STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNE B. CLEMMONS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2479

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for consideration and entry of a Recommended Order upon stipulation of the parties that certain exhibits be deemed admitted and waiver of the right to present any oral testimony.

APPEARANCES

FOR PETITIONER: David M. Robbins, Esquire

1125 Blackstone Building

Jacksonville, Florida 32202

FOR RESPONDENT: Stanley M. Danek, Esquire

Division of Retirement Cedars Executive Center 2639 N. Monroe St. Bldg. C Tallahassee, FL. 32399-1560

STATEMENT OF THE ISSUE

Whether or not Hewey Clemmons, the spouse of Petitioner, Anne Clemmons, died "in-line-of-duty" as defined in Section 121.021(14), F.S., so as to qualify Petitioner for the death benefits provided in Section 121.091(7), F.S.

PRELIMINARY STATEMENT AND DENIAL OF RENEWED MOTION TO DISMISS

The Petitioner alleged that her husband died as the result of emotional trauma that triggered sudden death syndrome directly related to his employment as a correctional officer. Respondent's position was that Mr. Clemmons died as a result of pre-existing underlying coronary artery disease unrelated to his employment and that the incident which triggered Mr. Clemmons' emotional trauma, if any, was de minimus as causation of death.

Subject to Respondent's motion to strike, which is discussed infra., the parties stipulated to the admission in evidence of the depositions of the following persons, together with the exhibits attached to those depositions: Robert E. Adams, J. W. Hollon, William D. Branaman, John Corbin, Paul Lockett, Stanley Colvin, and Lawrence Kanter, M.D. Both parties waived the opportunity

to present oral testimony or offer further exhibits and requested that the case be determined upon the foregoing exhibits.

Each party timely filed proposed recommended orders, the findings of fact of which are ruled upon in the appendix hereto, pursuant to Section 120.59(2), F.S.

Respondent had previously filed a Motion to Strike Portions of Testimony and Petitioner's Exhibit 1 to the Deposition of Ms. Stanley Colvin. That motion was denied by a May 14, 1992 order entered prior to the parties' final stipulation and submission of evidence and proposed recommended orders.

Respondent has renewed that motion within its proposed recommended order. The renewed motion is here denied upon the same grounds set forth in the May 14, 1992 order and also upon authority of Subsection 121.021(14), F.S. which specifically permits the Respondent agency, and inferentially the undersigned fact finder, to consider workers' compensation records in determining entitlement to the relief sought herein. Further authority for denial of Petitioner's motion is Chapter 119 and Sections 90.202 and 90.803 (6), (8), and (18), F.S. and Rule 22I-6.020, F.A.C.. That is not to say that this type of evidence is res judicata or otherwise controlling in the present proceeding.

See, "Conclusions of Law," infra.

FINDINGS OF FACT

1. At all times material, Hewey Clemmons and Petitioner Anne Clemmons were man and wife.

   
   

2. At all times material, Hewey Clemmons was employed as a correctional officer at Calhoun Correctional Institution on a regular duty shift.

   
   

3. September 30, 1990 was a very hot day, with the personnel in the yard perspiring.

   
   

4. That day, immediately preceding lunch, Inmate Warren Miller ran down the sidewalk toward the chow hall. Running is a violation of behavior for inmates at Calhoun Correctional Institution.

   
   

5. Officer Clemmons stopped Inmate Miller. At that time, Inmate Miller raised his hands up and down, arguing with Officer Clemmons. This incident was passed over for resolution until after the meal and subsequent head count.

   
   

6. Inmate Miller was a renowned and repetitive discipline problem, had a long disciplinary record, and was known as a "bad inmate." Although his usual behavior was more in the nature of disrespect and sarcasm rather than verbal threats, other correctional officers had had to use force on Miller several times prior to September 30, 1990. He was viewed by some of them as perennially hostile, argumentative, and possessed of an "attitude." At least one correctional officer at Calhoun Correctional Institution had felt compelled to administer mace to Miller on a prior occasion due to his behavior.

   
   

7. After lunch and head count on September 30, 1990, at approximately 11:55 a.m. CST, Officer Clemmons proceeded to the dormitory to retrieve Miller in connection with the morning's running incident. He guided Miller into the laundry room and instructed him to turn around so that Clemmons could handcuff him. All correctional officers deposed that handcuffing under the foregoing circumstances was prudent and standard operating procedure and that Officer Clemmons was a "by the book" officer.

8. Inmate Miller began arguing with Officer Clemmons and pushed, slapped, or otherwise struck Officer Clemmons' hand so as to break Clemmons' grip on Miller while Clemmons was attempting to handcuff him. Miller continued to refuse to be handcuffed by Clemmons, and an oral argument ensued in which Clemmons and Miller were loud and angry.

   
   

9. Officer Lockett observed the foregoing altercation and intervened to settle things down. He talked Miller into allowing Clemmons to handcuff him and lead him away. He observed that Clemmons was angry and upset by the incident. Later, Miller was presented by Clemmons at the Lieutenant's office and officers there observed Clemmons to be angry and upset. Officer Branaman testified that in the entire time he had worked with Clemmons, he had never witnessed Clemmons as upset as he was at the time he observed him that day. Miller was escorted to the infirmary for pre-confinement medical screening. Sometime thereafter Officer Branaman observed Clemmons walking moodily outside in the yard near the internal gate.

   
   

10. After a brief radio conversation with a superior officer, Adams, Officer Clemmons entered the internal gate in the yard and, after only a few steps, collapsed on the sidewalk. Correctional facility personnel responded with due haste, and despite valiant efforts by internal health care professionals and the Liberty County EMT team that eventually responded, Clemmons never revived. He was pronounced dead at the Calhoun County Hospital. Neither party's proposals has alluded to the fact that the materials submitted include two death certificates with different times of death and that the times related in many reports vary considerably, but having eliminated uncorroborated hearsay, having accounted for the Liberty County ambulance service personnel operating on eastern time and the correctional facility and hospital operating on central time, and having reconciled all the deposition testimony as much as possible without imputing falsehood to any witness, it is found that Officer Clemmons died at the scene at approximately 12:35 p.m. CST.

    
    

11. Officer Clemmons' widow was denied death in-line-of-duty benefits on the basis of Officer Clemmons' pre-employment physical and the death certificate to the exclusion of all other matters, including a letter of voluntary acceptance of responsibility for the payment of death benefits sent by the state's workers' compensation administrator, the Florida Department of Insurance, Division of Risk Management (P-1 to Stanley Colvin's deposition).

    
    

12. Officer Clemmons' pre-employment physical, performed on November 13, 1989, included an electrocardiogram which showed "sinus rhythm, premature systoles, ventricular borderline low qrs voltage, report must be correlated with clinical data by a physician, borderline for age 51." The examining physician noted in his records that Officer Clemmons had "premature ventricular contractions, borderline ekg, 1+ albumin in urine; advised to see cardiologist about pvc's."

    
    

13. Nonetheless, the agency, knowing the results of Clemmons' pre- employment physical and that he would be called upon to deal regularly with violent and abusive inmates still chose to employ Clemmons beginning in December, 1989.

    
    

14. Prior to his death, Clemmons' fellow correctional officers and superior viewed him as healthy and in "tip-top shape." He had served as a correctional officer at the Calhoun Correctional Institution without any health problems from December 1989 until his death, a total of ten months.

15. The instructions on Clemmons' death certificate required the physician pronouncing death to state "IMMEDIATE CAUSE (final disease or condition resulting in death)" on the first line, and thereafter to "sequentially list conditions, if any, leading to immediate cause. Enter UNDERLYING CAUSE (Disease or injury that initiated events resulting in death) LAST." On the line of Clemmons' death certificate requiring the physician pronouncing death to list the "immediate cause of death," the pronouncing physician listed "cardiac arrest." On the first line of Clemmons' death certificate requiring the physician pronouncing death to fill in "due to or as a consequence of" the pronouncing physician listed "ASCAD" (a misnomer probably signifying "atherosclerotic heart disease"). Nothing more has been inserted on the remaining lines providing for sequentially listing conditions.

    
    

16. However, the physician who pronounced death did not testify at formal hearing nor did the physician who performed the pre-employment physical.

    
    

17. Dr. Lawrence J. Kanter, a board certified cardiologist and the only medical expert to testify in this cause, reviewed Officer Clemmons' pre- employment physical with EKG, the depositions of the witnesses present on September 30, 1990, the death certificate, and all relevant medical reports. With regard to the death certificate, Dr. Kanter testified that without the benefit of previous examination or an autopsy, neither he nor the physician pronouncing death could properly make any diagnosis of preexisting atherosclerotic disease. With regard to the pre-employment physical and EKG printout, he opined that all that was clear therefrom was that on the day of the pre-employment physical, Officer Clemmons had had slightly elevated blood pressure and an EKG which was not abnormal for a person his age.

    
    

18. Dr. Kanter also noted that one may have some mild problem or may even have atherosclerosis and still may not have any significant clinical heart disease. He stated that while atherosclerosis can result in a plaque rupture from changes in blood pressure brought about by emotional stress followed by the blood vessels occluding and thus a sudden heart attack or stroke, the ventricular fibrillation (chaotic beating of the heart so that it is unable to support life) which Officer Clemmons suffered also could result from other stress-induced factors.

    
    

19. Dr. Kanter rendered his opinion within a reasonable degree of medical probability that the cause of Officer Clemmons' death was sudden cardiac death because Officer Clemmons never had ventricular fibrillation or a blackout or syncopal episode before, was evaluated by physicians and no heart disease was documented to any certainty, and he had severe emotional distress which was totally out of character to his normal way of functioning. Upon cross- examination, Dr. Kanter indicated that although "anything is possible, the temporal relationship within minutes of a severe emotional stress makes it inconceivable to consider anything else except something that's of the outer realm of possibility." Dr. Kanter considered it important in forming his opinion that Officer Clemmons had died as the result of a stress-induced cardiac death that Officer Clemmons had evidenced no marked symptomatology for at least ten months, suffered a significant emotional trauma, was extremely upset, and within moments of being upset had a cardiac arrest and was not resuscitated.

    
    

20. Respondent attacked the weight and credibility of Dr. Kanter's opinion that the emotional trauma of the altercation with Inmate Miller triggered Officer Clemmons' sudden cardiac death because of the physician's expressed belief that Officer Clemmons' collapse came "within moments" of the traumatic

    confrontation and the record as a whole shows that the time lapse was 40 minutes, but there is absolutely nothing to show how few moments Dr. Kanter meant or that he did not mean 40 minutes. It is also noteworthy that Dr. Kanter also stated that his opinion was partly based on the fact that Clemmons' collapse occurred "within five minutes of the marked change in affect," referring to Clemmons' walking moodily in the outside yard, not in referring to the angry and upset condition Officer Clemmons evidenced immediately after the precipitating physical episode in the dormitory.

    
    

21. Upon the only credible, competent medical evidence, it appears that whether Officer Clemmons died from atherosclerosis aggravated by emotional stress producing cardiac death or simply died an instantaneous cardiac death without pre-existing atherosclerosis and/or heart disease, the precipitating cause of death was his emotional reaction to acute stress following the altercation with Inmate Miller.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

23. As the applicant for benefits, the burden of proof in this cause is upon Petitioner, and if Officer Clemmons died in-line-of-duty, then his widow is entitled to special benefits accruing under Section 121.091 (7) F.S.

    
    

24. The statutory and regulatory definitions affecting entitlement are as follows:

    
    

    Section 121.021 (14) F.S.--

    Death in line of duty means death arising out of and in the actual performance of duty required by a member's employment during his

    regularly scheduled working hours or irregular working hours as required by the employer. The administrator may require such proof as he deems necessary as to the time, date and cause of death, including evidence from any available witnesses.

    Workers' Compensation records under the provisions of Chapter 440 may also be used.

    Rule 22B-6.001(22) F.A.C.--

    Death in line of duty means death arising out of and in the actual performance of duty required by a member's employment during his regularly scheduled working hours or irregular working hours as required by the employer.

    
    

25. Respondent's denial of in-line-of-duty benefits hangs on its belief that Officer Clemmons' death was caused by underlying heart disease, not the incident with Inmate Miller. Further, Respondent's proposal contends that Officer Clemmons had plenty of time to calm down in the 40 minutes between the beginning of the pushing/slapping incident with Inmate Miller at 11:55 a.m. and Clemmons' death at 12:35 p.m.; that the pushing/slapping incident was relatively non-violent behavior by an inmate whom any correctional officer could have expected to behave violently; and that for a correctional officer granted "special risk" status in the state retirement system by virtue of Section 121.0515(1) F.S., such incidents were "routine" and non-compensable under the

    in-line-of-duty definition at Section 121.021(14) F.S.

26. With regard to Respondent's reliance upon Section 121.0515(1) F.S., there is no direct evidence that Officer Clemmons was a "special risk" employee. Assuming, arguendo, that all correctional officers are designated "special risk" employees, the cited statute only provides that "special risk" employees receive more compensation by way of assigning an inflated retirement "credit per year of service" to such employees because such employees may "find it necessary, due to the physical and mental limitations of their age, to retire at an earlier age and usually with less service," than other types of employees who perform work which is less physically demanding or arduous, or work that requires less extraordinary agility and mental acuity. This extra credit is assigned so that "special risk" employees will not suffer a disparate economic deprivation. Respondent has shown no significant nexus between that provision for extra credit and the statutory definition of "in-line-of-duty" to be applied in this cause.

    
    

27. Respondent's concern that the undersigned will determine the instant retirement entitlement case upon the basis of a letter of voluntary acceptance of responsibility sent by the state's workers' compensation administrator, the Florida Department of Insurance, Division of Risk Management, due to the theory of res judicata or upon the "arising out of and in the course of employment test" enunciated under Chapter 440 F.S. is ill-founded. The denial of Respondent's motions to strike (see supra.) means that Colvin's testimony and the workers' compensation documentation may be admitted in evidence and considered, but the law in Florida is clear that this evidence is not dispositive of the instant proceeding pursuant to the state retirement system. See, Division of Retirement v. Allen, 395 So. 2d 1192 (Fla. 1st DCA 1981) and Walker v. State of Florida, Division of Retirement, 360 So. 2d 129 (Fla. 1st DCA 1978). The case of Larsenia Porter v. Division of Retirement, 591 So. 2d 1108 (Fla. 2d DCA 1992) discusses the need for medical report hearsay to be supported by direct medical physician evidence so as to be admissible under the relaxed test of Section 120.58(1) F.S. and does not stand for the legal proposition Respondent has attributed to it.

    
    

28. Interestingly, all of the cases cited by Respondent to the effect that routine work cannot render a heart attack or vascular accident compensable for purposes of in-line-of-duty retirement benefits are cases of non-state employees which arose under the Florida Workers' Compensation Act, Chapter 440 F.S.1/ As previously stated, case law in the field of workers' compensation is not controlling for purposes of the pending retirement claim. See, Walker v. State of Florida, Division of Retirement, supra. Also, the courts have specifically held that the "arising out of" test developed under workers' compensation law does not apply to the definition of "in-line-of-duty" under retirement Section

    121.021 F.S. See, Division of Retirement v. Allen, supra. Moreover, because workers' compensation case law is so unsettled in the area of heart attacks arising out of and in the course of employment on the basis of routine/non- routine activity, the Chapter 440 F.S. workers' compensation body of case law is not compelling or persuasive, even by analogy, on the issue of entitlement to retirement/survivor benefits of a state employee under the in-line-of-duty test of Section 121.021(14) F.S.

    
    

29. However, the case law arising under the state retirement statute Section 121.021, F.S. for death or disability in-line-of-duty are directly on point, and it is significant that these cases recognize both acute stressful incidents and prolonged chronic stress as precipitating factors to death/disability and also acknowledge that aggravation of prior non-symptomatic

    conditions may be compensable as arising out of and in the actual performance of duty, that is, arising "in-the-line-of-duty".

    
    

30. In Division of Retirement v. Allen, supra., a correctional officer at Florida State Prison was permitted to recover in-line-of-duty benefits on the basis that his stroke was caused by job stress. Therein, the First District Court of Appeal specifically held that the in-line-of-duty test is broader than the workers' compensation test for "arising out of and in the course and scope of employment," and that where the disability is "revealed" by the stress of the applicant's job, notwithstanding the pre-existing condition, the disability is "in-line-of-duty" for retirement purposes. This case is so squarely on point with the instant one that it cannot be ignored.

    
    

31. In Division of Retirement v. Putnam, 386 So 2d 824 (Fla. 1st DCA 1980), it was held that a compensably disabling illness, in contrast to injury, need not suddenly occur or manifest itself in performance of employment duties, and substantial causal relationship between the employee-teacher's stressful job environment and activity and his stroke suffered at home long after he was verbally and physically abused by students was sufficient to qualify him for in- line-of-duty disability retirement benefits. In Moore v. State, 368 So. 2d 664 (Fla. 1st DCA 1979), it was an uncontroverted fact that the employee-teacher, whatever his prior physical condition, had been able to and did perform his duties prior to an attack by a student and thereafter was permanently totally disabled by back injuries which medical witnesses were able to relate to the attack. It also was held, under the retirement statute, that the teacher had proven that his in-line-of-duty injury was the substantial producing cause of his disability and he was therefore entitled to "in-line-of-duty" disability retirement, despite "certain episodes of trauma superimposed on long-standing moderately severe osteoarthritis" of the same spinal areas. In Bolinger v. Division of Retirement, State Dept. of Administration, 335 So. 2d 568 ( Fla. 1st DCA 1976), a house mother at a state school for girls tripped over a tree root on uneven ground and fell while escorting a group of the girls under her care from the dining hall to the dormitory. The fall aggravated a congenital condition which for various reasons proved inoperable and she was found entitled to in-line-of-duty disability retirement benefits as a result.

    
    

32. The case of Tingler v. City of Tampa, 400 So. 2d 146 (Fla. 2d DCA 1981), pet. for rev. den. City of Tampa v. Tingler, 408 So. 2d 1092 (Fla. 1981), was not determined under the state retirement statutes, but the case is instructive in that it relies on a retirement case, Division of Retirement v. Allen, supra. Tingler was a police officer who was unable to return to his job due to mental illness, and he was determined to have demonstrated a permanent disability received "in the service" for purposes of an "in-line-of-duty" City disability pension, despite the fact that the disability was due to a preexisting condition which was aggravated by the stress of his job as a police officer.

    
    

33. The present fact situation shows that Officer Clemmons was never appropriately diagnosed as having atherosclerosis or heart disease. The evidence also shows that neither atherosclerosis or heart disease nor any other impairment, disease, or injury inhibited his performance of his correctional officer duties for the full 10 months he was employed. The evidence further shows that the most probable cause of Officer Clemmons' sudden cardiac death was stress induced by the confrontation with Inmate Miller and that his death from stress could have occurred either as the result of prior disease or without the presence of any disease. Under the existing case law, it does not matter whether the traumatic stressful episode with Inmate Miller triggered the

manifestation of pre-existing atherosclerosis or heart disease or triggered an immediate and unrelated cardiac death. Either way, the traumatic event and the death occurred in-the-line-of-duty.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a Final Order finding that Correctional Officer Clemmons suffered death in-the-line-of-duty and awarding his survivors the appropriate benefits commensurate therewith.

DONE and ENTERED this 25th day of August, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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

25th day of August, 1992.

ENDNOTE

1/ Skinner v. First Florida Bldg. Corp., 490 So. 2d 1367 (Fla. 1st DCA 1986), Gardinier, Inc. v. Coker, 564 So. 254 (Fla. 1st DCA 1990), Walker v. Friendly Village of Brevard, 559 So. 2d 258 (Fla. 1st DCA 1990); Daniels v. Office Mart Holding Corp. 548 So. 2d 828 (Fla. 1st DCA 1989); Ft. Lauderdale Transit Lines v. Bass, 206 So. 2d 390 (Fla. 1968).

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-2479

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1-4; 6-9; 11-17;

19-21; 23-24; 26 Accepted except where subordinate,

unnecessary, or cumulative

5 Covered in FOF 7-10 and resolved upon the greater weight of the credible competent substantial evidence

10 Accepted except as to the time. Covered in FOF 7-10 and resolved upon the greater weight of the credible competent substantial evidence.

18 Accepted except for the word "immediately" which is not supported by Officer Branaman's corrected testimony towards the end of his deposition.

22, 25 Accepted except for timeframe which Officer Branaman essentially recanted. See FOF 7-10.

27-37 Except for minor modification to more closely conform to the expert evidence as a whole and to eliminate irrelevant, immaterial, unnecessary, subordinate, and cumulative material, these proposals are accepted.

Respondent's PFOF:

1. Accepted

   
   

2. Rejected because, as stated, the proposal is hearsay, misleading, and not supported by the greater weight of the credible, competent substantial evidence. See FOF 12

   
   

3. Rejected because, as stated, the proposal is misleading and is not supported by the greater weight of the credible, competent substantial evidence. Also, it contains legal argument. See FOF 17-21

4-5; 8 Accepted except where subordinate, unnecessary, and cumulative.

6-7 Rejected as inadmissible and non-probative hearsay

9; 12; 14 Rejected as stated because as stated this is

mere legal argument. See, FOF 7-10

1. Rejected as subordinate, unnecessary, and cumulative, and rife with legal argument and hearsay. Covered in FOF 7-10

   
   

2. Rejected in part and accepted in part. The legal argument that what was clearly testified-to and unrefuted was not reasonable is not helpful and is rejected. The remainder of the proposal does not account for the totality of Officer Lockett's testimony. The material is covered in FOF

7-10

13 Accepted in part and rejected in part. Testimony "culled" out of context and subordinate, unnecessary, and cumulative material is rejected. See FOF 7-10

COPIES FURNISHED:

David M. Robbins, Esquire 1125 Blackstone Road

Jcksonville, Florida 32202

Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center Building C

2639 N. Monroe Street Tallahassee, Florida 32399-1560

A. J. McMullian, III, Director Division of Retirement

Cedars Executive Center Building C

2639 N. Monroe Street Tallahassee, Florida 32399-1560

John A. Pieno, Secretary Department of Management Services

435 Carlton Buildinng Tallahassee, Florida 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 consult with 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES

DIVISION OF RETIREMENT

ANNE B. CLEMMONS,

Petitioner,

DOR CASE NO. DR 91-04

vs. DOAH CASE NO. 91-2479

DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,

Respondent.

/

FINAL ORDER

This matter came up before the Hearing Officer upon Joint Stipulation of the Parties for a determination upon jointly agreed facts. The Hearing Officer, Ella Jane P. Davis, a duly appointed Hearing Officer of the Division of Administrative Hearings, approved the Joint Stipulation. The Parties timely filed proposed findings of fact and conclusions of law. The Parties were as follows:

For Petitioner: David M. Robbins, Esquire

Attorney at Law

233 East Bay Street Suite 1125

Jacksonville, Florida 32202

For Respondent: Stanley M. Danek, Esquire

Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C

Tallahassee, Florida 32399

A Recommended Order was issued on August 25, 1992. A copy of the Recommended Order is attached hereto, incorporated by reference and made a part of this Final Order as an exhibit. Having considered the Findings of Fact in the Recommended Order together with all matters of record reduced to writing, the Division of Retirement hereby adopts the Findings of Fact in the Recommended Order. However, because some of the Conclusions of Law do not comply with the Florida Retirement System (FRS) law, Chapter 121, Florida Statutes, and the FRS rules, Chapter 22B, Florida Administrative Code, they are rejected except as specifically adopted in this Order.

The issue to be decided is whether or not the Petitioner is entitled to receive in-line-of-duty death benefits from the retirement account of her husband, Hewey Clemmons, deceased, under the FRS law.

CONCLUSIONS OF LAW

1. Conclusion of Law Nos. 2 and 3 are adopted.

   
   

2. Conclusion of Law Nos. 4, 5 and 6 are rejected.

   
   

3. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue that he is entitled to receive the benefits unless the burden is otherwise specifically established by statute. Young v. State, Department of Community Affairs, 567 So2d 2 (Fla. 3rd DCA 1990); Balino vs. Department of Health and Rehabilitative Services, 348 So2d 349 (Fla. 1st DCA 1977).

4. Section 121.021(14), Florida Statutes, defines "death in-line-of-duty" as follows:

   
   

   Death in line of duty "means death arising out of and in the actual performance of duty required by a member's employment during his regularly scheduled working hours..."

   
   

5. In order for a petitioner to receive benefits, it must be shown that the death of the deceased member was the direct result or the natural consequence of some job-related injury or accident. If the incident in question is job-related, and, if it is legally significant, and if the deceased member died from that accident or its natural results, then the death would be considered in-line-of-duty and appropriate benefits paid to the surviving spouse. On the other hand, if the incident is not significant or the death were the result of other causes of disease processes, then the death would not be considered in-line-of-duty.

   
   

6. In the case at bar, the Division filed a motion to strike certain portions of the testimony of and an exhibit to the deposition of Stanley Colvin concerning the decision made by the Division of Workers' Compensation as to whether or not the death of Mr. Clemmons was compensable. That Motion was denied by the Hearing Officer. The Division renewed that motion in its Proposed Findings of Fact and Conclusions of Law. The Hearing Officer ruled that the information on the final disposition by the Division of Workers' Compensation was admissible but not dispositive of the issue. That conclusion of law is rejected and the exhibit is stricken and will not be considered in this proceeding. The admission of such evidence is a matter of policy and the Division on numerous occasions has consistently ruled that such evidence is not admissible at hearing. There have been no deviations in the 22 years that the Florida Retirement System has existed. Final decisions in workers' compensation proceedings, whether a letter granting benefits under Chapter 440, Florida Statutes, or by order, whether in a death in-line-of-duty or in a disability case, are not admissible in retirement cases. Further, the document was hearsay and was not an exception to the hearsay rule; therefore, it was not admissible in this proceeding. Larsenia Porter vs. Division of Retirement, 591 So.2d 1108 (Fla. 2nd DCA 1992).

   
   

7. Paragraph 7 of the Recommended Order is a correct statement of law and rule and is adopted by the Division

   
   

8. Conclusion of Law No. 8 is rejected.

   
   

9. Paragraph 9 of the Recommended Order is adopted only insofar as it relates to a correctional officer in a high stress position. Under existing law, it does not apply in non-stressful positions nor to jobs other than correctional officer.

   
   

10. Paragraph 10 of the Recommended Order is rejected as not being relevant to the case at bar.

    
    

11. Paragraph 11 of the Recommended Order is rejected as not being applicable to the Florida Retirement System. The pension system of the City of Tampa had provisions in it which permitted the retirement of the plaintiff therein.

    
    

12. Paragraph 12 of the Recommended Order is adopted.

THEREFORE, based on the above and foregoing, it is

ORDERED and DIRECTED that the request of Anne Clemmons for in-line-of-duty death benefits on the retirement account of her husband, Hewey Clemmons, deceased, in the Florida Retirement System, be and the same is hereby GRANTED.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY THE FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

DONE and ORDERED this 1st day of October, 1992, at Tallahassee, Leon County, Florida.

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

2639 North Monroe St. Bldg. C Tallahassee, Florida 32399

(904) 488-5540

FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT, THE 5TH DAY OF OCTOBER, 1992.

COPIES FURNISHED:

David M. Robbins Attorney at Law 1125 Blackstone

Jacksonville, Florida 32202

Ella Jane P. Davis Hearing Officer

Division of Administrative Hearings 1230 DeSoto Building

Tallahassee, Florida 32399

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

Tallahassee, Florida 32399

Docket for Case No: 91-002479

Orders for Case No: 91-002479