STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERMAN LEWIS VANN, )

)

Petitioner, )

vs. ) CASE NO. 88-5538

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, in Miami, Florida, on March 28, 1989. Both parties have filed proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Herman Lewis Vann

671 Northwest 179 Street

Miami, Florida 33169

For Respondent: Carmen Dominguez Frick, Esquire

401 Northwest Second Avenue Suite S424

Miami, Florida 33128 STATEMENT OF THE ISSUES

The issue is whether Petitioner abandoned his job having been absent from work for three (3) consecutive work days without authorization, pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code.

PROCEDURAL MATTERS

At the hearing, two witnesses testified on behalf of the Department of Health and Rehabilitative Services, and the depositions of three medical doctors, Drs. Pedro Bermann, John Diggs and Serge Podrizki, were admitted into evidence without objection. The Department offered exhibits 1-9, which were also received without objection.

Mr. Vann testified in his own behalf.

The Department of Health and Rehabilitative Services (Department) initiated this proceeding on September 27, 1988, when it advised Mr. Vann that the Department had accepted his resignation, as a matter of law, because he had been absent without authorized leave from his job since June 8, 1988. Mr. Vann requested a formal hearing on October 12, 1988 to contest the agency's decision.

FINDINGS OF FACT

1. Mr. Vann was employed by the Department as a counselor for its Division of Children Youth and Family.

   
   

2. On August 8, 1987, Mr. Vann was involved in an accident in which a truck hit the car he was driving. He had an acute cervical and lumbar sprain of the back and contusions of the right arm and right foot; he had no fractures or dislocations. He received workers' compensation benefits as the result of his injuries. He was treated by an orthopedic surgeon, Dr. Pedro Bermann. By January 21, 1988, Dr. Bermann was of the opinion that Mr. Vann had reached maximum medical improvement.

   
   

3. On March 27, 1988, Mr. Vann was admitted to the University of Miami Comprehensive Pain and Rehabilitation Center at South Shore Hospital and Medical Center for an intensive treatment program. For two weeks he was treated as an in-patient, for the following two weeks he was treated on an out-patient basis.

   
   

4. When Mr. Vann was discharged from the Pain and Rehabilitation Center he had a zero percent impairment rating. When released from that program, Dr. Serge Podrizki wrote a letter stating that Mr. Vann had "successfully completed treatment at our center for a work-related injury and was able to resume full- time employment. He is being discharged with no restrictions according to the guidelines of his job requirements. We would suggest that his driving be limited for at least the first month." Mr. Vann then returned to his work as a counselor for Children Youth and Family on April 25, 1988.

   
   

5. Mr. Vann's supervisor wrote a memo to him on May 20, 1988, which reassigned cases to him based on Dr. Podrizki's April 23, 1988 letter. He was not required to drive, which was consistent with Dr. Podrizki's recommendation. Problems with Mr. Vann's job performance resulted in a memo from his supervisor dated May 13, 1988, requiring him to sign in and out each day, to inform his supervisor of doctor's appointments and to provide copies of any doctor's reports to his supervisor.

   
   

6. On June 8, 1988, Mr. Vann reported to work but he did not report to work at any time thereafter. Mr. Vann never was authorized to take leave and never provided any doctor's statements justifying his absence from work on the grounds that he was unable to work.

   
   

7. Mr. Vann maintains that he was unable to work due to his injuries. The depositions of three doctors who treated Mr. Vann are the only medical evidence in the record. In their opinion, Mr. Vann is able to work. The greater weight of the evidence shows that there is no medical reason why Mr. Vann could not perform the duties of his job as a counselor in June 1988.

   
   

8. On June 16, 1988, Vann received a letter advising him that he was not authorized to be absent from work and directing him to report for work. Mr. Vann did not respond to this letter. On September 27, 1988, another letter was sent to Mr. Vann advising him that because he had failed to contact the Department since June 9, 1988, or to report for work since that time, his resignation from the career service had been accepted under Rule 22A- 7.010(2)(a), Florida Administrative Code.

   
   

9. Mr. Vann was absent from work without authorized leave for more than three consecutive work days beginning June 8, 1988.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1987).

    
    

11. The Department bears the burden to prove that Mr. Vann abandoned his position with the career service.

    
    

12. Under Rule 22A-7.010(2)(a), Florida Administrative Code:

    
    

    An employee who is absent without authorized leave of absence for three (3) consecutive work days shall be deemed to have abandoned the position and to have resigned from the Career Service...

    
    

13. The rule creates the presumption that an employee who has been absent from work for three days has given up his job. The rule is intended to strike a balance between the State's need to replace absent employees and the employee's interest in job security and retention. See Handley v. Department of Administration, 411 So.2d 184 (Fla. 1982).

    
    

14. An employee deemed to have abandoned a position is entitled to a "review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position." Rule 22A-7.010(2)(a), Florida Administrative Code. The facts proven here show that Mr. Vann failed to return to work from June 8, 1988 to the time the dismissal letter was mailed to him on September 27, 1988. Mr. Vann's subjective statements that he had been in pain and not able to perform the duties of his job is not supported by the medical evidence presented at the final hearing. By failing to return to work, Mr. Vann is deemed to have abandoned his position and resigned from the career service.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that a final order be entered by the Secretary of the Department of Administration finding that Mr. Vann abandoned his career service position.

DONE and ENTERED this 28th day of April, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1989.

APPENDIX

The following are the rulings on proposed findings required by Section 120.59(2), Florida Statutes.

Petitioner's Proposed Findings

1. Adopted in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 3.

4. Covered in finding of fact 4.

5. Covered in finding of fact 4.

6. Rejected as unnecessary.

7. Covered in finding of fact 5.

8. Covered in finding of fact 6.

9. Covered in finding of fact 6.

10. Covered in finding of fact 8.

11. Covered in finding of fact 8.

12. Covered in finding of fact 8.

13. Rejected as unnecessary.

14. Adopted in finding of fact 9.

Respondent's Proposed Findings

Respondent submitted a letter rather than findings of fact. The contention that this proceeding is an attempt to avoid the Department's duties under the workers compensation laws is rejected as unsupported in the record. The medical evidence Respondent refers to in his letter was not submitted at the hearing; the evidence submitted by the Department was persuasive.

COPIES FURNISHED:

Carmen Dominguez Frick, Esquire Department of Health and

Rehabilitative Services

401 Northwest Second Avenue Suite 5424

Miami, Florida 33128

Herman Lewis Vann

671 Northwest 179 Street

Miami, Florida 33169

Larry D. Scott, Esquire Department of Administration Office of the General Counsel

435 Carlton Building Tallahassee, Florida 32399-1550

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

R.S. Power, Esquire Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Docket for Case No: 88-005538

Orders for Case No: 88-005538