STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

U. S. AIRWAYS AND ALEXIS, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-2862

)

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

BUREAU OF REHABILITATION )

AND MEDICAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in the above-style cause was heard by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, pursuant to notice on November 15, 2000, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Patrick John McGinley, Esquire

Robert C. Hand, Esquire

Plye, Jones, Hurley & Hand, P.A. 1069 West Morse Boulevard

Winter Park, Florida 32789

For Respondent: Elana J. Jones, Esquire

Department of Labor and Employment Security

Hartman Building, Suite 307 2012 Capitol Circle, Southeast

Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

Whether the Respondent (the Agency) may assess costs against the Employer, who is denominated the Petitioner in the case, for rehabilitative temporary total disability benefits for an employee who was injured on the job, returned to work for approximately three years, and then was discharged for cause unrelated to his injury?

PRELIMINARY STATEMENT

The Agency advised the Petitioner that it sought rehabilitation temporary total disability benefits for Petitioner’s former employee, who had been injured on the job, returned to work, and was subsequently discharged for cause unrelated to his injury or its limitations upon his job performance. The Petitioner requested a formal hearing, and the matter was referred to the Division of Administrative Hearings. The matter was set for hearing, but continued at the request of the Respondent. After the parties completed discovery, the case was reset for hearing, and hearing was held as noticed.

At the formal hearing, the Richard B. Hall and Lynn Moore testified for the Petitioner. The Petitioner introduced into the record Petitioner’s Exhibits 1 and 2. Mark W. Toigo, Deborah B. Wright, and James A Rutan testified for the Respondent. The Respondent introduced into the record Respondent’s Exhibits 1, 2, 3 and 4.1/ Joint Exhibit 1 (the

Deposition of Dr. Bahri with two exhibits) was also received into the record. One of the two exhibits to the deposition is bound with the deposition transcript and the other is a composite of the doctor’s records that is unbound.

Several issues arose during the hearing which are discussed in the Conclusions of Law. Procedurally, the parties did not agree as to which party had the ultimate burden of proof.

Legally, the Agency indicated that it interpreted the term “suitable” employment to mean employment within any restrictions imposed by a treating physician when an injured employee returns to work. This raised the factual issues of (1) whether the treating physician imposed restrictions, and (2) if so, whether the employee was able to perform the duties assigned or requested an accommodation for his handicap.

A Transcript of the proceedings was filed on December 6, 2000. Both parties filed proposed findings that were read and considered.

FINDINGS OF FACT

1. James Rutan (Rutan) was hired by Piedmont Airlines of Jacksonville on June 4, 1985. The employer changed its name to

   U.S. Airways (US Air) in April 1997. Rutan’s position was a fleet service employee. In this capacity, his duties were varied, but among his duties were loading and unloading baggage and freight from aircraft.

2. On September 25, 1993, Rutan was loading baggage, picked up a heavy bag, pulled it across his chest, and injured his shoulder. He went first to the emergency room, then to Dr. Depadua, and finally to Dr. Fady Bahri, who determined that Rutan had torn his rotator cuff. Dr. Bahri operated on Rutan’s

   shoulder in November 1993, and Rutan returned to light duty with US Air in January 1994. Rutan continued in light-duty status until March 15, 1994.

3. Two contradictory documents were introduced from Dr. Bahri’s office regarding Rutan’s status as of March 15, 1994. One document, sent to the workman’s’ compensation

   insurer, indicates that Dr. Bahri determined Rutan had reached Maximum Medical Improvement (MMI) with a 12 percent impairment rating and physical restrictions of light work, lifting a maximum of 20 pounds, lifting and carry objects weighing up to ten pounds, and no repetitive overhead activities. However, the other document, attached to Dr. Bahri’s deposition, from the US Air file indicates that Rutan was cleared to return to “full duty.” The doctor was unable to explain in his deposition the apparent contradiction in the two determinations.

4. Rutan testified at hearing concerning his injury and its effect upon his work. Rutan loaded and unloaded baggage and freight from aircraft, and that to do so, he crawled into the cargo bay of the aircraft several times each day and either

   stacked bags or boxes, or threw bags or boxes to the person stacking them. This caused him pain, and he took quantities of over-the-counter and prescription pain relievers to cope with the pain and continue working. He did not complain to his supervisor(s) about discomfort from performing his duties or seek an accommodation for his handicap.

5. Rutan's supervisor, Lynn Moore, testified regarding Rutan’s job performance. She was his supervisor for approximately two months. She observed his work during that time, and Rutan performed full duty, lifting everything he needed to lift. During the period Moore was Rutan’s supervisor, Rutan did not make any complaints of pain or complain of an inability to do the work. Rutan did not make any requests for transfers, or make any requests for accommodation for a handicap pursuant to the Americans with Disabilities Act.

6. In the first week of April 1997, US Air terminated Rutan for cause. Although the details were not discussed, the discharge was not related to his previously injury or its impact upon his work.

7. Ms. Moore was familiar with the records of Rutan’s employment, and these records reflected Rutan missed a total of

   90 days of work due to the injury and surgery. The records further reflect he returned to full duty not later than October 16, 1996, and worked in that capacity until his

   discharge. Rutan worked for approximately six months following October 16, 1996, without requesting an accommodation or other relief.

8. Ms. Moore testified regarding the positions available at US Air for persons with Rutan’s experience. There were positions available that would have accommodated Rutan’s limitations.2/

9. Subsequent to his discharge, Rutan had a second surgery on his shoulder on May 11, 1998, that related back to his original injury. Dr. Bahri made another determination of MMI following this surgery on October 1, 1998. Dr. Bahri again determined that there was a 12 percent impairment, but stated that Rutan was able to do medium level work restricted to occasional lifting 21-50 pounds, frequent lifting of 11-20 pounds, and constant lifting of ten pounds with no overhead activities with the right arm or shoulder. These limitations are less restrictive, and permit Rutan to lift more than the limitations originally imposed after the 1993 surgery.

10. At the time of the second surgery, Rutan was a full time student pursuing the profession for which he was "retrained."

11. Subsequent to his second surgery and approximately one year after his discharge for cause, Rutan filed a DWC-23 on

    April 14, 1998 seeking rehabilitation temporary total disability benefits pursuant to Chapter 440, Florida Statutes.

12. The Agency interviewed Rutan, and was aware of his work history, injury, and discharge for cause unrelated to his injury.

13. Because he had been terminated before his presented his application, and was already approved for tuition benefits and enrolled in college, Rutan’s application was handled differently than a person who was employed by an employer. The employer was not required to sign the DWC-23, and Rutan was sent directly to Mark W. Toigo for vocational evaluation.

14. Mr. Toigo’s evaluation of Rutan’s potential for finding employment without retraining was consistent with the standards for such evaluations and the Agency’s rules. Tiogo concluded that Rutan needed to be retrained. His conclusion was based upon two primary determinations: his determination Rutan physically could not perform the work required to work in his old job which was based upon the documentation provided to the workman's compensation insurer, and his determination that Rutan could not make the amount of money he made in his old job without retraining.

15. The first of these determinations is not supported by the facts presented at hearing. There is documentation that Rutan was returned to full duty, which implicitly is without

    restriction or limitation. If we assume that Rutan was not returned to full duty by Dr. Bahri after his first surgery, the facts reveal Rutan had performed the duties of his prior job under restrictions that were more stringent than those imposed after his second surgery without complaint or requests for accommodation.

16. Mr. Tiogo did not consider the impact of Rutan’s termination for cause because the Agency’s position was Rutan could not physically perform the duties of his employment; therefore, the job was not and had never been suitable.

17. Ms. Moore and Mr. Richard Hall testified that US Air had positions available in the same pay range as Rutan’s that did not require lifting of the type precluded by Dr. Bahri. Had Rutan not been discharged for cause and had he requested an accommodation due to his physical limitations, US Air would have been legally required to and able to accommodate his needs.

    CONCLUSIONS OF LAW

    
    

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

19. Section 440.491(6)(a), Florida Statutes, provides:

    
    

    (6) TRAINING AND EDUCATION

    
    

    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 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 Administration 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.

    
    

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

    
    

    (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.

    
    

21. The Agency argues that the ultimate burden of proof is upon the employer. The Agency seeks to assess rehabilitation temporary total disability benefits from Petitioner on the basis that the employee/trainee could not obtain suitable, gainful employment after his injury although the Agency acknowledges

    that the employee returned to work after his injury, worked in his prior position for nearly three years, and was discharged for cause unrelated to his injury or job performance related to the injury. In this case, the Agency is the party seeking to alter the status quo. The ultimate burden of proof is upon the Agency. This is consistent with the provisions of Chapter 120 and Chapter 440, Florida Statutes. See Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

22. Further, in this case, the Agency bases its determination that the employer is liable for these costs on the Agency's interpretation that, although the employee returned to work, the job was not suitable because it required the employee to perform tasks which were beyond the medical restrictions imposed by the employee’s physician. The Agency has a specific burden to show those facts that establish the predicate for assessing these costs because, on the face of it, the facts would not support a finding that the employer had to provide the subject benefits. In the absence of showing that there were medical limitations imposed by the treating physician that the employer did not honor, the Agency would fail in its burden. When the Agency presents evidence that there were limitations and the employer did not accommodate the employee, the burden shifts to the employer.

23. In this case, the Agency presented evidence that raised the issues of medical limitations having been imposed by the treating physician and the employee not being accommodated. The Petitioner showed that the employee returned to work after his injury, worked for over 90 consecutive workdays, and performed the duties of that employment until his discharge for cause. The Petitioner introduced evidence that cast doubt whether the employee was released to work with any limitations. Assuming there were limitations, the Petitioner introduced evidence that showed that the employee worked without complaint or request for accommodation, and that, had accommodation been requested, the Employer could have provided the necessary relief.3/

24. In sum, the evidence presented by the Petitioner establishes that the employment was “suitable” under the Agency’s interpretation of the Section 440.491(1)(g), Florida Statutes.

25. Rule 38F-55.009(5)(c), Florida Administrative Code, provides that the Agency should not provide re-employment services and assistance when “the injured employee has returned to and maintained suitable, gainful employment for at least 90 days.”

26. Having concluded that the duties of the position were suitable, and there being evidence that he returned to and

    maintained suitable, gainful employment for at least 90 days, the Agency should not have provided assistance.

27. The Agency does not have a basis to assess rehabilitation temporary total disability benefits for retraining the employee when the employee returns to work under the facts presented in this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Department enter its Final Order dismissing the administrative complaint seeking reimbursement for rehabilitation temporary total disability benefits from the Employer/Petitioner.

DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001.

ENDNOTES

1/ It is not clear from the transcript that Respondent’s Exhibit 3 was received; however, both the parties reflect it was received in their proposals and my notes reflect it was received. The transcript reflects Exhibit 4 was received over objection at page 154-156, although the transcript does not list it in the Respondent’s list of exhibits.

2/ US Air would have been legally obligated to accommodate Rutan’s handicaps, as would other potential employers, pursuant to the Americans with Disabilities Act.

3/ In this case, which arose before the full impact of the Americans with Disabilities Act, there may have been some confusion regarding the duties of the employer to provide accommodation or the employee to request accommodation. However, it seems clear at this point that the issues raised in the matter would be mooted by that legislation which would have required the employee to request the accommodation and the employer to provide it. The failure to do so would have been independently actionable, and the employer would have been directed to provide accommodation for the employee’s handicap. The employee would have been maintained in his employment until discharged for matters unrelated to the injury/handicap. At that point, the employee would be ineligible for benefits because, but for misconduct, the employee would have suitable, gainful employment.

COPIES FURNISHED:

Patrick John McGinley, Esquire Robert C. Hand, Esquire

Plye, Jones, Hurley & Hand, P.A. 1069 West Morse Boulevard Winter Park, Florida 32789

Elana J. Jones, Esquire Department of Labor and Employment Security

Hartman Building, Suite 307 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

Mary B. Hooks, Secretary Department of Labor and

Employment Security Hartman Building, Suite 303

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

Sherri Wilkes-Cape, General Counsel Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

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: 99-002862

Orders for Case No: 99-002862