The Issue Whether Brian Cattaneo can return to suitable gainful employment without further training and education.
Findings Of Fact Brian Cattaneo, a 39-year-old male, was employed by Petitioner, Roadhouse Grill, from March 1995 in various management positions in Jacksonville and Orlando, Florida. He sustained a worker's compensation injury on or about March 25, 1998, while working as a kitchen manager for Petitioner. Cattaneo sustained a low back injury resulting from the consistent lifting and carrying of objects. His duties as a kitchen manager included loading ice baths into sinks located 12 inches from the floor, loading 50 pound bags of flour, and carrying and organizing cases of frozen foods and canned goods. Cattaneo was diagnosed with a herniated disk and placed on light duty. He was given restrictions on lifting, twisting, and bending. Upon returning to work the employer returned Cattaneo to the same duties he had when he was injured. The work he did fell outside of his restrictions as he was required to bend, twist, and lift, and he was provided with no accommodations for his restrictions. During this period, Intervenor was re-injured and was later diagnosed with a ruptured disk. Intervenor underwent a diskectomy. After time off for surgery, Intervenor returned to work with a six-hour working restriction and restrictions for bending, lifting, twisting, and climbing. After working for a while, Cattaneo was experiencing too much pain and was placed on off-duty status. After reaching maximum medical improvement, Cattaneo was given restrictions of no walking, sitting, or standing for more than two hours at a time, and no consistent bending, sitting, twisting, or climbing. Cattaneo was unable to reach his pre-injury earnings due to his inability to fully perform the duties of a manager. He was told by Petitioner that his restrictions would have to be lifted in order to return to full management wages. During his employment with Petitioner, and while on off-duty status, Cattaneo temporarily worked at Financial Mortgage Planning from October 1998 to February 1999. Section 440.491, Florida Statutes, creates the re- employment services program and authorizes all recommended programs and expenditures to injured employees. The ultimate goal of that statute in regard to an injured worker is to return the worker to suitable gainful employment. Suitable gainful employment is meant to get an employee as close as possible to the wages he or she was earning at the time of injury and with the permanent physical restrictions resulting from the industrial accident. This includes any benefits, such as medical benefits and commissions, the employee was earning at the time of injury. Suitable gainful employment is defined to mean "employment or self-employment that is reasonably attainable in light of the employee's age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earnings at the time of injury." Section 440.491(1)(g), Florida Statutes. The Division of Workers' Compensation (Division) goes through a process to determine whether an individual merits re- employment services. The process begins with orientation, in which the employee is given a DWC-23, which is the application for re-employment services. The employee is requested to sign the DWC-23 and to have the employer sign a section of the form that says it has no job available either modified or accommodated for the employee at this time. Shortly after orientation the Division requests medical records from the carrier to determine the employer's restrictions. Once all the paperwork is received, one of the Division nurses reviews the medical records from the claimant's physician, the maximum medical improvement date, and permanent restrictions, work history, and education. The Division also does a transferable skills analysis where the claimant's educational background, hobbies, and interest are evaluated to determine the best way to return the injured employee to work. In the effort to return the employee to suitable gainful employment, the Division considers three options. First, the Division determines whether there are any direct placement options for the employee with another employer. If this is not feasible, the next option is on-the-job training. If that is not a viable choice, the file goes to an independent evaluator to determine what, if any, retraining options are available to the employee. Once an injured worker is approved for retraining and education, the insurance carrier is obligated to pay temporary total rehabilitation benefits for at least 26 weeks, with an option to provide an additional 26 weeks for a maximum of 52 weeks of benefits while the injured employee is in retraining. Rehabilitation temporary total disability benefits are calculated by taking 66 2/3 percent of the claimant's average weekly wages 13 weeks prior to the claimant's date of accident. A transferable skills analysis determined what jobs Cattaneo would be able to perform with his current medical restrictions, educational history, and previous work history. Short of retraining, there were no jobs within Cattaneo's restrictions which would return him to his pre-injury wages of $959.00 per week. As a result of Intervenor's high pre-injury earnings and restrictions, it was recommended that Intervenor pursue a career in human resources through the bachelor in human resource management program at the University of Central Florida. Since Cattaneo had already completed his core requirements through his previous education, it would only take him two years to complete the degree. Cattaneo's background in personnel and dealing with people, coupled with the fact that he had already completed his core classes from his previous education indicated that the bachelor of human resource management degree would be an appropriate choice for Cattaneo. A labor market survey for positions utilizing a bachelor's degree in human resources indicated that five or more current positions which utilized the bachelor's degree in human resources management were available within the last six months. Due to a change in the statute in 1996, one of the options for retraining is to place an employee in a baccalaureate program. Cattaneo was approved for retraining in the bachelor's degree program in human resources at the University of Central Florida. The Division argues that Cattaneo fell within the ambit of Section 228.041(22)(a)3., Florida Statutes, due to the degree program's use of current skills in the hospitality industry, abilities, and interests, along with returning him to his pre- injury earnings. The reliance of Section 228.041(22)(a)3., Florida Statutes (Supp. 1996), by Respondent does not contradict its prior admission to Petitioner dated March 31, 2000. Respondent answered the following request for admission: Admit that the University of Central Florida Human Resources Management Program is not a career education program as defined under Section 228.041(a), Florida Statutes (1999). The response: "There's no definition of career education program in Section 228.041(a). However, we admit that the University of Central Florida Human Resources Program is not a career education program as defined under Section 228.041(22)(a)." Petitioner Roadhouse Grill fails to note that Respondent did not admit that the University of Central Florida human resource management program is not a career education program under Section 228.041(22)(a)3., Florida Statutes (1996 Supp.), which was one of the retraining options listed in Chapter 38F-55 of the 1996 Florida Administrative Code and which was in effect at the time of Cattaneo's approval for retraining in the program. The rule and statute section clearly controlled at the time of Cattaneo's approval and the Division was well within its authority to designate such bachelor degree programs for potential retraining of employees. Based on Intervenor's transferable skills analysis, previous work history, previous educational background, and the results of testing done by the independent evaluator, the best way to return Cattaneo to suitable gainful employment is through retraining. Petitioner never informed the Division indicating whether it had suitable employment within Intervenor's restrictions. Returning Cattaneo to work with Roadhouse Grill is not a viable option. Intervenor's employment with Roadhouse Grill would not return him to suitable gainful employment given that he was earning less than half of his pre-injury average weekly earnings of $959.85. Cattaneo was limited to a salary of $400 per week by Roadhouse Grill due to the restrictions limiting his ability to return to full management status and the resulting full management salary. Cattaneo's restrictions prevent him from returning to the occupation of a restaurant manager. Managers in the hospitality industry are more active and hands-on. While categorized as a light-duty position in the Director of Occupational Titles, the manager position encompasses duties beyond a light-duty demand. Given his restrictions of never bending, twisting, and lifting over twenty pounds, Cattaneo could not return to suitable gainful employment in a manager's position. Several factors led to the determination to place Cattaneo in the human resource management program at the University of Central Florida. Intervenor's interest in the area, his experience in the hospitality industry, his experience as a manager and supervising others, and dealing with personnel made placing Cattaneo in the program a reasonable alternative. Further, testing done by Esther Levensohn, as well as the demand for experienced individuals in the hospitality and tourism industry, indicated that the program was a viable alternative for Cattaneo. Petitioner Roadhouse Grill claims that Cattaneo had a job available to him with Petitioner because he was working with Petitioner after his work-related accident. The mere fact that Cattaneo had a job with Roadhouse Grill or any other employer is not enough. It must be established that the job was at or near Intervenor's pre-injury average weekly earnings and within his restrictions. Cattaneo did have the capability to obtain a job at any point. However, the Division's goal, as mandated by statute, is to assist Intervenor in obtaining employment at or near his pre- injury average weekly earnings of $959.00. Petitioner's assertion that Levensohn's recommendation to place Cattaneo in the human resource management program was based purely on subjective considerations is without merit. Levensohn performed various tests to determine Intervenor's aptitudes and transferable skills. Levensohn also went on to state that while interest is considered, the primary bases for placing an employee are transferable skills and results of vocational testing. She further testified that in her opinion as a vocational evaluator, interest in one's work is important to the individual in order to be a good employee. Trey Webb, Regional Director for Roadhouse Grill, failed to show that Roadhouse Grill made a serious effort to accommodate Cattaneo's restrictions. While Webb testified that an assistant manager or general manager position did not require heavy lifting, documentation from Roadhouse Grill's personnel file describes the duties of an assistant manager, which mandate that he "must be able to exert well paced mobility for periods of up to four hours in length and have the ability to lift 10 pounds frequently and up to 50 pounds occasionally. Must have the stamina to work at a minimum of 50 to 60 hours a week." Webb himself acknowledged that managers, in the course of their duties would bend, twist, stoop, squat--all of which are outside Cattaneo's restrictions. In addition, the light-duty position eventually created for Cattaneo did not allow him to earn his pre-injury wages. Cattaneo testified that he was told he could not earn his pre-injury wages unless his restrictions were lifted, enabling him to perform full managerial duties. Finally, the lack of accommodation of Cattaneo's restrictions is illustrated by the fact that he was re-injured after he was initially placed on light-duty while employed with Roadhouse Grill. Dan Dittleberger's testimony also failed to establish that Petitioner Roadhouse Grill accommodated Cattaneo's restrictions. He acknowledged that as a general manager, he himself did heavy lifting and was injured. While lifting a 50- pound bag of potatoes, the same weight requirements given in the assistant manager job description, Dittleberger's condition and restrictions were identical to those of Cattaneo, especially given the fact that Dittleberger did not undergo surgery while Cattaneo had surgery to his back. Petitioner also presented testimony from Lynn Esko, who was accepted as an expert in the field of vocational evaluation. Esko testified that she never interviewed or even met Cattaneo. She also testified that she did not perform any test on Cattaneo or produce a report of any of her findings concerning Cattaneo, but merely conducted a file review of Cattaneo's case based on material submitted to her from Petitioner's counsel. Esko's testimony failed to establish that Cattaneo could return to suitable gainful employment without retraining. Finally, Petitioner failed to show that retraining Cattaneo through the bachelor's degree program in human resource management will not return him to suitable gainful employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered denying the relief requested by Petitioner. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000. COPIES FURNISHED: Wayne Johnson, Esquire DeCiccio, Johnson, Herzfeld and Rubin 652 West Morse Boulevard Winter Park, Florida 32789 Elana J. Jones, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Irvin A. Meyers, Esquire Meyers, Mooney, Stanley and Hollingsworth 17 South Lake Avenue Orlando, Florida 32801-2797 Mary B. Hooks, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 303 Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
Findings Of Fact On or about January 16, 1981, the Petitioner began regular employment with the Probation and Parole Services, Region IV, office of the Department of Corrections. He was hired as a "Probation and Parole Officer (Trainee)." On or about June 15, 1981, the Department advised Petitioner that he had been dismissed from his position with the Department. The dismissal was effective June 18, 1981. At that time, Petitioner had not yet attained permanent status in the Florida Career Service System. He was serving a probationary period. In the notice of dismissal, it was provided, as follows: This action is taken after careful consideration and discussion with your immediate supervisor concerning the following: The falsification of your employment application when applying for employment in the Miami Circuit Office of Probation and Parole Services. Your actions were in violation of Chapter 22A-4.03(2) of the rules of the Department of Administration of the Career Service System. This action is in accordance with the State of Florida Rules and Regulations of the Career Service System Chapter 22A-7.10(7)(H). Since you have been terminated during your trainee status, Chapter 22A- 7.03(4), Florida Personnel Rules and Regulations would apply. Petitioner thereafter filed his "Petition for Section 120.57(1) Formal Administrative Hearing" with the Department of Corrections. In his employment application, Petitioner stated that he had never been convicted of a felony or first degree misdemeanor. On January 10, 1971, Petitioner was convicted of municipal ordinance violations in the city of Pueblo, Colorado. The violations were misdemeanors. Petitioner was fined $50 for "disturbance," and $75 for "assault and battery." He paid the fine and served one-half day in the city jail. The Department contends that on account of these convictions, Petitioner's statement in his employment application was false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Department of Corrections dismissing the petition for formal administrative hearing filed by Heriberto Roman Conti. RECOMMENDED this 10th day of March, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 10th day of March, 1983. COPIES FURNISHED: Sisinio Ortiz Valentin, Esquire Puerto Rico Legal Services Corp. Box 727 Guaynabo, Puerto Rico 00657 Louis A. Vargas, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Mr. Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301
