STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SILVIA VALDES, )

)

Petitioner, )

)

vs. ) Case No. 01-3669

)

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF WORKERS' COMPENSATION, ) BUREAU OF REHABILITATION AND ) MEDICAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by telephone in Tallahassee and Fort Lauderdale, Florida, on November 13, 2001.

APPEARANCES

For Petitioner: Silvia Valdes, pro se

4338 Southwest 48th Court

Fort Lauderdale, Florida 33314

For Respondent: Elana J. Jones, Senior Attorney

Department of Labor and Employment Security

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

STATEMENT OF THE ISSUE

The issue is whether Respondent unlawfully determined that the proper way to return Petitioner to suitable gainful

employment is through direct job placement, rather than job retraining.

PRELIMINARY STATEMENT

By letter dated May 2, 2001, Respondent advised Petitioner that it was determining that she was eligible for certain services. By letter dated May 23, 2001, Petitioner disputed certain findings concerning the extent of her disability and reasserted her request for retraining, rather than direct job placement services.

At the hearing, Petitioner called one witness and offered into evidence two exhibits. Respondent called two witnesses and offered into evidence six exhibits. All exhibits were admitted.

The court reporter filed the transcript on December 4, 2001.

FINDINGS OF FACT

1. Petitioner was born on October 3, 1958. She has been a licensed practical nurse in Florida since 1983. On April 7, 1998, while working as a licensed practical nurse, Petitioner slipped on a wet floor at work and sustained injuries to her right elbow, leg, and back.

2. On August 27, 1998, while in transit to a workers' compensation clinic, Petitioner was involved in an automobile accident in which she sustained a cervical strain and sprain. On October 28, 1998, Petitioner was sitting at work, where she

   had been assigned light duty, when her chair rolled out from under her, causing her to fall and sustain injuries to her back and neck. Petitioner has not worked since sustaining these last injuries.

3. A physician determined that Petitioner reached maximum medical improvement on April 10, 2000, at which time she had a

   23 percent permanent impairment to the body as a whole. Among the physician's diagnoses were concussion with memory disturbances and cognitive difficulties. The physician determined that nearly 60 percent of Petitioner's permanent disability was attributable to "cerebral dysfunction." Among the physician's restrictions were avoiding lifting more than 20 pounds and pushing or pulling and limiting walking, standing, bending, and kneeling.

4. Petitioner first contacted Respondent for job retraining services on January 10, 2001. At the conclusion of an orientation sponsored by Respondent on January 24, 2001, Petitioner signed a request for screening.

5. After examining the file, the Respondent's Vocational Rehabilitation Consultant determined that Petitioner could find suitable gainful employment through direct job placement, rather than job retraining. In particular, the consultant relied on Petitioner's transferable skills and work history. After factoring in her restrictions, the consultant determined that

   Petitioner could still earn over half of what she had been earning as a licensed practical nurse prior to her first accident.

6. Petitioner complains of delays in Respondent's processing of her request for job retraining services. However, no such delays existed in this case. Nor can Petitioner legitimately seek reimbursement for accounting courses that she began a mere five days after signing the request for screening. Obviously, she did not pursue this alternative after exhausting her options with Respondent and the services that it offers.

7. A transferable skills analysis reveals that Petitioner could obtain suitable gainful employment by direct job placement in various nursing fields, and possibly also certain accounting fields.

8. Clearly, the better approach to the vocational rehabilitation of Petitioner is direct job placement. If Petitioner is able to find and keep suitable gainful employment, she will have obviated the necessity of considering the extent to which her cognitive difficulties may restrict effective job retraining.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes.

   (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

10. Section 449.491(1)(g) defines "suitable gainful employment" as:

    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 opportunity to restore the individual as soon as practicable and as nearly as possible to his average weekly earnings at the time of injury.

    
    

11. Rule 38F-55.009(7)(c) provides that Respondent may not refer an injured employee for a vocational evaluation if the employee "has transferable skills which would allow return to work in suitable gainful employment." Section 440.491(6)(b) provides that Respondent may order job retraining only if it is necessary to return the injured employee to suitable gainful employment.

12. As an applicant, Petitioner bears the burden of proof.

    
    

    Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

13. Petitioner has failed to prove that job retraining services are necessary to return her to suitable gainful employment.

RECOMMENDATION

It is

RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing Petitioner's request for job retraining services.

DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 11th day of February, 2002.

COPIES FURNISHED:

Mary B. Hooks, Secretary Department of Labor and

Employment Security

The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Elizabeth Teegen, General Counsel Department of Labor and

Employment Security

The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Silvia Valdes

4336 Southwest 48th Court

Fort Lauderdale, Florida 33314

Elana J. Jones, Senior Attorney Department of Labor and

Employment Security

2012 Capital Circle Southeast Suite 307, Hartman Building 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 01-003669

Orders for Case No: 01-003669