STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNIE L. GIBBS, )

)

Petitioner, )

)

vs. ) Case No. 02-2314

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on August 22, 2002, with the Petitioner appearing from Fort Lauderdale, Florida, before

J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings. The Respondent participated from Tallahassee, Florida.

APPEARANCES

For Petitioner: Annie Gibbs, pro se

10351 Quito Street

Cooper City, Florida 33026-4519

For Respondent: Larry D. Scott, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to back- date her disability retirement date as requested.

PRELIMINARY STATEMENT

On May 3, 2002, the Department of Management Services, Division of Retirement (Respondent or Department), issued a notice that advised the Petitioner, Annie L. Gibbs, that her request to backdate a disability retirement date had been denied. The notice provided that Petitioner was entitled to appeal the decision of the Department. The Petitioner filed a request for a hearing on June 3, 2002. The Department has not challenged the timeliness of such request. The matter was then forwarded to the Division of Administrative Hearings for formal proceedings on June 12, 2002.

At the hearing, the Petitioner testified on her own behalf and offered the testimony of her son-in-law, James Washington. Mark Sadler testified on behalf the Department. The Respondent's Exhibits 1-8 were admitted into evidence.

A transcript of the proceedings has not been filed.

The Respondent filed a Proposed Recommended Order that has been considered in the preparation of this order.

FINDINGS OF FACT

1. At all times material to the findings of this case, the Petitioner, Annie L. Gibbs, was a member of the Florida Retirement System (FRS).

2. In 1995 the Petitioner was injured and unable to work for a period of time. Although she did return to work

   for an unknown period, she was unable to continue. The Petitioner seeks retirement benefits from November of 1995, the date from which she initially filed an application for benefits. She has not received benefits for the years 1996 and 1997.

3. The Department acknowledges that it received Petitioner's application for disability retirement on or about November 30, 1995. In response, the Respondent sent Petitioner requests for additional information in order for the application to be completed. The first of these requests was directed to Petitioner on December 8, 1995.

4. The Petitioner never submitted responses to the requests for additional information. Physician reports were required in order to confirm the Petitioner's medical condition. The Petitioner did not submit the forms. On January 26, 1996, the Respondent submitted a follow-up letter again noting that the information was needed to complete the Petitioner's application for benefits.

5. The Petitioner maintains that she provided the forms to her physician(s) and that she could not compel them to submit the forms. For whatever reason, the forms were not tendered to the Department. Without the forms the Respondent could not approve the Petitioner's request for benefits.

6. The Department sent a third notice to the Petitioner requesting the information on April 26, 1996.

7. Additional notices were sent to the Petitioner.

   
   

   All notices went to the Petitioner's address of record where she has continuously resided since the outset of this issue. The Department maintains copies of the certified mail receipts indicating the Petitioner signed for the notices requesting additional information. The Petitioner does not dispute that the Department sent the notices. Moreover, the Petitioner does not dispute that she received such notices although she may not remember them.

8. The Petitioner maintains that her mental state during the period of time the notices were provided was such that she was not functioning properly to adequately protect her interests in this matter. Why family members or others were unable to address this matter is unknown.

9. The Department is required by law to follow specific guidelines in the processing of claims for disability retirement. It has followed all such procedures in this cause.

10. The Petitioner submitted a second application for disability retirement on September 30, 1998. Thereafter the Petitioner was approved for benefits and such payments began in October 1998. In conjunction with the second

    application, the Petitioner submitted all forms required by the Department to process and approve the request.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

12. The Department is authorized to administer the provisions of law governing the FRS. Statutes governing the FRS are found in Chapter 121, Florida Statutes. Such Chapter authorizes the Department to promulgate rules governing the application process for benefits through the FRS.

13. Pertinent to this case is Rule 60S-4.0035(4), Florida Administrative Code. Such Rule provides that information not timely submitted by an applicant for benefits may result in the cancellation of the application. Further, when an initial application is cancelled, the Department may require (as it did in the instant case) the applicant to reapply for benefits. When a reapplication is made the date of benefits is computed from the date such application is fully completed. That is exactly what the Department did in the instant case.

14. As the party asserting the affirmative of the issue, the Petitioner bears the burden of proof in this

cause to establish that her application for benefits should have been processed based upon the earlier date of November 1995. See McDonald v. Department of Professional Regulation, Board of Pilot Commissioners, 582 So. 2d 660, 670 (Fla. 1st DCA 1991). The Petitioner has failed to meet that burden. To the contrary, the Department established it met all requirements of the rules. The Department provided notices requesting additional information, the Petitioner did not submit the information requested, but, when Petitioner eventually completed the reapplication process, benefits were timely provided.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying the Petitioner's request to backdate the application for benefits.

DONE AND ENTERED this 18th day of September, 2002, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH 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 18th day of September, 2002.

COPIES FURNISHED:

Erin Sjostrom, Director Division of Retirement

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Monesia Taylor Brown, Acting General Counsel Department of Management Services

Division of Retirement 4050 Esplanade Way

Tallahassee, Florida 32399-1560

Annie L. Gibbs 10351 Quito Street

Cooper City, Florida 33026-4519

Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

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: 02-002314

Orders for Case No: 02-002314