STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF SEMINOLE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2872

)

TERESA RYNCZAK, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 6, 1995, in Sanford, Florida.

APPEARANCES

For Petitioner: Ned N. Julian, Esquire

Director of Legal Services Seminole County Public Schools Post Office Box 1358

Sanford, Florida 32772-1538

For Respondent: Teresa Rynczak, pro se

1006 Aviles Court

Oviedo, Florida 32765 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should be terminated from her employment for failure to return to duty.

PRELIMINARY STATEMENT

Petitioner notified Respondent of her proposed termination by letter dated April 13, 1995. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of: Mr. Daniel Andrews, Director of Food Service for Seminole County; Mr. John Reichert, Ombudsman for Seminole County Schools; and the deposition testimony of James Urbach, M.D.

Petitioner submitted four exhibits for admission in evidence. Petitioner's Exhibit 1 is the contract between non- instructional personnel and Petitioner.

Petitioner's Exhibit 2 is a letter from Thomas J. Brodrick, M.D., to Respondent, dated January 26, 1995. Petitioner's Exhibit 3 is a Notice of Claimant Disability Status from the Florida Department of Labor and Employment Security, Division of Workers' Compensation. Petitioner's Exhibit 4 is a copy of a letter

from Mr. Reichert to Respondent, dated February 3, 1995. Petitioner's Exhibits 1-4 were admitted in evidence without objection.

Respondent testified in her own behalf and called no other witnesses.

Respondent submitted no exhibits for admission in evidence.

A transcript of the formal hearing was not requested by either party.

Petitioner timely filed its proposed recommended order ("PRO") on September 18, 1995. Respondent did not file a PRO. Proposed findings of fact in Petitioner's PRO are accepted in this Recommended Order.

FINDINGS OF FACT

1. Respondent is a non-instructional employee of Petitioner. Respondent is employed by Petitioner in its food services division.

   
   

2. Respondent sustained an injury to her lower back on or about April 21, 1994, within the scope of her employment with Petitioner. Respondent reached for a box in an overhead location and fell backward onto her buttocks. She complained of discomfort in her lower back.

   
   

3. Dr. Thomas J. Brodrick treated Respondent for her injury. The course of treatment included a magnetic resonance image ("MRI") and two electromyographic studies ("EMGs").

   
   

4. On January 26, 1995, Dr. Brodrick discharged Respondent from his care. Dr. Brodrick determined that Respondent has no physical impairment and no permanent disability.

   
   

5. After January 26, 1995, Respondent failed to return to work. By letter dated February 3, 1995, Petitioner directed Respondent to report to work on February 8, 1995. In the same letter, Petitioner notified Respondent that she would be terminated from her employment if she did not report to work.

   
   

6. On March 28, 1995, Respondent was evaluated by Dr. Urbach. Dr. Urbach examined Respondent, reviewed the records of Dr. Brodrick, and reviewed the MRI and EMG results.

   
   

7. Respondent is physically capable of returning to work. Respondent has degenerative disk disease at levels L-1-2 and L-2- 3. Respondent's complaints are caused by functional overlay, or secondary gain motives, rather than by a physical impairment or permanent disability.

   
   

8. On March 28, 1995, the Florida Department of Labor and Employment Security, Division of Workers' Compensation, issued a Notice of Claimant Disability Status. The notice determined that Respondent is able to return to work without restrictions.

   
   

9. Since January 26, 1995, Respondent has been physically able to return to work without restrictions. Respondent failed to return to work after January 26, 1995.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

11. Petitioner has the burden of proof in this proceeding. Petitioner must demonstrate by a preponderance of the evidence that Respondent is able to return to work without restrictions and has failed to do so. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

12. Petitioner satisfied its burden of proof. Respondent failed to return to work after recovering from her lower back injury. Respondent's complaints are not caused physical impairment or permanent disability.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from

her employment.

RECOMMENDED this 6th day of October, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 October, 1995.

COPIES FURNISHED:

Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771

Ned N. Julian, Esquire Director of Legal Services Seminole County Public Schools Post Office Box 1358

Sanford, Florida 32772-1538

Teresa Rynczak, pro se 1006 Aviles Court

Oviedo, Florida 32765

NOTICE OF RIGHT TO SUBMIT EXCEPTION

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: 95-002872

Orders for Case No: 95-002872