vs. ) Case No. 04-0893
Respondent. )
Upon due notice, a disputed-fact hearing was held in this case by telephonic conference call on June 14, 2004, between Tallahassee and DeLand, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of
Administrative Hearings.
For Respondent: Thomas E. White, Esquire
Whether Petitioner is entitled to "in line of duty" death benefits from the Florida Retirement System (FRS).
Petitioner's husband, Donald Shackelford, died on June 9, 1979. At the time of his death, Mr. Shackelford was a member of FRS and was employed as a Volusia County Deputy Sheriff.
Petitioner made no claim on FRS in 1979, but did so in 2003. By a letter dated November 17, 2003, the Department of Management Services, Division of Retirement, (Division of Retirement) denied Petitioner's request for "in line of duty" death benefits on Mr. Shackelford's FRS account.
The parties are agreed that the Division of Retirement's November 17, 2003, letter is the proposed final Agency action which created a new window of opportunity to request a disputed- fact hearing, pursuant to Sections 120.569 and 120.57 (1), Florida Statutes. The parties are also agreed that Petitioner timely challenged the Division of Retirement's determination.
The case was referred to the Division of Administrative Hearings on or about March 17, 2004.
At the disputed-fact hearing, Petitioner testified on her own behalf and presented the oral testimony of Jim Gambino.
Petitioner's Exhibits P-1 through P-4, and P-7 were admitted in evidence. Respondent presented the oral testimony of Stanley Colvin, Benefits Administrator with the Division of Retirement, and Diane Nash, formerly with the Volusia County Human
Resources/Personnel Office. Respondent had Exhibits R-1 through R-20 and R-23 admitted in evidence.
Official recognition was taken of Sections 121.021(14) and 121.091(9), Florida Statutes (1979), and Florida Administrative Code Rules 22B-4.08 (1979), 22B-6.01(14) (1977); and 22B- 6.01(16) (1979).
No Transcript was provided.
Both parties have timely submitted Proposed Recommended Orders, each of which have been considered in preparation of this Recommended Order.
In assessing whether or not a death was "in line of duty," the Division of Retirement, in 1979, regularly relied upon the certificate of death; the Workers' Compensation First Report of Injury; the autopsy report, if there was one; any investigative reports or statements made by witnesses; and the final determination of the Workers' Compensation agency. Other items were also required, but if the Division of Retirement would have relied on this type of information then, which it would have, and if FRS requested and considered this type of information in denying Petitioner’s claim in 2003, which it did, it is appropriate that all of these sources also be considered in this proceeding, even without predicate, as to their internal hearsay statements. Where available, those items have been
considered in this proceeding. This methodology is also approved and codified in Section 121.021(14), Florida Statutes. See the Conclusions of Law. That said, no single document is determinative of the issue of entitlement.
On June 9, 1979, Donald Shackelford was a Volusia County Sheriff's Deputy and a member of FRS, with approximately one year of creditable service.
On June 9, 1979, Deputy Shackelford was 36 years old.
He passed away in his sleep at approximately 3:30 a.m., several hours after leaving work.
The Workers' Compensation First Report of Injury on Deputy Shackelford was prepared by the decedent's supervising sergeant. It relates that Deputy Shackelford had stated at 1:19 a.m., on June 9, 1979, that he was not feeling well; was having cold chills; and was experiencing passing numbness in his hands. The Report states that those "injuries" were reported by Deputy Shackelford at 1:12 a.m., and that at 12:05 a.m., the deceased had been on duty and involved in a fight while arresting a suspect.
There is no dispute that Deputy Shackelford was relieved of duty and went home before the end of his regularly scheduled shift on June 9, 1979.
At the time of his death, Petitioner was married to Deputy Shackelford. Petitioner testified that when Deputy
Shackelford arrived home early on June 9, 1979, he told her he had received a blow to the chest during a fight/arrest while on duty earlier in the evening. She believed that this blow caused his death.
Deputy Shackelford had driven himself home in a patrol car, which he was required to keep at his residence even when he was off-duty. He also was required to be “on-call” 24 hours a day. However, he was not "on duty" at the time of his death.
Later on June 9, 1979, an autopsy was performed by Dr.
Schildeker, M.D., with the final diagnosis being:
[T]hrombosis, right coronary artery, recent; myocardial infarct [infarction], early posterior left ventricle and septum; artherosclerosis, calcification coronary artery, severe; dilation right heart, moderate; pulmonary edema, acute. (R-15).
The autopsy report also notes that there were bite marks (presumably from the resisting arrestee the night before) on Deputy Shackelford's arm, and lividity to the left side and lower portion of his face, neck, and upper shoulders. It does not note any bruising to his chest. (R-15).
The autopsy report also reveals that ". . . in the coronary artery, approximately 4 centimeters from the point of origin there is an acute antemortem [before death] thrombosis which is completely occluding the lumen of the vessel."
A current medical dictionary defines "thrombosis" as the formation of a blood clot in a vein or artery.
Without expert medical testimony, the undersigned cannot determine if the "lividity" described in the autopsy report is bruising that occurred while Deputy Shackelford was alive or if it was postmortem lividity, which is the after-death settling of blood caused by the position of a body.
However, the autopsy report also states:
Careful examination of the body reveals no wounds or injuries that are contributory to the death. (R-15).
The certificate of death form was also signed by Dr.
Schildeker, M.D., on June 18, 1979. The form allows its signator to choose between "(Probably) accident, suicide or homicide, or undetermined." Deputy Shackelford’s certificate of death specifies "natural," on this blank. It also states under "Describe How Injury Occurred," the words, "Had coronary while making arrest." The "causes of death” listed on the certificate were, in order of descending immediacy:
immediate cause: myocardial infarct [infarction], posterior;
due to or as a consequence of: thrombosis, right coronary artery; and
due to or as a consequence of: ASHD [artherosclerotic heart disease (R-7)].
Petitioner was represented by a lawyer for her workers' compensation claim. On June 29, 1979, she began to receive workers' compensation death benefits from Volusia County. The
County was self-insured for workers' compensation purposes under Chapter 440, Florida Statutes. (P-3 and P-4).
On July 27, 1979, the National Sheriffs' Association denied that Deputy Shackelford’s death was covered by its accidental death and dismemberment policy, because the death had been ruled "natural." (R-23).
Within a month of Deputy Shackelford's death, Petitioner and their children relocated to Virginia Beach, Virginia. At the time of this relocation, Petitioner definitely provided forwarding information to her lawyer and possibly to Volusia County.
On September 10, 1979, after being notified of Deputy Shackelford's death, the Division of Retirement sent a letter to the Volusia County Personnel Office, outlining the requirements for survivors, in this case Petitioner, to claim FRS benefits as a result of Deputy Shackelford’s death. (R-3).
In 1979, the Volusia County Personnel Office's procedure would have been to forward the Division of Retirement information concerning the FRS claim requirements and the application to the surviving spouse at the spouse’s last known address. However, it cannot be verified whether or not the Division of Retirement's information was forwarded to Petitioner.
Petitioner testified credibly that she never received the Division of Retirement's information from Volusia County.
Petitioner subsequently remarried in 1980.
On October 26, 2000, the United States Justice Department denied Petitioner benefits pursuant to the Public Safety Officers' Benefits Act, 42 U.S.C. § 3796 (PSOB), because the decedent's certificate of death suggested death was from a heart attack, and the cause of death was listed as "natural." The definition of "personal injury sustained in the line of duty" under that Act requires that the claimant demonstrate "that a traumatic injury was a substantial factor in the public safety officer's death." (P-7).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Herein, the duty to go forward and the burden of proof by a preponderance of the evidence is upon Petitioner.
See § 120.57(1)(j) and (k), Fla. Stat. (2000); Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981); Ballino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); and
Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).
FRS is codified in Chapter 121, Florida Statutes.
Section 121.051, Florida Statutes (1999), provides for compulsory participation in FRS for all employees hired after December 1, 1970. Section 121.021(11), Florida Statutes (1999), defines an employee as any person receiving salary payments for work performed in a regularly established position and, if employed by a city or special district, employed in a covered group.
It is undisputed that Mr. Shackelford was employed by Volusia County under the foregoing requirements.
Section 121.021(14), Florida Statutes (1979), provided:
"Death in line of duty" means death arising out and in the actual performance of duty required by a member's employment during his or her regularly scheduled working hours or irregular working hours as required by the employer. The administrator may require such proof as he deems necessary as to the time, date, and cause of death, including evidence from any available witnesses. Workers' compensation records under the provisions of Chapter 440 may also be used. (Emphasis supplied).
Section 121.091(7), Florida Statutes (1979), provided for death benefits, in relevant part, as follows:
(c)1. The surviving spouse of any member killed in the line of duty may receive a monthly pension equal to one half of the monthly salary being received by the member at the time of death for the rest of the
surviving spouse's lifetime, unless said spouse remarries, in which case the pension shall terminate on the date of remarriage; or in lieu of the above, the surviving spouse may elect to receive the benefit provided in paragraph (b) of this subsection.
Petitioner asserts that the Division is bound to pay her FRS in line of duty benefits because she received workers' compensation benefits. More technically, she asserts that FRS is bound by a determination, pursuant to Chapter 440, Florida Statutes. She further urges that the fact that the decedent was on-call while off-duty makes a difference in the interpretation of the law.
The statutory provision that workers' compensation records may be considered as part of the proof in this type of case does not mean that such records are determinative of Petitioner's entitlement to the FRS benefits sought or that the legal test for entitlement to the FRS in-line-of-duty benefits is the same as the test for workers' compensation death benefits under Chapter 440, Florida Statutes. See Division of Retirement
v. Allen, 395 So. 2d 1192 (Fla. 1st DCA 1981).
The denial of benefits under a "death and dismemberment" policy also is not binding for this instant case.
Likewise, the denial of benefits under PSOB is not binding for this instant case, but just as the test for entitlement to "in line of duty" benefits under PSOB differs
from the workers' compensation test of "death arising out of and in the course of employment," so does the FRS test differ.
The test for causation is different under Section 121.021, Florida Statutes (1979), than it is pursuant to Chapter 440, Florida Statutes, as demonstrated in Walker v. Division of
Retirement, 360 So. 2d 1291 (Fla. 1st DCA 1978). In that case, the court found that "while 'in the actual performance of duty,' like 'in the course of employment,' is a test concerned with the time, place, and circumstances in which the injury or death occurred, those two tests are not identical."
The Walker Court went on to say, "We do not conceive that the phrase 'in the actual performance of duty' can reasonably be read to embrace the policeman's exception to the going and coming rule, established by decisions under the workmen's compensation law. E.G. Warg v. City of Miami Springs, 249 So. 2d 3 (Fla. 1971)."
On the other hand, Warg has been superseded by statute, see City of Ft. Lauderdale v. Abrams, 561 So. 2d 1294 (Fla. 1st DCA 1990).
More importantly, and to the point, even where law enforcement officers are not concerned, under current judicial interpretations of Chapter 440, heart attacks are more often "covered" by workers' compensation than they were in earlier years. Today, under Chapter 440, Florida Statutes, heart
attacks which occur subsequent to unusual or discernable on-the- job events, which events are considered "precipitating events" by the medical profession, are often entitled to workers’ compensation benefits. Also, heart attacks which occur after a documented period of unusual physical or emotional stress, which stress is clearly a term or condition of employment, are often compensated by workers' compensation benefits.
A similar trend has evolved in FRS cases. Many FRS cases, such as this one, brought under Section 121.021(14), Florida Statutes, have determined that situations similar to the instant one are compensable under this statute, if there is proof of an acute stressful incident or of prolonged chronic stress as precipitating factors in the FRS employee's death.
See Division of Retirement v. Putnam, 386 So. 2d 824 (Fla. 1st DCA 1980); Division of Retirement v. Allen, supra; and Tingler v. City of Tampa, 400 So .2d 146 (Fla. 2d DCA 1981). Cf.--
Clemmons v. Division of Retirement, DOAH Case 91-2479 (RO: August 25, 1992; FO: October 1, 1992).
However, even under that line of FRS cases, there must be some medical evidence that the deceased employee’s job duties actually caused his or her death. See § 121.021(14), Fla. Stat. Here, no such expert evidence has been presented with regard to Deputy Shackelford's death.
It is of concern that the same physician apparently reached different conclusions on the autopsy report and on the certificate of death. That situation works against Petitioner's theory of the case. If there were clear medical evidence supporting a "trigger effect" of the street arrest and stating that Deputy Shackelford could have lived for years with his medical condition but for that trigger effect, Petitioner should prevail. However, such medical evidence is not present here, and so, Petitioner has not borne her burden of proof.
No qualified expert medical evidence has been presented which clearly attributes Deputy Shackelford's death to any specific accidental or intentional incident in connection with his employment, nor has there even been any medical testimony that attributes his thrombosis, myocardial infarction, artherosclerosis, artery calcification, or heart dilation to his employment.
Likewise, no case law has been presented which equates an employment requirement that deputies keep a patrol car at home in preparation for potential emergency calls with "regularly scheduled working hours" or with "irregular working hours as required by the employer."
For the foregoing reasons, which amount to there being no proof of death occurring "in the actual performance of duty," Petitioner's case must fail.
RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for “in line of duty” death benefits.
DONE AND ENTERED this 6th day of August, 2004, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2004.
Thomas E. Wright, Esquire Department of Management Services Division of Retirement
Alberto Dominguez, Esquire Department of Management Services Division of Retirement
Sarabeth Snuggs, Interim Director Department of Management Services Division of Retirement
Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
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.
