The Issue May Petitioner make an application with Respondent for disability retirement benefits when he was already applied for and has received regular retirement payments?
Findings Of Fact Mr. Vernon Taylor Bell voluntarily terminated his employment with the Department of Legal Affairs on February 26, 1980. By that date he had accumulated 23.66 years of service for credit in the Florida Retirement System. After his termination Mr. Bell had a conference with a retirement benefits specialist, Ms. Taylor, who is an employee of Respondent. At Mr. Bell's request she gave him an estimate of his retirement benefits for a regular retirement. She did not discuss the benefits which a disabled retiree might receive. The testimony of Ms. Taylor and Mr. Bell is in conflict on whether or not she discussed disability retirement benefits with him. Ms. Taylor's testimony is accepted as being more credible because Mr. Bell was shown throughout his testimony to have a poor memory. Mr. Bell began to receive regular retirement benefits in the monthly amounts of $178.32 on May 30, 1980. Since that date he has continued to receive and accept regular retirement payments. Petitioner has cashed or deposited his first benefit check. If Mr. Bell were to be granted disability retirement benefits rather than regular retirement benefits, his monthly payment would be substantially increased. Petitioner did not present credible evidence that he was misinformed or mislead by Respondent about the relative advantages to him in electing to apply for regular retirement as opposed to applying for disability benefits. On August 26, 1980, Mr. Bell wrote a letter to Mr. Andrew M. McMullian III, who is the State Retirement Director. Mr. Bell stated that he had been given incorrect information about the disability benefits he might be eligible for. He requested that he be allowed to make an application as a disabled retiree. On October 1, 1980, Mr. McMullian responded to Mr. Bell in a letter which states in part: We have reviewed your retirement account and have determined the information provided to you by this office was correct regarding your retirement eligibility. We regret if there was any misunderstanding on your part re- garding disability retirement; however, we cannot honor your request to be retired with disability at this late date, because you applied for regular retirement which was approved for you effective April 1, 1980. Your initial monthly benefit was $178.32 and your July 1980 benefit payment contained a cost-of-living increase, thus your current monthly benefit is $179.73. The Florida Retirement System law requires certification by two licensed physicians in Florida that one is totally and permanently disabled and unable to render any useful and efficient work before this agency can approve an employee for retirement with disability. Apparently, you made no attempt to retire with disability, other than discussing the matter in general with us, and according to our records, you made no application for disability retirement. Further, a retiree is not allowed by law to change his type of re- tirement once he begins drawing monthly re- tirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State Retirement Director enter a Final Order authorizing Mr. Bell is submit an application for disability retirement benefits. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1982. COPIES FURNISHED: Silas R. Eubanks, Esquire 103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303 William Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Daniel C. Brown, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
Findings Of Fact Petitioner and Respondent agreed to the following facts: On November 23, 1975, Herschel and Audi Motes, a deputy sheriff with the Putnam County Sheriff's Department, died of a heart attack while arresting an individual who struggled with the arresting Louise Motes, Petitioner in this cause, was married to Herschel Audi Motes at the time of his death, thereby becoming his widow. Mrs. Motes remains unmarried to date and is qualified as to her status for all of the rights and benefits granted January 21, 1976, Sheriff E.W. Pellicer wrote a letter to the Department of Administration, Division of Personnel and Retirement, furnishing the Department with the record of Mr. Motes' salary, contributions to the retirement fund, together with the dates of his employment. The letter concluded by stating, "I would appreciate hearing from you at an early date and if anything further is needed, please advise." The letter was signed by E.W. Pellicer, Sheriff, Putnam County, Florida. On March 10, 1976, Mrs. Motes received a letter from Marjorie B. Smith, Retirement Benefits Specialist, with the letter showing a copy to Mr. E.W. Pellicer. The letter stated as follows: "As the designated beneficiary and surviving spouse of Herschel A. Motes, who died November 23, 1975, you are entitled to the refund of the accumulated retirement contributions which amount to $4,325.69 or the Option 3 monthly retirement benefit. If you desire the refund of the contributions, you should execute a request for refund, form . . . which must be completed in the personnel office of the Putnam County Sheriff's Department If you prefer the Option 3 monthly retirement benefit, which has been computed to be $125.29 based on 18.30 years of service, you should execute the enclosed form FST-11b on which a single beneficiary must be designated and send your personal remittance in the amount of $1,089.23 made payable to the Florida Retirement System. This payment is necessary to allow credit for four years of military service, service rendered from April through August 1963, and complete payment of the necessary contributions for the 1963-64 and 1964-65 years. This monthly benefit, if elected instead of the refund, is a lifetime income which will continue even though you should remarry. In the event of your death prior to receiving in monthly benefits an amount equal to the total accumulated retirement contributions, any contribution on deposit in excess of the total monthly benefits paid will be refunded to your beneficiary. Please let us know if we may be of further assistance." (emphasis added). Enclosed with this letter was form FST-11b which is an "Application of Beneficiary for Monthly Benefits." The form. Joint Exhibit I, contained no reference whatsoever to any rights or benefits under Section 121.091(7)(c)(1), Florida Statutes (the death in the line of duty benefits). Either the Division of Retirement or a Mrs. Key, with the Sheriff's Office of Putnam County, had filled in the blank portions of the first sentence of the form by writing "121" and "3" in the blanks where the form states "Chapter 121, Option 3." The remainder of the form is typed in except for the signature of Louise A. Motes. After filing the "application" through the Putnam County Sheriff's Office, and receiving her first benefit check, Mrs. Motes had a conversation with a Mr. Ronald Clark of Palatka, Florida, about workmens' compensation comprehension benefits. As a result of that conversation, she went to an attorney, who filed a workmens' compensation claim for her. Sometime thereafter, Mrs. Motes was going through some of her husband's papers, which were contained in a filing cabinet at the Sheriff's Office, which her sons brought home. In those papers, she found a newspaper article that Mr. Motes had cut out and saved which told about the death in the line of duty benefits, a copy of the newspaper articles is attached to and made part of Joint Exhibit K. In response thereto, Mrs. Motes went back to the attorney who had filed her workmens' compensation claim and inquired about the "death in the line of duty retirement benefits" of Section 121.091(7)(c), Florida Statutes. At no time prior to or during her filing out the "application" from the State of Florida, Bureau of Retirement, was she informed by anyone that she might possibly entitled to higher benefits because of the manner in which her husband died. At no time prior to filling out the retirement "application" did she have any actual knowledge that the State paid benefits other than those benefits which had been presented to her which were listed on said application. At no time did the Sheriff's Office inform her that she had any possibility of benefits other than the benefits listed on the above stated State of Florida, Bureau of Retirement, application form. By letter of November 7, 1977, Steven S. Mathues, Assistant Division Attorney for the Division of Retirement, Department of Administration, informed Ms. Jill Brown (the attorney for Mrs. Motes who began the original inquiry as to obtaining the "death in the line of duty benefits"), that " . . . it is this Division's position that all retirement benefits and options become fixed when the first warrant is cashed. However, it would appear that under Chapter 120, Florida Statutes, your client would have a right to challenge this position . . . . As I see it, the issue would be whether Mrs. Motes' notarized application . . . and continued acceptance of benefits would estop her from now attempting to change the benefit " Thereafter, Mrs. Motes' case was referred to Mr. Maynard, who after several conferences with Mr. Mathues, the attorney for the Division of Retirement, filed a Petition for Administrative Hearing on Mrs. Motes' behalf, alleging, among other things, that Herschel Audi Motes was killed in the line of duty within the meaning of Section 121.091(7)(c)(1), Florida Statutes. The petition also alleged that the Division's "policy" that as of the moment Mrs. Motes had cashed one of her benefit checks her retirement benefits had vested and could not be changed by her subsequent to that event was within the definition of a rule as defined by Section 120.54(14), Florida Statutes, and that the Division of Retirement had never promulgated such a rule in accord with the procedures required by Chapter 120. Depositions were taken in Daytona, Palatka, and Tallahassee on the issue of whether or not Mr. Motes had been "killed in the line of duty." Subsequent to those depositions, Mr. Mathues informed Petitioner that the Division of Retirement no longer wanted to contest the in line of duty issue. Thereafter, Mr. Mathues and Mr. Maynard, attorney for Petitioner, executed a "Joint Motion for Continuance" which states as follows: "1. The parties have settled all of the questions which relate to the issue of whether Herschel Audi Motes, his widow, to the in line of duty death benefits provided in Chapter121, Florida Statues. The only remaining issue in dispute is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided in Chapter 121, Florida Statutes, because she has been cashing her benefit checks since 1975. The remaining issue is solely a legal issue and does not require any testimony by witnesses, with the possible exception of testimony by Mrs. Motes and/or affidavits from Mrs. Motes and the Putnam County Sheriff's Office if the parties cannot agree to a stipulation of facts. Therefore, this issue can be argued by the undersigned attorneys for the parties in Tallahassee, Florida, at the time and place stated above." The Joint Motion was signed by both Mr. Maynard and Mr. Mathues. In response to that Motion, the hearing officer promulgated an Order entitled "Order of Continuance" which stated: "The parties in the above styled cause have filed a Joint Motion for Continuance of the hearing from February 15, 1979, at 1:00 p.m. in Palatka, Florida, to February 26, 1979, at 10:00 a.m., in Room 103, Collins Building, in Tallahassee, Florida. The Motion is granted. Done and Ordered this 12th day of February, 1979, in Tallahassee, Leon County, Florida." With the Division of Retirement, Department of Administration, no longer contesting the in line of duty issue, a final hearing was held on February 26, 1979, on the only remaining issue in dispute which is whether or not Louise Motes has waived her rights to the in line of duty death benefits provided by Chapter 121, Florida Statutes, because she has been cashing retirement benefit checks since 1975. The issue as to whether Petitioner's husband died in such a manner as to entitle her to in-line-of-duty death benefits has been settled by agreement of the parties in Petitioner's favor. This Administrative Hearing was held to resolve the issue of whether Petitioner waived her right to the in-line-of-duty death benefits provided in Section 121.091(7)(c)(1), Florida Statutes, inasmuch as she has been cashing benefit checks awarded her pursuant to Section 121.091(6)(a)(3). Inquiry to the Respondent as to subject retirement claim was made by Petitioner, Louise Motes, when she became aware of the possibility of her entitlement to in-line-of-duty death benefits. No rules have been promulgated in relation to Section 121.091(7) Death benefits, although Rule 22B-4.10(5) was promulgated in 1972 (amended 1974) under authority of Section 212.091(6), Florida Statutes.
Recommendation Deny the request of Petitioner to change the retirement benefits she now receives to in-line-of-duty death benefits provided in Chapter 121, Florida Statutes. DONE and ORDERED this 1st day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Stephen S. Mathues, Esquire Division of Retirement Room 530, Carlton Building Tallahassee, Florida 32301 Zollie M. Maynard, Esquire 502 East Jefferson Street Post Office Box 1716 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT LOUISE MOTES, Petitioner, vs. DOAH Case NO. 78-2105 DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue The issue in this matter is whether Petitioner is entitled to retroactive disability retirement benefits from June 1, 1999, through April 30, 2001.
Findings Of Fact Petitioner was a bus driver employed by the Lee County School Board. He has a tenth-grade education and is of normal intelligence. Petitioner had worked for Lee County Schools for over eight years when he had a work related injury in March 1997. Upon settlement of his claim for workers' compensation, he resigned his position with Lee County Schools on June 22, 1999. On April 20, 2001, Petitioner, for the first time, sought information regarding disability retirement benefits from his personnel office and met with Griffin for that purpose. At that time, Petitioner had 8.33 years of creditable service. After meeting with Petitioner, Griffin sent an e-mail to Mark Sadler (Sadler), who at that time served as the Disability Administrator for the Division. During the e-mail exchange, in-line-of-duty disability benefits were not mentioned. Regular disability benefits under the FRS require that a member be "vested." In this case, that required a member, including Petitioner, to have ten years of creditable service (it has since been changed by the Legislature to six years). In-line-of-duty disability benefits, on the other hand, were available from the first day of employment. On August 1, 2001, Petitioner contacted the Division to inquire about benefits. As a result of the call, the Division sent a disability handbook and application to Petitioner on August 14, 2001. The disability handbook contains a description of all disability benefits available to members, as well as requirements for obtaining those benefits. On January 25, 2002, the Division received an application for in-line-of-duty disability benefits from Petitioner. After receiving and reviewing the relevant materials, the Division approved his application for benefits and added him to the retired payroll effective February 1, 2002. Shortly after being approved, Petitioner requested the Division to re-establish his effective date of retirement to April 1, 2001, based on the e-mail exchange between Griffin and Sadler. After reviewing Petitioner's file, the Division determined that he had attempted to apply on April 20, 2001, and accordingly re-established his effective retirement date as May 1, 2001, the first day of the following month. Shortly after the Division changed his effective retirement date to May 1, 2001, Petitioner then requested the Division to re-establish it as June 1, 1999, to correspond with his resignation. Howell again reviewed his file. Since there was no evidence of any earlier attempt to apply for benefits, the Division correctly determined that Petitioner's May 1, 2001, effective date was accurate. On July 23, 2003, the Division issued the Final Agency Action denying his request for a June 1, 1999, effective retirement date, and Petitioner timely appealed. According to the rules adopted by the Division, when a member applies for retirement benefits more than 30 days after his or her termination, the effective retirement date is established as the first day of the month following receipt of the application by the Division. The Lee County School System does not routinely provide termination or worker's compensation information to the Division, unless it is in connection with an application for benefits. Since Petitioner made no application for benefits, the Division was not aware that Petitioner's employment was terminated as of June 22, 1999, until the e-mail exchange in April 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying Petitioner's request for an effective retirement date of June 1, 1999. DONE AND ENTERED this 29th day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 29th day of March, 2004. COPIES FURNISHED: William C. Strickland 8230 Ebson Drive North Fort Myers, Florida 33917 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the decision of the Division of Retirement to terminate the retirement benefits of Peter C. Versage be sustained, and that said benefits be terminated until the amount of $1,261.96 is repaid to the trust together with interest at ten percent per annum from the date of May 23, 1977. DONE and ORDERED this 2nd day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Division of Retirement Room 530, Carlton Building Tallahassee, Florida 32304 Peter C. Versage 6929 NW 34th Avenue Fort Lauderdale, Florida 33309
The Issue Prior to the hearing a short pre-hearing conference was held. It was stipulated to by the parties that Hadden was a member of the Florida Retirement System, had over 17 years of creditable service, and that Hadden could no longer perform the duties of an automotive mechanic because of his physical limitations. Hadden had applied for regular disability retirement benefits. The Division controverted Hadden's eligibility for such benefits on the basis that while Hadden could not perform the duties of an automotive mechanic that his physical condition did not prevent him from rendering useful and efficient service to the State in some other capacity calling for less strenuous activity.
Findings Of Fact Hadden is a white male, 51 years old, who worked as an automotive mechanic for Polk County for over 17 years. Hadden had had no formal schooling and can read and write very little. From Hadden's testimony and observations at the hearing regarding Identification of documents, it was apparent Hadden is functionally illiterate. Evidence was received that the former employer had indicated that there were no positions available for which Hadden was qualified. Hadden testified that he did do yard work at his home, mowing the lawn with a riding mower and weeding flower beds. However, Hadden indicated that if he became hot he would suffer pains in his chest and have to take his medication and lay down and rest for several hours. It appeared that even light physical work was beyond his capacity to perform on a regular continuing basis. Doctors' reports supporting Hadden's retirement application indicate that Hadden's physical condition will not improve and will probably worsen. Doctors restrict his activity to "mild" activity which is not strenuous or continuous. This would be consistent with Hadden's testimony regarding yard work. It should be noted that medical reports indicate that Hadden's heart condition is complicated by a nervous condition which restricts his ability to perform tedious manual work.
Findings Of Fact Petitioner, Dr. Juan C. Costa, is a physician who is currently retired because of a physical disability involving emphysema and arthritis. Before retiring, he- worked for a period of time as a physician at the Department of Corrections' Marion Correctional Institution near Ocala, Florida. His last day of actual work was December 15, 1984, but he remained on the payroll after that time because of vacation and sick leave time accrued. His actual termfnation date was some time in January, 1985. Dr. Costa is disabled. His disability is classified as a regular disability - not "in line of duty." Feeling that the provisions of the disability and survivor benefit program of the Florida Retirement System applied to him, on March 5, 1985, he applied to the State of Florida for disability retirement. Submitted with his application were statements from his employer and two physician reports indicating that he was, in fact, disabled. His application and the supporting documents submitted therewith were prepared in accordance with the terms of a letter Dr. Costa received from the State of Florida, Division of Retirement, which told him what must be submitted. In addition to the above, he also submitted a copy of a form submitted to the Social Security Administration for completion by that agency and return to the Division of Retirement which was a "Report of Confidential Social Security Benefit Information." This form, when filled out, was submitted to the Division of Retirement as support for Petitioner's application for retirement benefits. In addition to the above, Dr. Costa also submitted a letter which he received from Teresa Bender, Medical Examiner for Respondent's Disability Determination Section which indicates that it is unable to process his application because of an insufficiency of information regarding his social security credits. Dr. Costa was born on May 12, 1912. When he terminated his service with the Department of Corrections, he was 72 years old. He had been receiving Social Security Retirement benefits since age 70. However, he never applied for nor received Social Security Disability Benefits and would not have been awarded them had he applied for them after attaining age 65. Once an individual has reached age 65, he is no longer eligible for disability retirement benefits under the Social Security program. He may continue to earn money without limit at age 70, regardless of whether he is disabled or not. The issue of disability goes not to the issue of earnings but to the issue of the ability to work. If an individual under the age of 65, who is retired on disability benefits, goes back to work, those disability benefits may be lost. However, an individual who is disabled, but is age 70 or beyond, would not lose benefits because benefits after age 65 are based not on disability but on retirement and at age 70, the limitation on amount earned is removed. His Social Security Retirement Benefits checks began arriving in January, 1983. Because of his age, he continued to work without penalty after his benefits began. By deposition, Waymen D. Sewell, the District Manager for the Social Security Administration in Tallahassee, Florida indicated that the benefits received by an individual on the basis of disability will, upon that individual's reaching the age of "retirement," age 65, be converted automatically from disability benefits to retirement benefits. There will be no reduction in the amount of benefit received. The only change will be that the money forming the source of the payment will stop coming from the Disability Trust Fund and start coming from the Retirement Trust Fund. As far as the recipient is concerned, nothing changes. There is an additional qualification for disability retirement. An individual, in order to claim and receive disability retirement under social security, in addition to being fully insured, must have 20 quarters of work credit out of the 10 year period up to the quarter in which the onset of disability was established. Here, Petitioner is retired and receiving retirement benefits from Social Security. He initially filed for retirement benefits in January of 1981 and was paid retroactively to April, 1980. At the time, he had 24 quarters of credit. Since based on his birth date, he needed 24 quarters of enrollment, he had exactly what he needed and retired at the earliest possible time. Had Dr. Costa been under 65 at the time he retired, he would have needed 20 quarters within the last 10 year period prior to retirement in order to qualify for disability. According to the records on Petitioner, he did not have 20 quarters of credit during that period. The 24 quarters he had was over a period greater than 10 years and a part of it was earned after he became age 65. The quarters he earned after age 65 did not count toward the 20 quarter retirement because once an applicant turns 65, he is paid strictly on the basis of retirement and not disability. In substance, Dr. Costa was never eligible for disability retirement under Social Security until after he became age 65 at which point he became eligible for retirement benefits which would eliminate any entitlement to disability benefits. According to David Ragsdale, who works with Division of Retirement, under the Florida Retirement System statute there are two types of disability retirement (1) "in line of duty," and (2) "regular" retirement." "In line of duty" does not require more than one day service. "Regular" retirement initially required five years service prior to July 1, 1980. However, in July, 1980, the law was amended to add an alternative 10 year total service criteria as well as an exception from these criteria for those not drawing or eligible to draw Social Security disability. It is the policy of the Division of Retirement, as to the Social Security exception, that if an individual can get a Social Security benefit, he cannot secure retirement benefits from the State under the Social Security exemption. This is interpreted by the Division of Retirement to mean either Social Security type benefit - either retirement or disability and the receipt of either one disqualifies an individual from State disability retirement eligibility under the Social Security exception. Though some people receive State disability retirement while drawing Social Security benefits, they were not qualified for their State retirement under the Social Security exception. They had either worked more than five years as of July 1, 1980 or had 10 years total service. Dr. Costa's application was received by the Division of Retirement, but no determination as to his qualification for disability retirement from a medical standpoint was made. His application was not accepted because, on the face of it, he did not meet the service requirement in that he had neither 5 years service by July 1, 1980, nor 10 years service overall. He was also disqualified because he was receiving a Social Security benefit, albeit the benefit was the retirement benefit and not the disability benefit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Department of Administration, Division of Retirement, accept and process Petitioner's application for regular disability retirement benefits. RECOMMENDED this 1st day of November,1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November,1985. COPIES FURNISHED: James M. Donohoe, Jr., Esq. P. O. Box 906 Gainesville, FL 32602 Stanley M. Danek, Esq. Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 N. Monroe Street Suite 207 - Building C Tallahassee, FL 32303 Gilda Lambert Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32301 ================================================================ =
The Issue The issue for determination is whether the Florida Retirement System's retirement benefit option selected by Petitioner's deceased son should be changed from Option 1 to Option 2.
Findings Of Fact Ms. Kerr is the mother of the late Mr. Kerr. Mr. Kerr was employed by the Broward County Sheriff's Office (BSO) from January 2, 1990 through September 28, 2004. Mr. Kerr was a detective, hereinafter referred to as Det. Kerr. As a result of being an employee of the BSO, Det. Kerr was a member of the Florida Retirement System (FRS). During his employment, BSO, not Det. Kerr, made contributions to the FRS for his benefit. Retirement is the agency charged with the responsibility of administering the FRS. In complying with its duties, FRS publishes and provides an informational handbook and forms regarding retirement issues to its FRS members. FRS' staff also provide counseling to FRS members who inquire about FRS issues. A website is also maintained by FRS for its members to inquire about FRS issues and obtain information about retirement. On July 29, 2004, Det. Kerr completed an Application for Disability Retirement (Application), which was signed and notarized. The Application indicated, among other things, that he was applying for regular disability benefits and that Dr. Garry Friedberg was one of his treating physicians. Det. Kerr designated Ms. Kerr as his primary beneficiary on the Application. On August 2, 2004, Retirement received the completed application. Det. Kerr had over 16 years of creditable service, and he was, therefore, vested as a Special Risk member of the FRS and eligible for retirement benefits. Retirement acknowledged receipt of the documents needed to make a determination on Det. Kerr's disability retirement application. Also, Retirement advised him that, if his disability retirement application was approved, further documents would be required before he could be placed on the retirement payroll. One of the additional documents requested by Retirement was Form FRS-11o, which was FRS' Option Selection Form for its members. FRS-11o must be completed before retirement benefits can be paid. FRS-11o notices the member of four different options for payment of retirement benefits and contains a narrative describing the effect of the selection of each of the four options. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years, but, if the retiree dies before the end of the 10 years, the benefit is paid to the surviving beneficiary for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the retiree and beneficiary. Option 4 provides a reduced benefit for the lifetime of the retiree and beneficiary, which benefit is reduced by 33 1/3 percent upon the death of either. By letter dated August 19, 2004, Retirement advised Det. Kerr that his application for disability retirement was approved. The letter further advised him, among other things, of other documents that he had to submit, including a completed FRS-11o, before he could be placed on the retirement payroll. By letter dated August 23, 2004, Retirement advised Det. Kerr of his estimated monthly disability retirement benefits under Option 1 ($2,364.84) and Option 2 ($2,189.13). Insufficient information was available to Retirement to calculate the estimated monthly disability retirement benefits under Options 3 and 4, so none were provided. The letter further advised Det. Kerr as to what was required for Retirement to calculate monthly estimates for Options 3 and 4. Additionally, the August 23rd letter, enclosed a blank FRS-11o for Det. Kerr to complete and return. Furthermore, the letter included an informational document, entitled "What Retirement Option Should You Choose?," regarding making his option selection. This informational document is a standard document included by Retirement, with Retirement's estimates of disability retirement benefits. As to changing an option choice, the document provides in pertinent part: Once you cash or deposit a benefit payment, or begin the Deferred Retirement Option Program (DROP), your [option] selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before [your] decision. Regarding Option 2, the document provided in pertinent part: [T]his option would be particularly appropriate if you are in ill health and your future physical condition is uncertain at the time of retirement since independent children, other heirs, charities, organizations, or your estate or trust can be designated as beneficiaries for Option 2. The document invites FRS members to contact Retirement with any questions. No evidence was presented to demonstrate the Det. Kerr contacted Retirement regarding questions as to the options. On August 27, 2004, Det. Kerr completed and had notarized FRS-11o. FRS-11o reflected, among other things, the following: the selection of Option 1 by an "X" and being circled; and his marital status as being not married. The language describing Option 1 next to the selection was as follows: A monthly benefit payable for my lifetime. Upon my death, the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. Also, on FRS-11o was Option 2. The language describing Option 2 next to the selection was as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. On September 1, 2004, Retirement received Det. Kerr's FRS-11o, on which Option 1 was selected and which was properly completed, signed, and notarized. It is undisputed that Det. Kerr's FRS-11o met all requirements as to being in a status of completion. Typically, FRS-11o is the only indication as to a member's wishes regarding his or her option selection. According to Retirement, usually, the disability retirement application is completed prior to receiving an estimate of benefits, and, therefore, it is not uncommon for an FRS member to designate a primary beneficiary and later select Option 1 after reviewing his or her estimate of benefits. According to Retirement, only a member or someone acting on his or her behalf, such as a legal guardian or attorney-in-fact, can make a retirement option selection for the member. No evidence was presented that Det. Kerr, himself, requested a change to his selection of Option 1. On September 28, Det. Kerr resigned from the BSO. October 1, 2004, was established as Det. Kerr's effective disability retirement date. Det. Kerr died on October 20, 2004, less than a month after resigning, without receiving his first disability retirement benefit payment. At the time of his death, Det. Kerr was not married and had no children. Further, no parent was his legal guardian or dependent upon him for support. Det. Kerr's circumstances surrounding his option selection do not place his situation in the usual or typical category of FRS members referred to above by Retirement. Det. Kerr was suffering from AIDS. His symptoms first appeared in 1995. He was being treated by Garry Friedberg, M.D., a physician whose specialty was infectious diseases. As Det. Kerr's treating physician, on July 26, 2004, (approximately three months before Det. Kerr's death) Dr. Friedberg completed a "Disability Insurance - Attending Physician's Statement" form, regarding Det. Kerr's medical condition. The form contained several questions, including those as to diagnosis, prognosis, and mental and cognitive limitations. Dr. Friedberg diagnosed Det. Kerr with the end- stage of AIDS, which included wasting, assistance with activities of daily living, 12 to 15 loose stools per day, and pain in his stomach. Dr. Friedberg determined Det. Kerr's prognosis as terminal. Dr. Friedberg described Det. Kerr's mental and cognitive limitations as poor memory, difficulty concentrating, and inattentiveness. Question 5.c. of the form asked whether Det. Kerr was competent to endorse checks and direct the use of proceeds, to which Dr. Friedberg checked the yes box. It is undisputed that Det. Kerry had a close, loving- relationship with his mother and nephews. Det. Kerr's mother testified as to her son's desires and wishes for his retirement benefits. The undersigned finds her testimony credible. As her son's health deteriorated, Det. Kerr made her co-owner of his home in order for the home to become hers at his death. Det. Kerr had a loving relationship with his nephews and he wanted to make sure that their education would be paid-for through his retirement benefits. Det. Kerr informed his mother that he designated her as the beneficiary of his disability retirement plan so that she could keep his house and pay for the education of his nephews. In a letter dated May 18, 2005, Det. Kerr's healthcare providers gave insight into his medical condition and his intent regarding his disability benefits. The undersigned finds the letter persuasive. Among other things, they indicate that they were Det. Kerr's healthcare providers for several years and that, throughout 2004, Det. Kerr was administered opium to help control his chronic wasting diarrhea and administered opioid- based analgesics for chronic pain. Det. Kerr made it clear to his healthcare providers that his intent was to provide financially for his family at the event of his death. Without question, they insist that the narcotic regimen in Det. Kerr's treatment, caused him to mistakenly mark Option 1, which was the opposite of and completely contrary to the whole intent of what he wanted to do with his disability benefits. Furthermore, they indicate that Det. Kerr intended to check Option 2 in that it would provide for Det. Kerr's family as Det. Kerr had intended. One of Dr. Friedberg's clerical employees, John Carriere, notarized the option selection form at Dr. Friedberg's office for Det. Kerr on August 27, 2004. At that time, the employee had known Det. Kerr for approximately five years and knew what Det. Kerr's intentions were towards his (Det. Kerr's) family, concurring that Det. Kerr wanted his disability retirement benefits to provide for his (Det. Kerr's) mother and nephews. The employee observed that on that day Det. Kerr had lost considerable weight, was sweating, and was not looking well. The undersigned finds the clerical employee's testimony persuasive. Det. Kerr was friends with Robert Brown for 16 years. Mr. Brown is a certified financial planner but was not Det. Kerr's financial planner. The undersigned finds Mr. Brown's testimony credible. Mr. Brown was well aware that Det. Kerr wanted to make sure that his (Det. Kerr's) mother and nephews were taken care of with his disability retirement benefits. Det. Kerr sought advice from his friend regarding the disability retirement benefits. Mr. Brown and Det. Kerr met with the BSO's human resource counselor to discuss the different options available. Det. Kerr knew that he was dying, and he decided upon Option 2 because only it provided the benefits that he wanted for his mother and nephews upon his death. On August 27, 2004, Det. Kerr was at Dr. Friedberg's office and was completing FRS-11o (the option selection form), and he called Mr. Brown, who was busy at work. Det. Kerr requested Mr. Brown to remind him which option number to select. Mr. Brown requested Det. Kerr to call him after working-hours, but Det. Kerr insisted that Mr. Brown talk with him then and provide the requested information. Mr. Brown, not recalling the option number that had been previously determined to be selected but recalling only what the selection provided, informed Det. Kerr that the option decided upon was the one that left the money to his (Det. Kerr's) mother for ten years. Det. Kerr yelled back that he knew what the selection provided that he wanted, but now he only wanted the option number. Mr. Brown requested Det. Kerr to wait a few hours and call him back; but Det. Kerr did not. Later, when Mr. Brown and Det. Kerr were together, Mr. Brown asked Det. Kerr whether he needed any assistance with the retirement paperwork. Det. Kerr responded in the negative, indicating that he had finished the paperwork by himself and convincingly stating that the family was protected. Mr. Brown asked to review the form, but Det. Kerr did not have the form with him. With Det. Kerr so convincingly expressing himself that the family was protected, Mr. Brown did not think of the retirement paperwork again. A finding of fact is made that Det. Kerr at all times had decided on Option 2 and at all times had intended to check Option 2. A finding of fact is made that the medical evidence is sufficient to demonstrate that, due to Det. Kerr's terminal illness and the medications given to him, his mental capacity to make an informed choice at the time that he selected Option 1 was affected; and that he mistakenly checked Option 1, whereas Option 2 would have protected his family as he had intended, which intent had never wavered or changed. By letter dated December 6, 2004, Retirement advised Det. Kerr's family that his estate was entitled to the disability retirement benefits due for the month of October 2004. Additionally, included with the letter was a "Joint Annuitant Information" document, and the family was advised that, if Det. Kerr had a survivor who qualified as a joint annuitant, a monthly benefit may be payable to such person. A joint annuitant was mentioned in several of the letters from Retirement to Det. Kerr, prior to his death, regarding his disability retirement. In a letter dated July 30, 2004, related to completing FRS-11o, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Application, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in a letter dated August 10, 2004, again, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in two letters dated August 19, 2004, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Estimate of Retirement Benefit document, a joint annuitant is mentioned only as it relates to Options 3 and 4; in an Estimate of Disability Retirement Benefits document, dated August 23, 2004, a joint annuitant is mentioned only as to Options 3 and 4 and calculations therefor; in a document provided to Det. Kerr by Retirement, entitled "What Retirement Option Should You Choose?" a joint annuitant is mentioned as it relates to all of the available options; in FRS-11o, a joint annuitant is mentioned only for Options 3 and 4; and in a letter dated December 6, 2004, after Det. Kerr's death, Retirement refers to a joint annuitant and includes information regarding a joint annuitant. No information was received by Retirement as to a joint annuitant. Further, at hearing no assertion of Ms. Kerr being a joint annuitant was made. Ms. Kerr is the personal representative of her son’s, Det. Kerr's, estate. On September 26, 2005, Retirement received a letter from Ms. Kerr's counsel requesting Retirement to change Det. Kerr's option selection from Option 1 to Option 2, explaining, among other things, Det. Kerr's intent but that his medical condition prevented him from following through with his intent. No mention was made in the letter of a survivor who qualified as a joint annuitant. Retirement contends that an option selection can only be changed in the event the designated beneficiary qualifies as a joint annuitant. On October 14, 2005, Retirement, by final agency action letter, denied the request to change Det. Kerr's option selection but erroneously cited Section 121.091(6)(h), Florida Statutes, as the statutory basis for the decision to deny the request, which stated as follows: (h) The option selected or determined for payment of benefits as provided in this section shall be final and irrevocable at the time a benefit payment is cashed or deposited or credited to the Deferred Retirement Option Program as provided in Subsection (13). Retirement admits that the basis for the denial stated in the final agency action letter is incorrect. No benefit payment had been issued, cashed or deposited. Retirement has never amended or sought to amend its denial-letter.
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 granting the request of Rosalie J. Kerr and changing the retirement option selection of her deceased son, Robert R. Kerr, from Option 1 to Option 2. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 10th day of July, 2006.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, Evelyn S. Day, is entitled to modify her type of retirement benefits from "early service retirement" to "disability retirement."
Findings Of Fact The Findings of Fact set forth in paragraph 1 are accepted. The Findings of Fact set forth in paragraph 2 are accepted. The Findings of Fact set forth in paragraph 3 are accepted. The Findings of Fact set forth in paragraph 4 are accepted. The Findings of Fact set forth in paragraph 5 are accepted in part. In that paragraph, the Hearing Officer found as follows: Her memory and thought processes had evidentially [sic] already begun deteriorating because Mrs. Day was unable to ask guestions concerning her retirement rights, responsibilities, and entitlements very well. Because of this condition, Ms. Hobby agreed to accompany her to the offices of the Division of Retirement in order to ascertain what her retirement rights, entitlements, and responsibilities might be preparatory to Mrs. Day electing to retire. The above-quoted findings are rejected as conclusory and not supported by competent, substantial evidence. The Findings of Fact as set forth in paragraph 6 are rejected as not supported by competent, substantial evidence, except the finding that Mrs. Day retired and Ms. Hobby filled out her application for retirement. Additionally, the Hearing Officer's findings that petitioner was incompetent and suffering from Alzheimer's disease are rejected as being legal conclusions not supported by any judicial order or by any competent, substantial evidence in the record. The Findings of Fact as set forth in paragraph 7 are accepted. The Findings of Fact as set forth in paragraph 8 are accepted. The Findings of Fact as set forth in paragraph 9 are accepted. That portion of the Findings of Fact in paragraph 10 which concluded the petitioner was incompetent is rejected as not supported by competent, substantial evidence. The petitioner has never been declared incompetent or determined to be incompetent by a medical doctor. Findings of Fact as set forth in paragraph 11 are accepted in part and rejected in part. That portion of the Findings which states that the application for retirement was not filed by Ms. Day is not supported by competent, substantial evidence. In point of fact, the Division has a filed application signed by the petitioner. The portion of the paragraph finding the petitioner incompetent is rejected as not supported by competent, substantial evidence. There has been no legal or medical determination that the Petitioner is incompetent. Additionally, there is no competent, substantial evidence that petitioner is suffering from Alzheimer's disease. The Hearing officer's finding that the petitioner's application was filed in error is not supported by competent, substantial evidence.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Department of Administration, Division of Retirement, according the Petitioner, Evelyn Day, the opportunity to change the status of her retirement benefits from early retirement to disability retirement, effective as of the date her earlier retirement application was accepted by the agency. DONE AND ORDERED this 3rd day of January, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 48B-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2085 PETITIONER'S PROPOSED FINDINGS OF FACT 1-8. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted to the extent that the record establishes that the Petitioner signed the application. Accepted to the extent that it was established that Petitioner has received the retirement checks. It is not established that the Petitioner cashed or deposited those retirement checks by preponderant evidence of record. Accepted insofar as it recites the Respondent's position in this matter. Accepted. Accepted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esq. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Mr. Joseph G. Stokes 911 "B" Street Crestview, Florida 32536 Larry D. Scott, Esq. Division of Retirement Cedars Executive Center Building C 1639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Prior to convening the hearing, a short prehearing conference was held in which it wad developed that the Division of Retirement controverted Jones' eligibility for in-line-of-duty disability retirement on the basis that Jones' disability did not arise totally from his injury suffered while a member of FRS.
Findings Of Fact Dr. Baker was called by the Petitioner and testified that his associate, Dr. Willis, had initially treated Mr. Jones in 1969 for an injury to his back. Dr. Baker testified from Dr. Willis' medical records, Dr. Willis having died since the date of Jones' treatment. Dr. Willis had treated Jones for low back sprain. Jones recovered and returned to work after the 1969 injury. On August 11, 1970, Jones again sought treatment from Doctors Baker and Willis for pain in the lower back. At this time, the trouble was again diagnosed as low back sprain (lumbar sacral sprain). Jones was treated and returned to work. On August 25, 1970, Jones was seen as a result of an ankle injury suffered in a tractor accident which did not affect his back. In February 1973, Jones injured his back stepping out of a truck. This was diagnosed as a sprain of the lower back with possible disc disease. Jones was eventually hospitalized by Dr. Baker, and Jones recovered slowly from acute muscle spasm. He returned to work in May 1973 and was told to wear a brace. However, Jones continued to have problems with his back up until June 1973 when the spasm ceased. He then reported no more difficulty until May 1974, when he injured his back lifting a can of fuel. After being injured on May 3, 1974, Jones was treated by Dr. Baker for acute muscle spasm, acute lower back sprain which affected the sciatic nerve. Dr. Baker prescribed bed rest, a bed board, and muscle relaxants. On May 10, 1974, Dr. Baker hospitalized Jones and a myelogram was done which did not reveal any rupture of the disc. Various treatments were tried and after July 23, 1974, a discogram was done which revealed the degeneration of three disc in the lower back. The condition placed pressure on the nerve roots and spinal cord. Dr. Baker said that the periods of recuperation in 1969 and 1970 were within normal limits and expressed his opinion that Jones recovered from these injuries. Dr. Baker expressed his medical opinion that the accidents that Jones suffered in 1973 and 1974 had disabled Jones by placing pressure on the affected disc which had been weakened by disease and a curvature of Jones' spine. Because of Jones' recovery from the 1969 and 1970 injuries to his back, Dr. Baker was of the opinion that these incidents had not contributed to Jones' ultimate disability. The Division of Retirement has not controverted the disability status of the Petitioner, Jones, as evidenced by its approval of regular disability benefits. As stated above, the matter in controversy was whether Jones' disability arose totally from accidents suffered while Jones was a member of FRS. The uncontroverted testimony of the medical expert, Dr. Baker, was that Jones' disability arose solely from injuries to his back occurring in 1973 and 1974, after Jones had become an FRS member. To the extent Jones' back may have been diseased in 1969, 1970 or other times prior to his entry into FRS, the record is clear that he worked and contributed to the retirement system regularly from December 1, 1970, until February 1973. Therefore, he was not "disabled," having performed his job duties for over three years. It was only after being injured in 1973, after which he had an extended recuperative period, and again in May 1974, that Jones was unable to return to his duties because of his disabilities.
Recommendation Based upon the foregoing, Jones' disability was suffered in line of duty and after he was covered by FRS; therefore, Jones is entitled to and it is recommended that he receive in-line-of-duty disability benefits. DONE AND ENTERED this 13th day of November 1975. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James M. Matthews, Esquire Suite 210, 101 Wymore Road Altamonte Springs, Florida L. Keith Pafford, Esquire Division Attorney Division or Retirement 530 Carlton Building Tallahassee, Florida
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Waltraud E. Paehler, was a classroom teacher in the Clay County public school system until 1993, and says she had a total of nineteen years of service. During that time period, she participated in the Florida Retirement System, which is administered by respondent, Division of Retirement (Division). In 1992, petitioner was suffering from a number of illnesses, including chronic kidney failure and congestive heart failure, which impaired her ability to continue working as a teacher. She also suffered from depression. These conditions continued into 1993. During this time period, she was hospitalized on at least two occasions. Because her work was very stressful, and tended to exacerbate her medical condition, petitioner accepted her physician's advice and decided to resign her teaching position effective April 14, 1993. On April 21, 1993, or a week later, she executed her application for retirement and opted to take early retirement effective May 1, 1993, when she was fifty-four years of age. Even though the local school board had periodically distributed information booklets to all teachers, including petitioner, concerning early, normal and disability types of retirement, and the various retirement options were discussed annually at each school's in-service training seminar, petitioner says she was still unaware of the disability retirement option. Thus, she elected to take early retirement on April 21, 1993. Because of her age, her retirement benefits were reduced by forty percent, or five percent for each year under the normal retirement age of sixty-two. Assuming she was qualified, had she elected to take disability retirement, there would have been no penalty because of her age. At or about the time petitioner decided to resign her teaching position, her daughter, who was assisting petitioner in her personal affairs, telephoned the local school board in an effort to ascertain potential retirement options for her mother. She spoke with an unknown individual in the school personnel office who the daughter says was not "very knowledgeable." The two discussed "in general what (her) mother could do" with respect to retirement, but the daughter says she received no specifics other than the fact that her mother would be "entitled to partial pay." She also requested that an application for service retirement form be mailed to her mother. The daughter then relayed this sketchy information to her mother. Because of financial constraints, and in order to receive her benefits immediately, petitioner decided to take early retirement rather than wait until normal retirement age. After selecting the option 1 benefit, which entitled her to benefits for her lifetime only, petitioner carried the form to her school's personnel office where she executed it on April 21, 1993, before the principal's secretary, a notary public. Although the secretary could not recall the specific event, she affirmed that she would not allow anyone to sign a document who did not appear to be competent. In selecting option 1, which gave the highest monthly benefits for early retirement, petitioner acknowledged she understood the ramifications of making that choice when she did so on April 21, 1993. Thus, on that date she possessed sufficient mental capacity to know that these benefits would last only during her lifetime, and her daughters would not receive any benefits after her death. At final hearing she confirmed that, prior to executing the form, she had reviewed the various options under early retirement and selected the first option since she "figure(d) (she had) done enough for them all (of her) life, they can take care of themselves." In June 1994, petitioner read an article in a teacher trade publication and learned that a number of states offered disability retirement as an option and did not penalize retirees for early retirement due to a disability. This article prompted petitioner the following month to write a letter to the Division. When petitioner made inquiry with the Division in July 1994 concerning a change from early (service) to disability retirement, she was told that under Rule 60S-4.002(4), Florida Administrative Code, she could not do so after cashing her first check. By then, petitioner had long since cashed the first retirement check mailed to her at the end of May 1993. That advice prompted her to eventually challenge the Division's rejection of her claim on the theory that she was "incapacitated" when she made her decision to take early retirement. In support of her contention that in 1993 she lacked the necessary mental capacity to make a reasoned decision concerning her retirement, petitioner presented the testimony of three health professionals from whom she was receiving care in 1993. Their deposition testimony is found in petitioner's exhibits 1-3 received in evidence. Dr. Hardin, a family physician, was petitioner's primary treating physician from February 1992 until April 1993. In the spring of 1993, he recalled petitioner as being "confused," "in an imbalanced state," suffering "mental duress," dependent on explicit instructions for appointments, and taking a variety of prescribed medications for tobacco cessation, chronic renal failure, congestive cardiac condition, high blood pressure, cardiomyopathy, tremors, anxiety and migraine headaches. Because of these conditions, Dr. Hardin found it difficult to believe that she could "handle" a more complicated matter such as choosing a retirement option. Dr. Hardin acknowledged, however, that during the spring of 1993, he had little chance "to follow her" since another physician, Dr. Stoneburner, was managing petitioner's most important illness, renal failure. Dr. Stoneburner, a nephrologist and internist who has treated petitioner for a kidney disease since 1985, felt that in the spring of 1993 she "was not in a very good position to make a competent decision based on her emotional state." Just prior to her retirement, he observed petitioner as having "significant depression" and "a lack of desire to work." She was also taking as many as six or seven medications at one time which could "possibly" cause "someone to be confused." Based on these circumstances, Dr. Stoneburner opined that petitioner was not competent to make a rational judgment. However, Dr. Stoneburner conceded that if petitioner had been given retirement options explained in layman's terms, and had someone to assist her in explaining the various options, she could have made an intelligent decision. Kristina Crenshaw, a licensed mental health counselor, met with petitioner on four occasions between February 18 and April 12, 1993. Ms. Crenshaw found petitioner to have "significant difficulty with depression," in an "agitated, very stressed, (and) overwhelmed" condition, and with a "strong sense of uncertainty about her future." While the witness believed that petitioner would have understood a pamphlet describing her retirement options, she would not have "necessarily understood all the implications to her own personal life." The witness agreed, however, that once petitioner made a decision to resign her job, she seemed more "upbeat" and "positive." Further, petitioner had told her by telephone on April 15, 1993, that she felt "much better" after retiring from her job. The counselor did not know if petitioner was mentally competent when she opted for early retirement a week later. Nothwithstanding the testimony of the health professionals, the findings in paragraph 7 are deemed to be more compelling on the critical issue of competency, and it is found that on April 21, 1993, petitioner understood the nature and consequences of her acts, and she was capable of binding herself by the retirement application. Therefore, her request to have rule 60S-4.002(4) waived, or to have her "contract" with the Division set aside, should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Retirement enter a Final Order determining that petitioner was mentally competent when she elected to take early retirement and that her request to have rule 60S-4.0002(4) waived so as to permit her to file a request for disability retirement be denied. DONE AND ENTERED this 20th day of May, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4841 Petitioner: Partially accepted in finding of fact 1. Rejected as being unnecessary. Partially accepted in finding of fact 12. 4-5. Partially accepted in finding of fact 2. 6-7. Partially accepted in finding of fact 3. 8-9. Partially accepted in finding of fact 4. 10-11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Covered in preliminary statement. 14-20. Partially accepted in finding of fact 12. 21-24. Partially accepted in finding of fact 11. 25-31. Partially accepted in finding of fact 13. 32-37. Partially accepted in finding of fact 6. 38-39. Partially accepted in finding of fact 5. 40. Covered in preliminary statement. 41-43. Rejected as being unnecessary. Respondent: Rejected since the evidence shows that petitioner was employed by the Clay County School Board and not the Duval County School Board. Also, the only evidence of record as to years of service is the testimony of petitioner that she had nineteen years of service. However, this fact is not necessary to resolve the dispute. Partially accepted in finding of fact 8. Partially accepted in findings of fact 8 and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 10. 6-7. Partially accepted in finding of fact 12. 8-9. Partially accepted in finding of fact 11. 10-12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Rejected as being unnecessary. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for the resolution of the issues, not supported by the evidence, cumulative, or a conclusion of law. COPIES FURNISHED: Mark H. Levine, Esquire 245 East Virginia Street Tallahassee, Florida 32301-1263 Stanley M. Danek, Esquire Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement 2639-C North Monroe Street Tallahassee, Florida 32399-1560
