STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THELMA H. DAMPIER, )

)

Petitioner, )

)

v. ) CASE NO. 91-1489

)

DEPARTMENT OF ADMINISTRATION, )

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 15, 1991, in Gainesville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Thelma H. Dampier, Pro Se

Post Office Box 342 Melrose, Florida 32666

For Respondent: Stanley M. Danek, Division Attorney

Division of Retirement Cedars Executive Center

2639 North Monroe Street, Building C Tallahassee, Florida 32399

STATEMENT OF ISSUES

The issue is whether the Petitioner, Thelma H. Dampier, is entitled to consideration of her second application for disability retirement benefits based on the submission of new medical information.

PRELIMINARY STATEMENT

Ms. Dampier submitted her own testimony and had one Petitioner's Exhibit admitted in evidence. The Division of Retirement (the Division) submitted the deposition testimony of Mark Sadler, which was admitted as Respondent's Exhibit 1.

No transcript was filed. The parties had until May 28, 1991, to file proposed findings of fact and conclusions of law. Ms. Dampier waived the filing of a proposed recommended order. The Division timely filed its proposed recommended order. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Thelma H. Dampier was a member of the Florida Retirement System (FRS), Chapter 121, Florida Statutes, and had more than ten years of creditable service. She terminated her employment in August, 1988.

   
   

2. In October, 1988, Ms. Dampier applied for in-line-of-duty disability retirement under FRS. By its final action letter received by Ms. Dampier on July 27, 1989, the Division denied her application for disability benefits.

   
   

3. Under the applicable procedural rules, Ms. Dampier had 21 days to file a petition for an administrative hearing before the State Retirement Commission. She failed to request a hearing on the denial of benefits and her right to a hearing ceased.

   
   

4. On September 8, 1990, Ms. Dampier filed a second application for in- line-of-duty disability retirement benefits. The application included medical records from Doctors Evans, Andrews, Barrow, and Chance. The medical records of Doctors Evans and Andrews had been submitted with and considered in connection to the first application. The medical records of Doctors Chance and Barrow were submitted for the first time with the second application.

   
   

5. The report of Dr. Barrow opines that Ms. Dampier is permanently and totally disabled, but it does not reflect her condition at the time she terminated employment or any connection between her condition and her employment.

   
   

6. The report of Dr. Chance, a chiropractic physician, relates to neck, shoulder and lower back pain. The report does not state that Ms. Dampier is totally and permanently disabled. Instead, it states that Ms. Dampier suffers only mild degenerative changes. It also does not relate that opinion to the date on which her employment terminated.

   
   

7. The Division has a policy set forth in a Memorandum for Record dated July 17, 1990, regarding handling of reapplications for disability benefits.

   The policy specifies that reapplications will be considered "only when the member presents information of the existence of a medical condition that existed prior to termination of employment--unknown at the time of the initial application." This policy is reasonable and consistent with the Chapter 121.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

9. The Division was correct in its refusal to consider the second application for disability retirement benefits. Section 121.091(4)(f), Florida Statutes, states:

   
   

   (f) Nonadmissible causes of disability.--A member shall not be entitled to receive any disability retirement benefits if his disability is a result of any of the following:

   * * *

   2. Injury or disease sustained by the member after his employment has terminated

   . . . .

   
   

10. The Division's policy requiring a reapplication for disability retirement benefits to present information of the existence of a medical condition that existed prior to termination of employment is consistent with this statutory restriction. The new report of Dr. Barrow does not relate Ms. Dampier's disabling cardiac condition to her employment, which terminated in August, 1988. Dr. Chance presents no statement of disability or of a relationship between disability and the time when her employment terminated. Therefore, it can only be concluded that the second application does not contain new medical information of the type required by the Division's policy.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Division of Retirement enter a Final Order denying

consideration of Thelma H. Dampier's second application for in-line-of-duty disability benefits.

DONE and ENTERED this 11th day of June, 1991, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division ofAdministrative Hearings this 11th day of June, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Retirement

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4).

2. Proposed findings of fact 5 and 6 are subordinate to the facts actually found in this Recommended Order.

3. Proposed finding of fact 7 is repetitive and unnecessary.

COPIES FURNISHED:

Thelma H. Dampier Post Office Box 342 Melrose, FL 32666

Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C

Tallahassee, FL 32399

A. J. McMullian III, Director Division of Retirement Cedars Executive Center

2639 North Monroe Street Building C

Tallahassee, FL 32399

John A. Pieno, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-001489

Orders for Case No: 91-001489