STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEWIS B. TUNNAGE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5434

) DEPARTMENT OF MANAGEMENT SERVICES, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on December 9, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Lewis B. Tunnage, pro se

450 North West 20th Avenue Fort Lauderdale, Florida 33311

For Respondent: Larry D. Scott, Esquire

Division of Retirement Cedars Executive Center Building C

2639 North Monroe Street Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to continue to receive benefits under the Florida Teachers' Retirement System.

PRELIMINARY STATEMENT

Following an injury he received while working part-time as a longshoreman on August 21, 1988, Petitioner, a classroom teacher with the Broward County School District, applied for and received disability retirement benefits from the Florida Teachers' Retirement System. Subsequent to the determination by Respondent that Petitioner was entitled to disability retirement benefits, Respondent received certain information as to Petitioner's continued employment as a longshoreman. Respondent thereafter conducted an investigation and concluded that Petitioner was no longer entitled to disability retirement benefits.

By letter dated August 4, 1992, the Director of the Division of Retirement notified Petitioner of the Respondent's intent to remove him from the retired disability payroll based on the determination that he was no longer entitled to

disability benefits. Petitioner timely requested a formal hearing to challenge Respondent's proposed action, and this proceeding followed.

At the formal hearing, it was determined that it would make for a more orderly presentation if Respondent presented its case first. Respondent thereafter called as its witnesses the Petitioner and Mark Sadler, one of Respondent's retirement administrators. Respondent also presented six exhibits, including the deposition testimony of Petitioner and of Petitioner's physician, Dr. William A. Morris, III. Petitioner testified on his own behalf and presented one exhibit. All exhibits were accepted into evidence. At the request of Respondent, official recognition was taken of Chapter 238, Florida Statutes pertaining to the retirement system for Florida teachers.

A transcript of the proceedings has not been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed as a school teacher in the public school system of Broward County, Florida, prior to October 1, 1989. Petitioner had been so employed for approximately 28 years and he was a member of the Florida Teachers' Retirement System. Petitioner was born January 1939 and was, at the time of the formal hearing, 52 years of age.

   
   

2. In addition to his employment as a school teacher, Petitioner worked part-time, on weekends, holidays, and during vacations as a longshoreman at Port Everglades.

   
   

3. On August 21, 1988, the Petitioner suffered an injury to his left ankle and leg while working as a longshoreman on the docks at Port Everglades. This accident occurred when a piece of equipment backed over Petitioner, breaking his ankle and leg. Two operations by a Dr. Smith followed the accident.

   Thereafter, Petitioner was treated by Dr. William A. Morris, III, M.D., a family practitioner.

   
   

4. Petitioner applied for disability retirement benefits under the Florida Teachers' Retirement System and asserted that the injuries he suffered on the docks rendered him unable to teach.

   
   

5. Respondent thereafter received a certification from Dr. Morris expressing the opinion that Petitioner was disabled as a result of his injuries and unable to teach school. Respondent granted Petitioner's application for disability retirement benefits in partial reliance on Dr. Morris's certification of disability. Petitioner's official retirement date was October 1, 1989, and he thereafter began to receive disability retirement benefits from the Florida Teachers' Retirement System.

   
   

6. As part of its operations, Respondent receives computer reports from the Florida Auditor General's Office which provides information as to income earned by retirees who receive benefits under the Florida Teachers' Retirement System. From the Auditor General's report, it became apparent to Respondent that Petitioner continued to work as a longshoreman at Port Everglades. The report reflected that Petitioner was receiving income from several shipping companies at the same time he was receiving disability retirement benefits.

7. Mark Sadler, one of Respondent's Retirement Administrators, thereafter requested that Petitioner complete FRS Form FR-13e, entitled "Retirees' Report of Continuing Disability", so that a determination could be made as to Petitioner's continued entitlement to disability retirement benefits.

   
   

8. Petitioner gave a negative response to the following question on Form FR13-e: "Since the date of your disability retirement, or the date you last completed a Disability Evaluation Statement, have you ever been employed in any capacity?" This response was not truthful.

   
   

9. Respondent also requested that Dr. Morris complete Form FR-13f, entitled "Physician's Report of Re-Examination" to ascertain his opinion as to Petitioner's continued disability. Dr. Morris returned the form, dated May 7, 1991, and expressed the opinion that Petitioner was still totally and permanently disabled. Dr. Morris also wrote Mr. Sadler a letter, dated June 16, 1992, expressing his opinion that Petitioner's condition was essentially unchanged from his previous indications.

   
   

10. On July 7, 1992, Mr. Sadler informed Dr. Morris by telephone that it appeared that Petitioner had been gainfully employed as a longshoreman. Dr. Morris had not been aware of that employment and expressed the opinion to Mr. Sadler by telephone that Petitioner could teach if he could perform the duties of a longshoreman.

    
    

11. On August 4, 1992, Respondent advised Petitioner in writing that it had determined that Petitioner was no longer entitled to disability retirement benefits. Petitioner contested that decision and requested a formal administrative hearing. This proceeding followed.

    
    

12. Respondent thereafter took Petitioner's deposition to determine the extent of his employment as a longshoreman. In that deposition, Petitioner described his job activities and the hours he worked. Petitioner worked as a longshoreman on the docks throughout the time he was receiving disability retirement benefits. He was employed by different shipping companies in several different capacities. He worked as a porter handling luggage, he worked with a crew loading and unloading scrap iron, he worked with a crew loading foodstuffs on passenger ships, and he worked with a crew directing the operator of a gantry crane. He drove a fork lift and served as a supervisor of various crews, a position known as a "header."

    
    

13. Prior to his own deposition, Dr. Morris reviewed Petitioner's deposition and became familiar with Petitioner's employment history since his disability retirement. Dr. Morris expressed the opinion that Petitioner was physically capable of performing the tasks required of a school teacher.

    
    

14. Petitioner testified that he suffered from pain in his left ankle and leg as a result of the accident and that he has difficulty at times walking or standing. Petitioner was also concerned that he would be inattentive to his students at times because of his discomfort and because of the medication he takes to alleviate that discomfort and to control his diabetes, gout, and arthritis.

    
    

15. Petitioner argues that his employment as a longshoreman does not establish that he is able to return to teaching and that he remains disabled. Petitioner presented no medical testimony to support his arguments. Based on Dr. Morris's testimony, Petitioner's arguments are rejected, and it is found that Petitioner is capable of returning to his employment as a teacher.

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Because Petitioner was accepted as being entitled to disability retirement benefits, the burden of proof is upon Respondent to establish by a preponderance of the evidence that Petitioner is no longer eligible for such benefits. See, generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977), and Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

18. Pursuant to the provisions of Section 238.03(1), Florida Statutes, Respondent has the authority and the responsibility to administer the Florida Teachers' Retirement System.

    
    

19. A member of the Florida Teachers' Retirement System may receive disability retirement benefits prior to his normal retirement age if he is certified by a Florida licensed physician and the Respondent concurs. Petitioner had not reached normal retirement age at the time of the formal hearing. Section 238.07(10), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (10) Any member in service, who has 10 or more years of creditable service, may ... upon his own application, be retired by the division ... on a disability retirement allowance; provided that a physician licensed by this state examines and certifies that such member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that such member should be retired, and the division concurs. In making the determination, the division may require other evidence of disability as deemed appropriate.

    
    

20. Once a member begins to receive disability benefits, the Respondent may require additional evidence of continuing disability in order for the member to continue to receive disability benefits. Section 238.07(12), Florida Statutes, provides, in pertinent part, as follows:

    
    

    (12)(a) Once each year during the first 5 years following the retirement of a member on a disability retirement allowance, and once in every 3-year period thereafter, the division may require any disability beneficiary who has not yet attained his minimum service retirement age to undergo a medical examination by a physician licensed by this state and to submit any other evidence of disability as required by the division. ...

    (b) If the division finds that a disability beneficiary is engaged in or is able to engage in a gainful occupation paying more than the difference between his disability retirement

    allowance and his average final compensation, the amount of his pension shall be reduced to an amount which, together with his annuity and the amount earnable by him, shall equal the amount of his average final compensation...

    
    

21. Respondent established by a preponderance of the evidence that Petitioner is physically able to return to his employment as a teacher. Consequently, Petitioner's disability retirement benefits should be terminated pursuant to the provisions of Section 238.07(12)(b), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which adopts the findings of

facts contained herein and which terminates Petitioner's disability retirement benefits.

DONE AND ORDERED this 6th day of January, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 6th day of January, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-5434

The only post-hearing submittal filed by Petitioner was a letter and attachment thereto that contains argument, but not proposed factual findings. Those arguments are contrary to the conclusions reached herein and are rejected.

The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order.

COPIES FURNISHED:

Lewis B. Tunnage

450 North West 20th Avenue Fort Lauderdale, Florida 33311

Larry D. Scott, Esquire Division of Retirement

Cedars Executive Center Building C 2639 North 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

Larry Strong, Acting 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 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: 92-005434

Orders for Case No: 92-005434