STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JANE R. WILKINSON, )
)
Petitioner, )
)
vs. ) CASE NO. 92-1070
) STATE OF FLORIDA, DEPARTMENT ) OF MANAGEMENT SERVICES, )
DIVISION OF RETIREMENT. )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on December 8 and 9, 1992, in Bradenton, Florida.
APPEARANCES
For Petitioner: Lawrence J. Robinson, Esquire
1605 Main Street, Suite 905
Sarasota, Florida 34236
For Respondent: Stanley J. Danek, Esquire
Division of Retirement Cedars Executive Center 2639 North Monroe Street
Tallahassee, Florida 32399-1560 STATEMENT OF THE ISSUES
Whether Dane S. Wilkinson (Wilkinson), the spouse of Petitioner, Jane
Wilkinson, died in the line of duty as defined in Section 121.021(14), Florida Statutes, so as to qualify Petitioner for the death benefits provided in Section 121.091(7)(c), Florida Statutes.
Whether the time served in the military by Wilkinson that comes within the definition of "Military service" as defined in Section 121.021(20), Florida Statutes, should be used in calculating "creditable service" for the purpose of Section 121.091(7)(b), Florida Statutes, so as to qualify Petitioner for death benefits provided in Section 121.091(7)(b), Florida Statutes, notwithstanding that Wilkinson had not completed a minimum of ten years of "creditable service" prior to his death on October 1, 1991 as required by Section 121.111(2), Florida Statutes.
PRELIMINARY STATEMENT
Subsequent to her husband's death on October 1, 1991, the Petitioner, as the surviving spouse and designated beneficiary, applied for her husband's
retirement benefits with the Division of Retirement (Division). By letter dated November 13, 1991 the Division denied Petitioner those benefits. By letter dated December 3, 1991, the Petitioner's father, Dr. William P. Riley, questioned the Division's denial of those benefits. In response to Dr. Riley's letter, the Division, by letter dated December 13, 1991, advised the Petitioner that her late husband did not have ten years of creditable service at the time of his death. Therefore, Petitioner was advised that late husband was not vested in the Florida Retirement System and no retirement benefits would be paid to her. Petitioner was also advised by this letter that the Division's denial was final agency action and that she had a right to an administrative hearing in accordance with Section 120.57, Florida Statutes to contest the Division's decision. Petitioner filed a Petition For Administrative Hearing with the Division on January 22, 1992 In the Petition, the Petitioner alleged, among other things, that Wilkinson, the deceased spouse of Petitioner, became disabled in the line of duty on August 15, 1991, and died as a result of his disabling illness on October 1, 1991. The Division transferred this matter to the Division of Administrative Hearings for conduct of hearing and assignment of Hearing Officer on February 18, 1992. The Division's Motion To Dismiss For Lack of Jurisdiction on the grounds that Petitioner had not timely alleged entitlement to death benefits based on death of spouse in the line of duty due to disabling illness was denied. Afterwards, the matter proceeded to hearing.
At the hearing, the Petitioner testified in her own behalf and presented the testimony of David L. Thomas, Ph.D., David J. Clooney, Charles Wells, Sheriff, Rebbeca Gramblin, R.N., Hector Fosser, M. D. and Steven G. Waverly, Esquire. Petitioner's exhibits 1 through 26 were received as evidence in this case. Petitioner's exhibit 26 is the deposition of David F. Blackmer which was submitted in lieu of his live testimony at the hearing. The Division presented the testimony of Audrey Lynn Batchelor, Robert M. Young, Arthur L. Burnett, Steve Beck, George Marcello, Walter Rozamar, Daryl Brown, Terry D. Worley, Guy
Stroup, Jr., Dean Emory, Chaplain, Al Gooding, and Michael Berasley. The Division's exhibits 1 through 9 were received as evidence in this case. The Division's exhibit 8 is the deposition of Wilkinson taken on July 18, 1991 in Circuit Civil Case No. CA-82-483 prior to his death on October 1, 1991.
The parties elected not to transcribe these proceedings. Therefore, a transcript was not filed with the Division of Administrative Hearings. At the conclusion of the hearing on December 9, 1993, the parties requested an extension of time for filing Proposed Recommended Orders which was granted with the understanding that the time constraint for entering a Recommended Order imposed under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The Petitioner timely filed her Proposed Recommended Orders within the extended time frame.
The Division elected not to file a Proposed Recommended Order. A ruling on each proposed finding of fact submitted by the Petitioner has been made as reflected in an Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
The Petitioner, Jane R. Wilkinson, f/n/a Jane Nelson Riley and Wilkinson were married on February 12, 1983 and lived together as man and wife until his death, except for a short period of separation from mid-October, 1990 until December 31, 1990. During this short period of separation, Wilkinson continued to perform chores and special tasks for his wife at their home. After
being reunited in January, 1991, they lived together in a close relationship until Wilkinson's death.
Petitioner is the surviving spouse and designated sole beneficiary of Wilkinson for any benefits under the Florida Retirement System having been so designated by Wilkinson at the time of their marriage.
Wilkinson was employed full time by the Manatee County Sheriff and remained employed by the Manatee County Sheriff until his death. At the time of his death, Wilkinson was classified as a correctional officer carrying the rank of sergeant. Wilkinson was certified as a special risk member of the Florida Retirement System effective January 1, 1983.
Before his marriage to Petitioner, Wilkinson had been married to Audrey Lynn Wilkinson, n/k/a Audrey Lynn Batchelor. There were two children born of this marriage. This marriage was dissolved in 1982. The former wife was granted custody of the children. Wilkinson was ordered to pay child support to the former wife.
Sometime around March, 1991, the former wife petitioned the court for an increase in child support from Wilkinson. This action by the former wife had caused some concern for Wilkinson, mainly because of its effect on his present wife. However, they apparently had reached some sort of settlement just prior to his death but the settlement was not presented to the court before his death.
Wilkinson served in the United States Army in the United States and overseas between December 30, 1974 and February 13, 1981. Wilkinson's military service between December 30, 1974 and May 7, 1975, comes within the definition of military service as defined in Section 121.021(20)(b), Florida Statutes.
In 1989, after obtaining permission from the Manatee County Sheriff's Office, Wilkinson was employed part time on the ground crew of American Airlines (AMR Services) at Sarasota-Bradenton Airport.
Wilkinson had expressed hope of obtaining ten years of creditable service in the Florida Retirement System before resigning from the Manatee County Sheriff's Office to work full time with AMR Services.
Wilkinson's last duty assignment with the Manatee County Sheriff's Department was at the Port Manatee Stockade (Port Manatee). Port Manatee was operated under a method known as "direct supervision" of inmates. This method allowed the inmates to be supervised in a dormitory type setting or "pod" from approximately 5:30 a.m. to approximately 11:30 p.m. with the correctional officers "locked in" with approximately 48 inmates. The inmates were locked in the cells between approximately 11:00 p.m. and 5:30 a.m. This type supervision is more in favor of inmates than correctional officer.
Port Manatee was one of three of this type facility in Florida and one of ten in the United States.
Since Wilkinson's death the facility has begun shifting back to the traditional type facility.
During the time Wilkinson worked with the Sheriff's Department the Department was cited for overcrowding correctional facilities in Manatee County, including Port Manatee.
Although there were no "life felons" incarcerated in Port Manatee, there were second and third degree felons who exhibited aggressive and violent behavior creating problems for the correctional officers "locked in" with them. There were times when the inmates assaulted and injured the correctional officers, including Wilkinson.
Port Manatee was understaffed during the time Wilkinson was assigned there.
Wilkinson favored the more traditional method of handling inmates rather than direct supervision and this resulted in problems between Wilkinson and some of his supervisors. Additionally, this created problems between Wilkinson and some of the inmates. Wilkinson's concern about his own safety and the safety of those under his supervision at Port Manatee created a stressful situation for Wilkinson.
Wilkinson's coworkers, including some of his supervisors, considered Wilkinson a hard worker, dedicated to those whom he supervised, a "go-getter" and a "perfectionist". Sheriff Wells considered Wilkinson an excellent correctional officer, and on a scale of one to ten would rate him as an eight.
In the Spring of 1991 Wilkinson began having difficulty in coping with the pressures and stresses of his job with the Sheriff's Department. Wilkinson had conflicts with certain supervisors and felt that these supervisors were not backing him in protecting "his men" at Port Manatee.
As early as the Spring of 1991 Wilkinson was "stressed-out", "tired all of the time", tense, "wired" and a "bundle of nerves". Wilkinson was frustrated with his job and was sad and withdrawn. During this time, Wilkinson suffered from sleeplessness which is an indication of depression.
On August 15, 1991, Wilkinson spoke with David Clooney, a close friend and coworker at Port Manatee. Wilkinson was in tears and depressed about not being able to handle his job at Port Manatee. Wilkinson wrote a good-bye letter to the Petitioner on this date and went to the Skyway Bridge with the intention of killing himself.
Instead of killing himself on August 15, 1991, Wilkinson called Petitioner and told her that he needed help. Petitioner and David Clooney picked Wilkinson up and carried him to Manatee Memorial Hospital where he was admitted for treatment as a voluntary patient in the Life Management Center.
Wilkinson was admitted to the hospital under the care of a psychiatrist, Dr. Hector Fosser. Wilkinson's mental condition on admission was diagnosed as major depression by Dr. Orrosio, a psychiatrist covering for Dr. Hector Fosser in his absence. However, upon Dr. Fosser's return, Dr. Fosser diagnosed Wilkinson,s mental condition as major depression with suicidal ideation.
During his stay at the Life Management Center, Manatee Memorial Hospital, Wilkinson was treated by Dr. Hector Fosser, a licensed psychiatrist, Dr. David Thomas, a licensed psychotherapist and Rebecca Gramblin, RN, specializing in psychiatric nursing. On August 28, 1991, Dr. Fosser discharged Wilkinson from the hospital, apparently improved. Dr. Fosser's diagnosis upon discharge was major depression, single episode with suicidal ideation.
After his discharge from the hospital, Wilkinson continued under the care of Dr. Fosser on an outpatient basis.
Early in Wilkinson's post-hospitalization period his mental condition appeared to improve for a time. Apparently, Wilkinson complied with the medication prescribed by Dr. Fosser. However, Wilkinson's mental condition deteriorated, and he became anxious and depressed. Wilkinson was scared, apprehensive about working with inmates, fearful for his "troops", and fearful of what he considered unsafe conditions at Port Manatee. Wilkinson felt that he had "lost his edge and the ability to handle risks and problems at Port Manatee".
On September 30, 1991, Wilkinson kept his appointment with Dr. Fosser who prescribed lithium and another medication for him. Dr. Fosser also wrote a note of authorization for Wilkinson to return to work at AMR Services but not for returning to work at the Sheriff's Department.
Also on September 30, 1991, Wilkinson wrote six suicide letters addressed to Sheriff Wells, several family members and a friend.
On October 1, 1991, Wilkinson continued to be upset about his job at Port Manatee and wrote four additional suicide letters addressed to his wife, mother and two friends. Also, Wilkinson talked to his close friend, David Clooney and advised him that he intended to kill himself. Clooney was unable to delay him long enough for someone to get to Wilkinson's home and possibly prevent the suicide. After talking to Clooney, Wilkinson went into his backyard and killed himself with a gunshot to his head.
Dr. Fosser, Dr. Thomas and Nurse Gramblin all testified that matters such as Wilkinson's former wife demanding more child support could have been the cause of some of the stress that Wilkinson was experiencing. However, they were all of the opinion that his job at Port Manatee was the major cause of his stress which led to his mental illness, diagnosed as major depression with suicidal ideation.
There is competent substantial evidence to establish facts to show that Wilkinson's mental condition was caused or aggravated by the stress resulting from his employment with the Manatee County Sheriff's Department, and that his suicide was the result of his mental illness.
There is competent substantial evidence to establish facts to show that Wilkinson became disabled in the line of duty on August 15, 1991, and died as a result of his disabling illness on October 1, 1991.
At the time of his death on October 1, 1991, Wilkinson had 9.91 years of creditable service which included his time with the Manatee County Sheriff's Department, Manatee Memorial Hospital and Sarasota County Public Hospital Board but did not include any military time.
At the time of Wilkinson's death his rate of pay was $1,038.88 biweekly or an annual and monthly rate of $27,010.88 and $2,250.91, respectively.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
The Petitioner has alleged that her spouse, Dane S. Wilkinson died in the line of duty as defined in Section 121.021(14), Florida Statutes, so as to qualify her for the death benefits provided in Section 121.091(7)(c)1., Florida Statutes.
Section 121.021(14), Florida Statutes, provides in pertinent part as follows:
(14) "Death in line of duty" means death arising out of 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....
Section 121.091(7)(c)1., Florida Statutes (1992 Supp) 1/, provides in pertinent part as follows:
(c)1. The surviving spouse of any member killed in the line of duty may receive a monthly pension equal to one-half of the monthly salary being received by the member at the time of death for the rest of the surviving spouse's lifetime; or, in lieu of the above, the surviving spouse may elect to receive the benefit provided in paragraph (b).
The test for an in line of duty disability award is whether an injury or illness arising out of and in the actual performance of duty required by a member's employment was the substantial, producing cause or an aggravating cause of a member's total and permanent disability. Blanton v. Division of Retirement, 480 So.2d 134, 135 (1 DCA Fla. 1985). This test was reiterated by the court in Dixon v. Department of Administration, Division of Retirement, 481 So.2d 52, 53 (1 DCA Fla. 1985).
In the alternative, Petitioner claims that her deceased spouse's creditable military time should be added to his "creditable service" of 9.91 years so as to give him the ten years of "creditable service" required by Section 121.091(7)(b), Florida Statutes, and thereby qualify the Petitioner for death benefits provided in Section 121.091(7)(b), Florida Statutes.
Section 121.111(2)(a), Florida Statutes, provides as follows:
Any member whose initial date of employment is before January 1, 1987, who has military service as defined in s. 121.021(20)(b), and who does not claim such service under subsection (1) may receive creditable service for such military service if:
The member has completed a minimum of 10 years of creditable service;
It is clear from the language in Section 121.111(2)(a), Florida Statutes, that the member must have completed 10 years of creditable service with an employer(s) covered by the Florida Retirement System before credit for military service is available as creditable service for retirement benefits.
As the party asserting an affirmative issue before an administrative tribunal, the burden of proof is on Petitioner to establish facts to show that she qualifies for the benefits provided in Section 121.091(7)(b) or (c)1., Florida Statutes. Florida Dept. of Transp. v. J. W. C. Company, Inc, 396 So. 2d 778 (1 DCA Fla. 1981). Under this test, Petitioner need only prove Wilkinson's mental illness was either a substantial, producing cause or aggravating cause of his disability which resulted in his death. Dixon, 481 So.2d 4821 52, 53 (1 DCA Fla. 1985). It is clear that Petitioner has met the test as set forth by the court and thereby qualifies for the death benefits provided in Section 121.091(7)(c)1., Florida Statutes (1992 Supp.). However, Petitioner has failed to prove that she qualifies for the death benefits provided in Section 121.091(7)(b), Florida Statutes, and has failed to sustain her burden in that regard.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order finding that Dale S. Wilkinson suffered death in the line of duty and awarding his surviving spouse and designated beneficiary, Jane R. Wilkinson, the appropriate benefits commensurate therewith.
RECOMMENDED this 22nd day of March, 1993, at Tallahassee, Florida.
WILLIAM R. CAVE
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 22nd day of March, 1993.
ENDNOTE
1/ This section was amended by the 1992 legislature by deleting the language requiring the surviving spouse to forego the death benefits upon remarriage.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1070
The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case.
Petitioner's Proposed Findings of Fact.
1. The Petitioner has submitted her Proposed Findings of Fact in a series of unnumbered paragraph, however, they have been adopted in substance as modified in the Recommended Order except where they were cumulative, subordinate, unnecessary, immaterial or irrelevant.
Respondent's Proposed Findings of Fact.
The Respondent elected not to file any proposed findings of fact.
COPIES FURNISHED:
Lawrence J. Robinson, Esquire 1605 Main Street, Suite 905
Sarasota, Florida 34236
Stanley J. Danek, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street
Tallahassee, Florida 32399-1560
A. J. McMullian, III, Director Division of Retirement
Cedars Executive Center 2639 North Monroe Street
Tallahassee, Florida 32399-1560
William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307
Koger Executive Center 2737 Centerview Drive
Tallahassee, Florida 32399-0950
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 their 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.
| Issue Date | Proceedings |
|---|---|
| Apr. 08, 1993 | Final Order filed. |
| Mar. 22, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 12/8-9/92. |
| Jan. 15, 1993 | Petitioner`s Proposed Findings of Facts filed. |
| Dec. 10, 1992 | CASE STATUS: Hearing Held. |
| Dec. 08, 1992 | Petitioner`s Formal Hearing Memorandum filed. |
| Dec. 03, 1992 | Amended Notice of Hearing sent out. (hearing set for 12/8-9/92; 9:00am; Bradenton) |
| Aug. 28, 1992 | Notice of Hearing sent out. (hearing set for December 8 and 9, 1992;9:00am; Bradenton) |
| Aug. 24, 1992 | Order of Continuance sent out. (hearing date to be rescheduled at a later date; parties to respond by 9/8/92) |
| Aug. 21, 1992 | Supplemental Answers to Additional Interrogatories to Respondent filed. |
| Aug. 20, 1992 | (Respondent) Response to Request for Admissions; Petitioner`s Additional Interrogatories to Respondent filed. |
| Jul. 30, 1992 | (Respondent) Notice of Taking Depositions filed. |
| Jul. 20, 1992 | Petitioner`s Notice of Serving Interrogatories; Petitioner`s Request for Production; Petitioner`s Request for Admissions filed. |
| Jul. 07, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 1:00pm, on 8-24-92 in Palmetto; and 9:00am, on August 25-26, 1992 in Bradenton) |
| Jul. 06, 1992 | Petitioner`s Response to Request for Production filed. |
| Jul. 06, 1992 | Petitioner`s Response to Request for Production filed. |
| Jun. 29, 1992 | (Respondent) Motion for Additional Time filed. |
| Jun. 18, 1992 | Respondent`s Request for the Production of Documents; Motion to Shorten Time to Produce filed. |
| Jun. 09, 1992 | Amended Notice of Hearing (As to Room Only) sent out. (hearing set for 7-24-92; 9:00am; Bradenton , room 4203) |
| May 22, 1992 | (Respondent) Notice of Taking Deposition filed. |
| May 01, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Apr. 28, 1992 | Letter to DOAH from Lawrence J. Robinson (re: Notice of correct address) filed. |
| Apr. 28, 1992 | (Respondent) Notice of Service of Respondent`s Interrogatories of Petitioner filed. |
| Apr. 27, 1992 | (Respondent) Notice of Production From Non-Party (8) filed. |
| Apr. 21, 1992 | Notice of Hearing sent out. (hearing set for 7-24-92; 9:00am; Bradenton) |
| Apr. 09, 1992 | Petitioner`s Response to Respondent`s Motions filed. |
| Apr. 01, 1992 | Notice sent out. (hearing set for 4-14-92; 9:00am; Bradenton) |
| Mar. 24, 1992 | (Respondent) Motion to Dismiss for Lack of Jurisdiction; Motion to Determine Issues and Facts to be Litigated w/attachments; Request for Oral Argument filed. |
| Mar. 24, 1992 | (Respondent) Motion for Pre-Hearing Conference to Clarify Issues; Motion to Continue to Permit Further Discovery filed. |
| Mar. 23, 1992 | Petitioner`s First Interrogatories to Petitioner filed. |
| Mar. 23, 1992 | Petitioner`s Notice of Serving Interrogatories filed. |
| Mar. 23, 1992 | Petitioner`s Request for Subpoenas filed. |
| Mar. 05, 1992 | Notice of Service of Respondent`s First Interrogatories on Petitioner filed. |
| Mar. 04, 1992 | Notice of Hearing sent out. (hearing set for 5/7/92; 9:00am; Bradenton) |
| Mar. 02, 1992 | (Petitioner) Response to Initial Order filed. |
| Feb. 24, 1992 | Initial Order issued. |
| Feb. 20, 1992 | Notice of Election to Request Assignment of Hearing Officer; Petition for Administrative Hearing filed. |
| Feb. 19, 1992 | Notice of Election to Request Assignment of Hearing Officer filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 06, 1993 | Agency Final Order | |
| Mar. 22, 1993 | Recommended Order | Job stress was substantial probable or aggravated cause of mental illness which resulted in death of employee therefore, survivng spouse entitled to in line of duty benefits. |
