STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANNA PREISSIG, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1871

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Fort Myers, Florida, on September 27, 1984, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Ms. Janna Preissig, pro se

3111 Cleveland Avenue, Lot 6 Ft. Myers, Florida 33901

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

District 8 Legal Counsel 8800 Cleveland Avenue, South Ft. Myers, Florida 33907

At the hearing Ms. Preissig testified on her own behalf and offered one exhibit, which was received in evidence. She did not call any other witnesses. The Department of Health and Rehabilitative Services offered eight exhibits, all of which were received in evidence, and also called the following witnesses:

Mr. Gail Beehler, Mr. John Sendlosky, and Dr. Richard Keown.

Following the hearing both parties waived the filing of post-hearing submissions to the Hearing Officer. Nevertheless, Ms. Preissig sent two post- hearing written statements to the Hearing Officer, both of which have been carefully considered in the preparation of this Recommended Order.

ISSUES

The ultimate issue in this case is whether Janna Preissig is eligible for vocational rehabilitation benefits for which she has applied on three separate occasions. 1/ Ms. Preissig contends that she is eligible. The Department of Health and Rehabilitative Services (hereinafter "the Department" or "DHRS") contends that Ms. Preissig is ineligible on the grounds that vocational rehabilitation services may not reasonably be expected to render Ms. Preissig fit to engage in a gainful occupation.

FINDINGS OF FACT

Based on the stipulations of the parties, the exhibits admitted into evidence, and the testimony of the witnesses at hearing, I make the following finds of fact:

1. The Petitioner, Ms. Janna Preissig, most recently applied for vocational rehabilitation services on January 17, 1984. Ms. Preissig applied for such benefits twice before, once in 1982 and once in 1983. Both of her prior applications were denied.

   
   

2. Ms. Preissig is a 32-year-old, single, white, female with a long history of unsuccessful efforts at employment corresponding to a long history of mental problems. Her only period of regular employment was a three and one-half year period during which she was in the U.S. Army working as a supply clerk.

   She has obtained numerous other jobs from time to time, but is always fired after a short period of time due to her mental condition.

   
   

3. Since childhood Ms. Preissig has suffered from severe mental problems. As early as age thirteen she was hospitalized for psychiatric problems for approximately one year. During the hospitalization she was subjected to at least 20 electrical shock treatments. She believes that some of her current problems are the result of the electrical shock treatments. Ms. Preissig has a long history of both inpatient and outpatient treatment for psychiatric disorders since her initial hospitalization at age thirteen.

   
   

4. In addition to her difficulties in retaining employment, Ms. Preissig also has difficulties with social adjustment. She has a long history of vagrancy.

   
   

5. Ms. Preissig has a long history of being uncooperative with treatment plans. She has been discharged from inpatient treatment because of disruptive conduct which interfered with the treatment of other patients. She has been suspended from outpatient treatment programs for breaking rules. She has a poor attendance record at outpatient treatment programs. She also has a negative attitude towards the treatment programs she has been exposed to and does not believe she is likely to receive any benefit from the treatment programs which have been recommended for her.

   
   

6. Due to the nature of Ms. Preissig's mental condition and her uncooperative attitude towards the treatment which has been recommended for her and made available to her, the prognosis for significant improvement in her present condition is poor. Her present condition was summarized as follows by Dr. Michael C. Berg:

   
   

   She is at present, and previously, quite unable to hold gainful employment because of the presence of severe mental impairment, paranoia, which is long-standing and with a poor prognosis. Not only is she unemployable, but she lacks the basic living and social skills necessary for an independent life without some supervision, structure, and assistance with accommodation. This condition will not, in my opinion, significantly improve over the next 12 months.

7. As a result of Ms. Preissig's current mental condition, which is not expected to improve over the next twelve months (and which may last much longer if she fails to cooperate with the treatment program), she is not fit to engage in a gainful occupation. Further, because of Ms. Preissig's current mental condition, vocational rehabilitation services would not render her fit to engage in a gainful occupation. The sine qua non to her ability to engage in a gainful occupation is some significant improvement in her current mental condition.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing, I make the following conclusions of law:

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

   
   

9. The Department of Health and Rehabilitative Services has authority to administer the Vocational Rehabilitation Program of the State of Florida and to make determinations regarding the eligibility of those who apply for vocational rehabilitation services. The Vocational Rehabilitation Program is governed by federal guidelines contained in Title 45, 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.

      
      

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

    
    

    (2) 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.

    
    

11. The federal guidelines also provide the evidentiary standard to be applied in making a determination of ineligibility. The standard set forth at Section 1361.37(c) of Title 45, Code of Federal Regulations, is that a determination that an individual is ineligible must be established beyond any reasonable doubt.

    
    

12. The evidence in this case establishes beyond any reasonable doubt that Ms. Preissig presently has a mental disability, that such disability constitutes a substantial handicap to employment, and that such substantial handicap to employment will continue to exist until such time as there is some significant improvement in Ms. Preissig's mental disability.

13. The evidence also establishes beyond any reasonable doubt that vocational rehabilitation services would not render Ms. Preissig fit to engage in a gainful occupation, because her present mental condition makes it impossible for her to hold any type of gainful occupation. Unless and until there is some significant improvement in her mental condition there is no reason to expect that Ms. Preissig would be fit to engage in a gainful occupation with or without vocational rehabilitation services, because her present mental condition is an impediment to any type of gainful employment. It having been established that vocational rehabilitation services would not render her fit to engage in a gainful occupation, Ms. Preissig is, therefore, ineligible for vocational rehabilitation services.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that the Department of Health and Rehabilitative Services issue a Final Order denying Ms. Janna Preissig's application for vocational rehabilitation services.

DONE and ORDERED this 18th day of October, 1984, at Tallahassee, Florida.

MICHAEL M. PARRISH

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 18th day of October, 1984.

ENDNOTES

1/ This proceeding concerns only her most recent application.

COPIES FURNISHED:

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Ms. Janna Preissig

3111 Cleveland Ave., Lot 6 Ft. Myers, Florida 33901

Anthony N. DeLuccia, Jr., Esquire District 8 Legal Counsel

8800 Cleveland Avenue, South Ft. Myers, Florida 33907

Docket for Case No: 84-001871

Orders for Case No: 84-001871