STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCELLA M. MIKA, )

)

Petitioner, )

)

vs. ) Case No. 96-2573

)

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION OF ) WORKERS' COMPENSATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 7, 1997, a formal administrative hearing was held in this case in Sarasota, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Christopher B. Young, Esquire

Riden, Earle, & Kiefner, P.A.

100 Second Avenue South, Suite 400, North Tower

St. Petersburg, Florida 33701-4336

For Respondent: Michael G. Moore

Senior Attorney

Department of Labor and Employment Security

Hartman Building, Suite 307 2012 Capital Circle Southeast

Tallahassee, Florida 32399-2189 STATEMENT OF THE ISSUES

The issues presented to the Administrative Law Judge for resolution in this case were:

1. Whether it is necessary for Petitioner, Marcella Mika, to go to law school to return to suitable gainful employment.

2. Whether the provisions of Section 440.491, Florida Statutes (1995), apply to Petitioner.

3. Whether the provisions of Florida Administrative Code Rules Chapter 38F-55 apply to Petitioner.

4. Whether Respondent is required to reimburse Petitioner for tuition and the reasonable costs of board and lodging for Petitioner's attendance at Stetson University College of Law.

PRELIMINARY STATEMENT

On March 12, 1996, the Respondent, the Department of Labor and Employment Security, Division of Workers' Compensation, denied the request of the Petitioner, Marcella Mika, for training to be able to return to suitable gainful employment. On May 16, 1996, the Petitioner filed a Petition for Hearing. The Petition for Hearing advised that the Petitioner had been accepted by the Stetson University College of Law for the Fall 1996 semester and indicated her desire to pursue a career in law with the assistance of the Workers' Compensation Trust Fund.

The Respondent referred the matter to the Division of Administrative Hearings (DOAH) on May 28, 1996. Based on the Joint Response to the Initial Order, final hearing initially was noticed for September 19, 1996. However, on September 13, 1996, the parties filed a Joint Motion for Abeyance to give them the opportunity to fully explore the possibility of settlement.

Final hearing was continued, and the parties were required to report monthly as to the status of settlement discussion.

When the parties failed to file the required status reports, an Order Dismissing Proceeding and Closing File was entered on February 3, 1997. However, on February 18, 1997, new counsel for the Petitioner moved to vacate the order and set final hearing.

An Order Vacating Dismissal, Reopening File, and Setting Final Hearing for May 23, 1997, was entered on February 28, 1997. A Prehearing Order requiring the filing of a prehearing stipulation also was entered.

On May 12, 1997, the Respondent's Unopposed Motion for a Continuance was filed due to the unavailability of a witness, and final hearing was continued until August 7, 1997. The parties' Joint Prehearing Stipulation was filed on August 1, 1997.

At the final hearing, the Petitioner testified in her own behalf, called one witness, and had Petitioner's Exhibit 1 admitted in evidence. The Respondent called two witnesses and had Respondent's Exhibits 1 through 7 admitted in evidence.

After presentation of the evidence, the Respondent ordered the preparation of a transcript of the final hearing, and the parties were given ten days following the filing of the transcript in which to file their proposed recommended orders. The court reporter filed the transcript of the hearing on August 20, 1997, making proposed recommended orders due August 30, 1997. However, the Petitioner's unopposed motion for an

extension of time up to and including September 11, 1997, was granted, as was the Respondent's unopposed motion for a further extension of time up to and including September 26, 1997.

Unfortunately, throughout the transcript, mistaken reference is made to Section "440.49(1)." The correct reference in many instances should be to Section 440.491, Florida Statutes (1995). For example, in the Respondent's opening statement at pages 10- 14, as well on pages 23, 67, 68, 76, and 94, the references should be reflect to Section 440.491. Essentially, the transcript does not distinguish between Section 440.49(1), Florida Statutes (1991), and Section 440.491, Florida Statutes (1995).

FINDINGS OF FACT

Petitioner's Injury and Recovery

1. On January 24, 1991, Petitioner sustained a compensable injury within the course and scope of her employment with her employer, Community Dialysis Center.

2. Petitioner was diagnosed as sustaining acetabular fracture of the left hip with residual sciatic neuropathy and cervical injury as a result of tripping and falling over a telephone cord.

3. On or about January 7, 1993, Petitioner reached maximum medical improvement with the following physical capabilities:

   Petitioner can work full-time.

   
   

   Petitioner can drive an automobile with an automatic transmission.

   Petitioner can drive 30 minutes to an hour at one time and a total of 2-3 hours in a work day.

   
   

   Petitioner can walk 5-10 minutes at one time and a total of 1-2 hours in a work day.

   
   

   Petitioner can stand 5-10 minutes at one time and a total of 1-2 hours in a work day.

   
   

   Petitioner can sit 2-3 hours at one time and a total of 6-8 hours in a work day.

   
   

   Petitioner can lift/carry/push/pull up to twenty pounds (20 lbs.) occasionally up to 1/3 of a work day.

   
   

   Petitioner cannot lift/carry/push/pull more than twenty pounds (20 lbs.).

   
   

   Petitioner can bend frequently for 1/3 to 2/3 of a work day.

   
   

   Petitioner can twist frequently for 1/3 to 2/3 of a work day.

   
   

   Petitioner cannot stoop or squat.

   
   

   Petitioner can kneel occasionally up to 1/3 of a work day.

   
   

   Petitioner cannot crawl.

   
   

   Petitioner cannot climb stairs or ladders.

   
   

   Petitioner can reach above her shoulder constantly for 2/3 or more of the work day.

   
   

   Petitioner can reach across a desk/counter constantly for 2/3 or more of the work day.

   
   

   Petitioner can reach below her waist constantly for 2/3 or more of the work day.

   
   

   Petitioner can grasp/finger with her left and right hand constantly for 2/3 or more of the work day.

   Petitioner can operate foot controls frequently and up to 1/3 to 2/3 of a work day.

   
   

   Petitioner's Education and Employment History

   
   

4. Petitioner has earned an Associate in Applied Science degree in Nursing from Northern Virginia Community College awarded on or about June 9, 1973.

5. From 1973 until her work-related accident on January 24, 1991, Petitioner worked as a registered nurse.

   Petitioner earned approximately $782.65 weekly and received fringe benefits valued at approximately $41.65 weekly.

6. From 1981 through 1985, Petitioner was employed with Woodbridge Manassas Dialysis Center as a Systems Manager/Charge Nurse.

7. From September 1987 until June 1989, Petitioner was employed as a utilization review specialist with Florida Employers Insurance Service Company earning approximately $23,000 to $27,000 per year.

8. Following her accident, Petitioner returned to work with the Community Dialysis Center at her convenience for 5-6 hours per week earning fourteen dollars ($14.00) per hour from April 15, 1992, until January 31, 1994. At that time, the Community Dialysis Center closed and ceased doing business in Petitioner's area of residence.

9. From September 1994 until May 1996, while pursuing a bachelor of arts degree at the University of South Florida (USF),

   the Petitioner was employed in a USF work study position, seven to ten hours per week, earning five dollars ($5.00) per hour.

10. Petitioner earned a Bachelor of Arts degree in Interdisciplinary Social Sciences from the University of South Florida awarded in May 1996.

    Petitioner's Request for Screening

    
    

11. On or about February 7, 1995, the District "M," Office of the Judges of Compensation Claims, Judge Joe Willis, entered an Order approving the Petitioner's settlement with her employer, Community Dialysis, and the carrier, Liberty Mutual Insurance Company.

12. Petitioner settled her benefits with Liberty Mutual for

    
    

    $75,000, purportedly pursuant to Section 440.491(6)(b), Florida Statutes (1995). Paragraph 8 of the settlement agreement specifically provided: "The Employee shall also retain the right to apply to the Division of Workers' Compensation for appropriate training and education under Section 440.491(6)(a), Florida Statutes "

13. On or about December 21, 1995, Petitioner submitted a request for screening on form DWC-23 to the Respondent.

14. The Respondent conducted a screening and concluded that Petitioner has transferable skills and therefore it was not necessary to refer Petitioner for a vocational evaluation, nor provide training and education, to return Petitioner to suitable gainful employment.

15. On May 16, 1996, the Petitioner filed a Petition for Hearing. The Petition for Hearing advised that the Petitioner had been accepted by the Stetson University College of Law for the Fall 1996 semester and indicated her desire to pursue a career in law with the assistance of the Workers' Compensation Trust Fund.

    Petitioner's Law Studies

    
    

16. On or about August 1996, Petitioner began to study law at the Stetson University College of Law. Petitioner is currently working towards a Juris Doctor degree.

17. Petitioner has completed two semesters at Stetson University College of Law. The program leading to the Juris Doctor degree consists of five semesters and two summer school sessions.

18. Tuition per semester at Stetson University College of Law is nine-thousand-one-hundred-dollars ($9,100.00), and four- thousand-six-hundred-dollars ($4,600.00) for each summer school session.

19. Stetson University College of law is approved by the American Bar Association, the American Association of Law Schools, and the Southern Association of Colleges and Schools.

20. Petitioner was prohibited by Stetson University College of Law from working during her first year of law school.

21. Petitioner does not intend to work or look for employment while attending Stetson University College of Law.

    Petitioner's Employability and Need for Retraining

    
    

22. Petitioner is forty-seven years old.

    
    

23. Petitioner has transferable skills which would allow her to return to suitable gainful employment in nursing within the physical restrictions resulting from her injury. These skills derive not only from her education (Associate in Applied Science degree in Nursing, and Bachelor of Arts degree in Interdisciplinary Sciences), but also from her work history and previous occupation as a Registered Nurse.

24. The Petitioner does not require additional education at Stetson University College of Law to return to suitable gainful employment. There are nursing positions available within Petitioner's physical restrictions for which Petitioner is qualified.

25. The Petitioner's vocational evaluation and vocational rehabilitation expert, Dr. David Heaston, testified that the Petitioner cannot return to the wages she was earning at the time of her accident without rehabilitation or retraining. Dr. Heaston stated that the maximum salary that the Petitioner could return to without any type of rehabilitation or retraining was approximately

    $28,000 to $30,000.

    
    

26. Dr. Heaston also testified that the Petitioner would be able to work within her physical limitations and restrictions as a sole practicing attorney (or under a similar arrangement so that she could maintain could control over her work environment,

    conditions, and hours). Dr. Heaston testified that, after receiving a Juris Doctor degree at the Stetson University College of Law, the Petitioner would be able to earn approximately $38,000 to $40,000. But that is far from a certainty. Even assuming that a Juris Doctor from Stetson would enable the Petitioner to earn

    $38,000 to $40,000 in the sole practice of law, it is not clear that those dollars could be earned immediately; licensure will take a certain amount of time after graduation, and it is reasonable to believe that it would take additional time after licensure to build such a sole practice. It is not clear that the Petitioner would be able to achieve earnings as high as her earnings at the time of her accident more quickly by completing law school and starting a law career than she would by seeking employment in the nursing field at this time and working to earn promotions and raises.

    CONCLUSIONS OF LAW

    
    

27. The Petitioner has the burden to establish that the Respondent is required to reimburse her for tuition and the reasonable costs of board and lodging for Petitioner's attendance at Stetson University College of Law. 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 249 (Fla. 1st DCA 1977).

    Suitable Gainful Employment

    
    

28. At the time of the Petitioner's injury, Section 440.49(1), Florida Statutes (1991), provided in pertinent part:

    (1) REHABILITATION OF INJURED EMPLOYEES. –

    (a) When an employee has suffered an injury covered by this chapter and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to appropriate training and education. Upon request by the employee, the employer, or the carrier, the division shall provide such injured employee with appropriate training and education for suitable gainful employment. . . . For purposes of this section only, “suitable gainful employment” means employment or self- employment which is reasonably attainable in light of the individual’s age, education, previous occupation, and injury and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his average weekly earnings at the time of injury.

29. Section 44, Chapter 93-415, Laws of Florida (1993), created Section 440.491, Florida Statutes. Section 43 of Chapter 93-415, Laws of Florida, amended Section 440.49(1).

30. Section 440.491(1)(g), Florida Statutes (1995), provides:

    1. DEFINITIONS.- As used in this section, the term:

       * * *

       (g) “Suitable gainful employment” means employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his average weekly earnings at the time of injury.

31. The definition of suitable gainful employment under Section 440.491, Florida Statutes (1995), is substantially the same as under former Section 440.49(1), Florida Statutes (1991). Neither the definition itself nor the purposes of the definition were changed after Petitioner's injury.

32. The Petitioner has argued that "suitable gainful employment" means employment with earnings equal to or greater than her earnings in the job she held at the time of her accident, and nothing less; her argument also is that, unless such employment is available, the Petitioner is entitled to whatever training and education is required to enable her to obtain such employment. The Petitioner's argument is rejected.

33. It is concluded, contrary to the Petitioner's argument, that the Petitioner did not prove her entitlement to additional training and education as being necessary and appropriate to return her to "suitable gainful employment." Specifically, it is not reasonable for the Respondent to expend money to pay for the Petitioner's law school education at Stetson in the hope that she can earn $38,000 to $40,000 a year in a sole practice of law when she graduates, especially when the Petitioner can now earn approximately $28,000 to

    $30,000 a year in the nursing field, with prospects to increase her earnings during the years she would be attending law school and building her sole practice. The latter option fits the statutory definition of "suitable gainful employment."

    Statutory Procedural Changes

    
    

34. While the definition of suitable gainful employment has not changed, the screening procedures used by the Division have.

    Section 440.491(6)(a), Florida Statutes (1995), provides:

    
    

    Upon referral of an injured employee by the carrier, or upon the request of the injured employee, the division shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaluation and, if appropriate, approve training and education or other vocational services for the employee. The division may not approve formal training and education programs unless it determines, after consideration of the reemployment assessment, pertinent reemployment status reviews or reports, and such other relevant factors as it prescribes by rule, that the reemployment plan is likely to result in return to suitable gainful employment. The division is authorized to expend moneys from the Workers' Compensation Trust Fund, established by s. 440.50, to secure appropriate training and education or other vocational services when necessary to satisfy the recommendation of a vocational evaluator. The division shall establish training and education standards pertaining to employee eligibility, course curricula and duration, and associated costs.

35. In the absence of clear legislative intent to the contrary, a law is presumed to operate prospectively. A law will not be applied retroactively to affect substantive rights of the parties. Arrow Air, Inc. vs. Walsh, 645 So. 2d 422, 425 (Fla. 1994); Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994); Walker & LaBerge, Inc. vs. Halligan, 344 So. 2d 239, 241 (Fla. 1977); Hansen vs. State Farm Mutual Automobile Insurance Company, 674 So. 2d 106, 108 (Fla. 1st DCA 1996).

36. Exceptions to the general rule requiring prospective application of statutory changes include changes that are merely procedural or remedial. Procedural or remedial statutes may be applied retrospectively. Alamo, 632 So. 2d at 1358; Halligan,

    344 So. 2d at 243.

37. Certain provisions in former Section 440.49(1) and in Section 440.491 have been held to be procedural. See, e.g., Lockheed Space Operations vs. Langworthy, 686 So. 2d 665, 667 (Fla. 1st DCA 1996)(holding that changes to provisions in Section 440.491(4) were procedural); W.R. Grace & Co. vs. Marshall, 405 So. 2d 444 (Fla. 1st DCA 1981)(holding that changes to provisions in former Section 440.49(1)(c) concerning the obligation to evaluate an employee's ability to achieve suitable gainful employment were procedural). Other provisions in the statute have been held to be substantive. See, e.g., Clay Hyder Trucking Lines vs. Atherton, 450 So. 2d 318 (Fla. 1st DCA 1984)(holding that former Section 440.49(1), which determined responsibility for the cost of rehabilitation, was substantive).

38. It is concluded that the new statutory screening procedures are procedural and may be applied retroactively to the Petitioner.

    Pertinent Rules

    
    

39. Florida Administrative Code Rules Chapter 38F-55 was adopted in July 1996. Parts are clearly procedural, and parts are substantive. But, as detailed infra, even if substantive, the pertinent rules either are the same as the rules they replace, are the same as the applicable statutes, or are clearly intended to apply to the Petitioner's date of accident.

40. Rule 38F-55.009(1), Florida Administrative Code, sets forth the Division Screening Process, and in pertinent part provides:

    1. The screening process shall consist of:

       1. a review of all medical and vocational documentation relevant to the compensable injury to determine whether the injured employee is able to perform the duties of the pre-injury occupation; and

       2. a review of the documentation which supports the payment of temporary partial disability and wage loss benefits to determine the injured employee’s inability to obtain suitable gainful employment because of his injury; and

       3. an interview with the injured employee.

       This rule is clearly procedural and can be applied retroactively to the Petitioner.

41. Rule 38F-55.009, Florida Administrative Code, sets forth eligibility criteria and provides in pertinent part:

    1. Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation:

       . . .

       (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days. . . .

    2. The Division shall not refer the injured employee for a vocational evaluation if the injured employee:

    . . .

    (c) has transferable skills which would allow return to work in suitable gainful employment. (emphasis supplied)

    
    

    Even if substantive, the substance of this rule does not change the definition of "suitable gainful employment" found

    in Section 440.491, Florida Statutes (1995), and former Section 440.49(1), Florida Statutes (1991).

42. Rule 38F-55.001(5), Florida Administrative Code, defines an "education program," in relevant part, to include:

    a formal course of study or a certificate program in a training and education facility, agency or institution operating under chapter 246, Florida Statutes, and subject to the rules of the State Board of Independent Post- secondary Vocational, Technical, Trade and Business Schools as provided by sections 246.201-246.231, Florida Statutes; or any community college established under part III of chapter 240, Florida Statutes; or a career education program as defined by section 228.041(22)(a)3., Florida Statutes; or any formal training course for regulated occupations approved by any state regulatory agency.

    Even if substantive, this rule does not change the import of former Rule 38F-8.021(4), Florida Administrative Code.

43. Former Rule 38F-8.021(4) defined an "education program" in relevant part, to include:

    a formal course of study in a training and education facility, agency or institution approved by one of the Department of Education Regional Coordinating Councils for vocational and adult education programs, or the Board of Independent Post-secondary Vocational, Technical, Trade & Business and any Community College established under part III of chapter 240.

44. Both Rule 38F-55.001(5) and former Rule 38F-8.021(4) limit the definition of an "education program" to vocational or adult education, trade or business schools, and community college programs leading to associate degrees. Neither rule contemplates

    a graduate or professional program at a private college or university such as Stetson University College of Law. Respondent has no express authority to expend funds for a law school education at Stetson.

45. Rule 38F-55.015(3), Florida Administrative Code, provides:

    The maximum cost the Division shall expend for an approved retraining plan shall not exceed 85% of the injured employee's pre- injury average weekly wages as calculated on an annual basis, or $8,000.00 per program, whichever is less . . . .

    
    

    Even if substantive, it is clear that this rule was intended to apply to the Petitioner's date of accident. Rule 38F- 55.015(2)(a), Florida Administrative Code, authorizes expenditures from the Workers’ Compensation Administration Trust Fund for vocational evaluations and retraining only "for dates of accident on or after October 1, 1989 through December 31, 1993"; for dates of accident after January 1, 1994, only reemployment services are authorized. Accordingly, Rule 38F-55.015(3) clearly must have been intended to apply to the Petitioner's date of accident.

46. Rule 38F-55.015(5), Florida Administrative Code, provides:

The Division shall not reimburse or pay for any reemployment services independently initiated or obtained by the injured employee without prior written approval from the Division of the proposed reemployment plan recommending such reemployment services,

including any expenses associated with retraining or education.

This rule is procedural and can be applied retroactively to the Petitioner since she did not begin law school until after the effective date of the rule change. Even assuming that law school expenses could be paid by the Respondent, Rule 38F-55.015(5) would preclude the retroactive reimbursement of the Petitioner's expenses incurred in attending Stetson University College of Law prior to the entry of a final order in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Respondent, the Division of Workers' Compensation, enter a final order denying the Petitioner's request for payment of her expenses incurred in attending the Stetson University College of Law.

RECOMMENDED this 23rd day of October, 1997, at Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1997.

COPIES FURNISHED:

Christopher B. Young, Esquire Riden, Earle and Kiefner, P.A.

100 Second Avenue South Suite 400, North Tower

St. Petersburg, Florida 33701

Michael G. Moore, Esquire Department of Labor and

Employment Security

2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189

Douglas L. Jamerson, Secretary Department of Labor and Employment

Security

303 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Edward A. Dion, General Counsel Department of Labor and Employment

Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002573

Orders for Case No: 96-002573