STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCIS A. BUSTARD, IV, )

)

Petitioner, )

)

vs. ) Case No. 98-4105

) DEPARTMENT OF LABOR AND EMPLOYMENT ) SECURITY, DIVISION OF COMPENSATION, ) BUREAU OF REHABILITATION AND )

MEDICAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing on January 22, 1999, and on February 1, 2000, in Lakeland, Florida.

APPEARANCES

For Petitioner: Geoffrey Bichler, Esquire

Geoffrey Bichler, P.A.

533 West New England Avenue, Suite C Winter Park, Florida 32789

For Respondent: Nancy Staff Slayden, Esquire

Department of Labor and Employment Security 2012 Capital Circle, Southeast

Suite 307, Hartman Building Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

Is Petitioner eligible for Respondent sponsored retraining?

PRELIMINARY STATEMENT

By letter dated August 5, 1998, Respondent advised Petitioner that he was not eligible for reemployment services because he had worked at "Suitable Gainful Employment" for more than 90 days after his workers’ compensation accident. By letter dated August 17, 1998, Petitioner advised Respondent that he disagreed with its decision and requested a formal administrative hearing.

The initial hearing was scheduled for January 22, 1999.

However, at the beginning of the hearing the parties agreed to continue this matter because the issue in this case was presently before another forum, and the resolution in that case could resolve the issue in this case. The matter was continued with the parties required to file a status report every 90 days until the matter was settled or rescheduled for hearing. Subsequently, an order was entered in the other case but that order did not resolve the issue in this case. Therefore, this matter was rescheduled for hearing on February 1, 2000.

At the hearing, Petitioner testified on his behalf but did not present any other witness. Petitioner’s Composite Exhibit numbered 1 was admitted in evidence. The depositions of John P. Barrett, Jr., M.D. taken October 21, 1998; Jeanne M. McGregor, M.D., M.P.H. taken October 29, 1998; and Petitioner’s Exhibits numbered 2 and 3, respectively, were admitted in evidence. The

deposition of Thomas F. Winters, Jr., M.D. taken on May 29, 1996; the deposition of Thomas F. Winters, Jr., M.D. taken on

October 27, 1998; and the deposition of Francis A. Bustard, IV taken on November 30, 1998, Respondent’s Exhibits numbered 1 through 3, respectively, were admitted in evidence. Joint Exhibit 1 was admitted in evidence.

A Transcript of the January 22, 1999, hearing was received by the Division on February 16, 2000. A Transcript of the February 1, 2000, hearing was received by the Division on February 11, 2000. On an unopposed Motion for Extension of Time to File Proposed Recommended Order, the parties were granted an extension of time to file their proposed recommended orders with the understanding that any time constraint imposed under Rule 28- 1.06.216(1), Florida Administrative Code, was waived in accordance with Rule 28-1.06.216(2), Florida Administrative Code. The parties filed their Proposed Recommended Orders under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Petitioner sustained a workers’ compensation injury (injury) to his right knee on November 26, 1989, while working for the Polk County Fire Department (Fire Department), as a firefighter.

2. Following the injury, Petitioner received authorized medical care at the expense of his employer, which included surgery, followed by approximately one year of physical rehabilitation.

3. After completing approximately one year of physical rehabilitation and light duty work, Petitioner was returned to full duty work with the Fire Department in January 1991. Petitioner continued to experience problems with his right knee, including pain and swelling. However, Petitioner continued on full time duty receiving medical care for his knee.

4. Petitioner’s right knee remained problematic and required regular medical attention between 1990 and 1996.

5. In January 1996, Thomas F. Winters, Jr., M.D. performed a second surgical procedure on Petitioner’s right knee. Following the second surgical procedure, Dr. Winters provided conservative treatment for a brief period before releasing Petitioner to full duty on March 9, 1996, without any restrictions. On March 12, 1996, Dr. Winters placed Petitioner at maximum medical improvement (MMI). Dr. Winters is of the

   opinion that Petitioner had some degenerative changes to his knee but that those changes were related to a previous arthritic problem, not to the workman’s compensation injury; and if Petitioner was performing full firefighter duties before the injury then he could perform those duties after March 9, 1996.

   However, based on the opinions expressed by Dr. Barrett, and

   Dr. McGregor, Dr. Croft, it appears that Dr. Winters did not properly take into account Petitioner’s continued problem with his knee when Dr. Winters found Petitioner at MMI and put Petitioner on full firefighter’s duty.

6. At the time of his release by Dr. Winters on

   
   

   March 9, 1996, and placed at MMI, Petitioner’s knee was so weak that he could not climb stairs or climb ladders or lift anything with any degree of certainty and Petitioner did not feel himself capable of safely performing the full duties of a firefighter.

7. Because of his knee, Petitioner did not return to full duty as a firefighter but instead requested another medical opinion. Petitioner was authorized to see Carl L. Croft, M.D. for a second opinion. Dr. Croft agreed that Petitioner could not perform full duty as a firefighter and recommended that he receive further physical therapy. This physical therapy was never authorized.

8. Petitioner did not return to full duty as a firefighter following Dr. Winters’ release. Instead, Petitioner requested the additional care recommended by Dr. Croft. This additional care was never authorized.

9. Ultimately, Petitioner exhausted his sick leave and vacation time and was forced to return to work in May 1996.

10. Upon his return to work in May 1996, Petitioner advised his employer of his continued concerns as they related to his knee and his inability to perform the essential functions of a

    firefighter. At this point, Petitioner’s employer changed Petitioner’s work duties and he was not functioning as a firefighter. Because of Petitioner’s physical limitations on performing full firefighter duties his employment could not be considered "suitable gainful employment" as that term is defined in Section 440.491(1)(g), Florida Statutes.

11. Petitioner was placed on administrative leave in October 1996, and remained on administrative leave until his termination for cause on January 17, 1997.

12. At the time of termination, Petitioner’s right knee continued to be problematic. Petitioner sought retraining through Respondent and was approved for retraining on July 14, 1998. However, the Fire Department and its insurance carrier objected on the basis that Petitioner had returned to work for 90 days or more after the injury and therefore, retraining was precluded by rule. After a reevaluation, the Respondent determined that Petitioner had worked more than 90 days after being released by Dr. Winters to return to full-time work and, additionally, had worked more than 90 days after Dr. Winters had determined that Petitioner had reached MMI. Therefore, Petitioner was denied retraining on the basis that retraining was precluded by rule. Thereafter, Respondent’s initial decision to grant retraining was revoked and retraining denied by letter dated August 5, 1998.

13. Petitioner worked full-time for more than 90 days after his injury when he was returned to full firefighter’s duty by Dr. Winters in January 1991, and when he returned to work after Dr. Winters had determined that Petitioner had reached MMI on March 12, 1996. However, neither of these periods of employment

    could be considered as "suitable gainful employment" as that term is defined in Section 440.491(1)(g), Florida Statutes.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

15. Section 440.491(6)(a), Florida Statutes, provides in pertinent part as follows:

    (6) TRAINING AND EDUCATION.-

    (a) Upon referral of an injured employee by the carrier, or upon the request of an 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 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. . . .

16. Section 440.491(1)(g), Florida Statutes, provides as follows:

    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 or her average weekly earnings at the time of injury.

       
       

17. Rule 38F-55.009(5)(c), Florida Administrative Code, provides as follows:

    (5) 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; . . .

    
    

18. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, Petitioner must establish facts upon which his allegations for entitlement to retraining are based by a preponderance of the evidence. See Department of Banking and finance, Division of Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932 (Fla. 1996) and Section 120.57(1)(j), Florida Statutes (1999).

19. There is no question but that Petitioner worked more that 90 days after the injury and even more than 90 days after Dr. Winters determined that Petitioner had reached maximum medical improvement. However, Petitioner contends that because of the injury he was not capable of performing his old job as a firefighter and therefore, the offer of full duty work by the fire department and Petitioner’s acceptance of such employment

cannot be considered as "suitable gainful employment." Clearly, Petitioner’s return to work cannot be considered as returning to "suitable gainful employment." Therefore, Rule 38F-55.009(5)(c), Florida Administrative Code, does not preclude retraining for Petitioner. Petitioner has met his burden to show entitlement to retraining.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order granting Petitioner’s request for retraining.

DONE AND ENTERED this 24th of May, 2000, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May 2000.

COPIES FURNISHED:

Mary Hooks, Secretary

Department of Labor and Employment Security

303 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Geoffrey Bichler, Esquire Geoffrey Bichler, P.A.

533 West New England Avenue, Suite C Winter Park, Florida 32789

Nancy Staff Slayden, Esquire

Department of Labor and Employment Security Suite 307, Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 98-004105

Orders for Case No: 98-004105