocational rehabilitation benefits are set forth in both federal and state law. An individual is eligible when it is certified that:

1. A physical or mental disability is present;

   
   

2. A substantial handicap to employment exists; and

   
   

3. Vocational rehabilitation services may reasonably be expected to render an individual fit to engage in gainful employment.

   
   

   Based upon the evidence presented at the hearing, there is no viable dispute that Coyle would not benefit from the receipt of vocational

   rehabilitation services, or that a documented physical disability does not exist. The real factual issue presented is whether Coyle has a substantial handicap to his employment.

   
   

   Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders filed March 4 and March 15, 1983. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, Michael L. Coyle, applied for vocational rehabilitation services on May 28, 1982.

      
      

   2. Coyle is a 46-year-old white male who is divorced with custody of his seven-year-old daughter. Coyle worked for 14 years as a printer/compositor for the Sarasota Herald-Tribune. This job required that Coyle stand during his entire work day. Prior to working for the Sarasota Herald-Tribune, Coyle worked as an airline ticket clerk and supervised the loading of freight for an airline. These positions required that Coyle stand during much of his work day.

      
      

   3. When Coyle applied for vocational rehabilitation services, he was on medical leave from the Sarasota Herald-Tribune on advice of his personal physician. This medical leave was for the purpose of alleviating pain in Coyle's left knee. This pain had become incapacitating. When Coyle applied for vocational rehabilitation services, his medical leave was almost over, and the condition in his left knee had not improved.

      
      

   4. Coyle's employer, the Sarasota Herald-Tribune, had no positions available in which Coyle could work seated, and Coyle could not perform his duties as a printer/compositor while seated. Coyle was required to perform his duties while standing, and no opportunity existed for Coyle to be seated periodically during his work day.

      
      

   5. Coyle's application for vocational rehabilitation services was approved, and Coyle was certified as eligible on July 1, 1982. A rehabilitative plan was not prepared for Coyle by Coyle's counselor.

      
      

   6. Before a rehabilitative plan could becompleted, Coyle applied for additional benefits, to include transportation and maintenance costs. By this time, Coyle's medical studies were completed and their results available. The physicians reported that Coyle had a degenerative and chronic joint disease in his left knee; however, Coyle was able to work if he took aspirin and alleviated the strain on his knee by not standing. Based upon these reports, Coyle's request for maintenance and transportation costs were denied.

      
      

   7. Based upon the reevaluation of the medical opinions, the agency determined that Coyle was not eligible to receive any vocational rehabilitation benefits. Coyle was notified of the agency's decision to terminate his vocational rehabilitation benefits, and Coyle timely initiated administrative review of that determination.

      
      

   8. Coyle's records do not reflect that Coyle had applied for SSI and food stamps.

   9. Coyle receives some money as an insurance payment for his disability from private insurance maintained through his former employer.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Department of Health and Rehabilitative Services has authority to administer the Vocational Rehabilitation Program of the State of Florida and to make determinations of the eligibility of individuals for vocational rehabilitation services upon the application by such individuals for such benefits. The Division of Administrative Hearings has authority to enter this Recommended Order pursuant to Section 120.57, Florida Statutes.

       
       

   11. The Vocational Rehabilitation Program is governed by certain federal guidelines contained in Title 451 Section 1361.30 et seq., Code of Federal Regulations. Section 1361.33(b) of Title 45, Code of Federal Regulations, requires the following for basic eligibility:

       
       

       1. The presence of a physical or mental disability which for the individual constitutes or results in a substantial handicap to employment; and

       2. A reasonable expectation that

          vocational rehabilitation services may benefit the individual in terms of employability.

          
          

   12. These federal guidelines are implemented through Section 413.30(2), Florida Statutes, which provides as follows:

       
       

       1. Eligibility when used in relation to an individual's qualification for vocational rehabilitation services, refers to a certification that:

          1. A physical or mental disability is present;

          2. A substantial handicap to employment exists; and

          3. Vocational rehabilitation services may reasonably be expected to render the individual fit to engage in a gainful occupation.

1. The medical records clearly evidence a chronic degenerative joint disease in Coyle's left knee. All of the physicians who examined Coyle found this. Coyle's counselor, through vocational testing, found that Coyle could benefit from vocational rehabilitation services in terms of obtaining suitable employment within his capacity to perform. The only issue remaining is whether the handicap was a substantial handicap to Coyle's employment. The physicians offered an opinion on this; however, their opinion is not deemed an expert opinion, because this is not a medical determination. It was their opinion that Coyle was not substantially handicapped because he could continue to work if he stayed off his feet. The facts also show that Coyle's customary and normal employment did not permit Coyle to stay off his feet or take periodic breaks during the day. Therefore, the determination of whether Coyle is substantially handicapped must be judged in terms of whether he can do his job, and not whether Coyle can do some job in which he does not have to stand. Clearly, the physicians applied the latter test. The federal guidelines clearly indicate

   that we look at the disability in terms of the individual's employment and the effect of the disability upon that employment.

   
   

2. The federal guidelines also provide the evidentiary standard to be applied in making a determination of ineligibility. Section 1361.37(c) of Title 45, Code of Federal Regulations, provides the standard for determining ineligibility as beyond any reasonable doubt that an individual is ineligible. The Department has clearly not demonstrated that Coyle is ineligible for vocational rehabilitation services beyond any reasonable doubt.

   
   

3. With regard to Coyle's eligibility for maintenance, the criteria for eligibility are outlined in the agency's memorandum of January 28, 1982. This memorandum points out that an applicant must have requested supplemental Social Security and food stamps before maintenance will be negotiated. The record clearly reflects that Coyle had not applied for food stamps or supplemental Social Security. Therefore, Coyle is not eligible for maintenance.

   
   

4. The agency made much of the fact that the rehabilitative plan had not been completed by Coyle and his counselor. The fact that the plan was not completed is the responsibility of the counselor. A counselor has sufficient leverage to require the applicant to complete an application, which includes the rehabilitative plan. If the plan is not done, it should not work to the detriment of the applicant without a showing that tiie applicant failed or refused to cooperate in completing the plan. In this instance, there was no evidence that Coyle refused or failed to cooperate with the counselor in completing the plan. Therefore, it is determined that Coyle is eligible for the original benefits terminated by the Department, and said benefits should be reinstated retroactively to the date terminated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, Michael L. Coyle's basic vocational rehabilitation benefits should be reinstated retroactive to the date of original termination.

DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1983.

ENDNOTE

1/ A separate determination was made that Kathleen M. Starke was an otherwise qualified representative based on information provided by Starke to the Hearing Officer.

COPIES FURNISHED:

Kathleen M. Starke, Paralegal Gulf Coast Legal Services, Inc.

520 12th Street, West Bradenton, Florida 33505

Anthony N. DeLuccia, Jr., Esquire Department of Health and

Rehabilitative Services 8800 Cleveland Avenue, South Post Office Box 06085

Fort Myers, Florida 33906

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-003019

Orders for Case No: 82-003019