STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Petitioner, )

)

vs. ) Case No. 98-1768

)

JEFFERSON JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case by videoconference on August 12, 1998. The judge presided from Tallahassee, Florida; the remote video site was in Orlando, Florida.

APPEARANCES

For Petitioner: Jefferson W. Johnson, pro se

4416 South Lake

Orlando, Florida 32808

For Respondent: Michael A. Greif, Esquire

Department of Labor and Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

The issue for determination is whether Mr. Johnson is eligible for vocational rehabilitation services or whether, as proposed by the agency, his file should be closed.

PRELIMINARY STATEMENT

In a letter dated March 4, 1998, Vocational Rehabilitation counselor, Melissa Kirkland, informed Petitioner Jefferson Johnson that his file was being closed. Mr. Johnson requested a fair hearing and the case was referred to the Division of Administrative Hearings for a hearing pursuant to Chapter 120, Florida Statutes.

At the hearing Mr. Johnson testified in his own behalf and submitted two Exhibits, both received into evidence:

Petitioner's Exhibit A is a Division of Vocational Rehabilitation agreement of understanding; Petitioner's Exhibit B is a prior notification of closure dated September 24, 1996.

The Division of Vocational Rehabilitation presented the testimony of Melissa Kirkland and two Exhibits which were received in evidence: Respondent's composite Exhibit no. 1 is a packet of physician's office notes; Exhibit no. 2 is an individual rehabilitation plan.

The transcript was not filed but Petitioner submitted a "Motion for Determination in Accordance with Proposed Recommended Order" and Respondent filed a Proposed Recommended Order.

Respondent's Motion to strike Petitioner's pleading is DENIED, as unnecessary.

FINDINGS OF FACT

1. Jefferson Johnson applied for services from the Division of Vocational Rehabilitation (agency) and on November 13, 1997, executed an "Agreement of Understanding" describing eligibility criteria and various client rights and responsibilities.

2. More specifically, the agreement provides, in pertinent part:

   ELIGIBILITY

   
   

   The Division of Vocational Rehabilitation (DVR) provides employment-related services to those persons who are eligible.

   To be eligible:

   • You must have a physical, mental or emotional impairment that interferes with employment.

   • It must be determined that Vocational Rehabilitation (VR) services will benefit you in becoming employed or in keeping your job.

   • You must require VR services to become or remain employed.

     
     

     YOUR RIGHTS

     
     

     You have the right to:

   • an evaluation to determine if you are eligible for services;

   • written notice if you are determined to be ineligible for services;

   • appeal any decision concerning denial, provision, delivery, or change of service;

   • participate fully in all decisions. YOUR RESPONSIBILITIES

     It is very important that you participate in decisions about your employment.

     Your responsibilities are to:

   • Keep appointments or request in advance that they be changed;

   • participate actively in the planning of your individualized Written Rehabilitation Program (IWRP);

   • cooperate with your counselor in all parts of your rehabilitation;

   • provide all available medical information related to your rehabilitation program.

     
     

     (Petitioner's Exhibit A)

     
     

3. There is no dispute that Petitioner has an impairment that interferes with employment.

4. Melissa Kirkland has a Master's degree in counseling and is experienced in working with individuals with mental and emotional impairments. She was assigned Mr. Johnson's case and reviewed his medical records. She also began working with him on developing an assessment of his work-readiness.

5. Mr. Johnson, who has some paralegal training from Rollins College, desires placement in a legal office that does advocacy for disabled persons. He feels that a lawyer should be able to evaluate his work-readiness.

6. Based on Mr. Johnson's interactions with her and on her review of his medical records, Ms. Kirkland recognizes in her client certain problems common to persons with mental health impairments: hostile or confrontational interactions with others, difficulty concentrating, punctuality problems, and lack of appropriate hygiene. Work-readiness requires that those problems be remediated.

7. The remediation cannot be accomplished in a regular job placement but requires the intervention and involvement of

   skilled counselors and staff. Those counselors are available though the Seminole County Mental Health Center's "job store," a sheltered workshop setting that would provide evaluation and skills training that Mr. Johnson needs before he can benefit from the agency's placement services. The skills that he needs are not related to substantive knowledge in his chosen field or career, but rather are the more basic skills that would enable him to get to work on time, properly groomed, and able to get along with the supervisors and co-workers.

8. The "job store" is the only resource available in

   
   

   Mr. Johnson's geographical area that can provide the assessment and training he needs to become work ready and able to benefit from further vocational rehabilitation services. Mr. Johnson, however, refuses to sign the individualized written rehabilitation plan prepared by Ms. Kirkland and he refuses to participate in the job store even for the few months that Ms.

   Kirkland recommends.

   
   

9. It is this refusal to obtain essential services, and not his profanity over the telephone and in the agency office, that caused Ms. Kirkland to appropriately terminate the agency's services to Mr. Johnson.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569, 120.57(1), and 413.30(6), Florida Statutes.

11. Section 413.30(1), Florida Statutes, provides that an individual is eligible for services if he or she has a disability and requires vocational rehabilitation services to prepare for, enter, and engage in, or retain gainful employment. Section

    413.30 further requires the Division of Vocational Rehabilitation to conduct assessments and evaluations to determine whether an individual may benefit from services and what services are needed.

    
    

12. The assessment and evaluations require some level of cooperation and participation by the client. In this case that cooperation and participation has been refused.

13. Whether Mr. Jefferson, as applicant, or the agency has the burden of proof (see Section 413.30(3), Florida Statutes, regarding "clear and convincing evidence" by the Division) is immaterial in this case. The evidence is clear and convincing that Mr. Jefferson's case is properly terminated until he is willing to participate in the necessary evaluation for services.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

that the agency enter its final order terminating services to Petitioner without prejudice to his right to reapply.

DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.

COPIES FURNISHED:

Michael A. Greif, Senior Attorney Department of Labor and

Employment Security

307 Hartman Building 2012 Capital Circle

Tallahassee, Florida 32399-2189

Jefferson W. Johnson

4416 South Lake Orlando Parkway Orlando, Florida 32808

Douglas I. 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: 98-001768

Orders for Case No: 98-001768