Findings Of Fact The parties have stipulated to the following facts: The petitioner received payment of $1,920 from Blue Cross/Blue Shield for the purchase of an EBI bone healing system. Blue Cross/Blue Shield also paid $2,000 to EBI Medical Systems, Inc., the provider, for the purchase of the same equipment. The petitioner was not covered by his state health insurance plan at the time of the purchase of the equipment, because he had failed to pay his premiums while he was on leave without pay from his state employment position. The petitioner has not remitted payment for the purchase of the EBI equipment to the respondent agency. The petitioner owes the State of Florida the sum of $1,920.
Recommendation In consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Department of Administration requiring that the petitioner, Gregory Chrishon, pay the Department of Administration, Office of State Employees' Insurance, the sum of $1,920 in accordance with a payment schedule to be agreed upon by the respondent and the petitioner, and to provide that such payment will constitute the total amount due to the respondent from the petitioner arising out of the claim for reimbursement for services received related to the purchase of the subject equipment. DONE and ENTERED this 23rd day of December, 1987, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1987. COPIES FURNISHED: T. Patterson Maney, Esquire, P.A. 123 Staff Drive Post Office Drawer 1628 Fort Walton Beach, Florida 32549 Andrea R. Bateman, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues presented to the Administrative Law Judge for resolution in this case were: Whether it is necessary for Petitioner, Marcella Mika, to go to law school to return to suitable gainful employment. Whether the provisions of Section 440.491, Florida Statutes (1995), apply to Petitioner. Whether the provisions of Florida Administrative Code Rules Chapter 38F-55 apply to Petitioner. Whether Respondent is required to reimburse Petitioner for tuition and the reasonable costs of board and lodging for Petitioner's attendance at Stetson University College of Law.
Findings Of Fact Petitioner's Injury and Recovery On January 24, 1991, Petitioner sustained a compensable injury within the course and scope of her employment with her employer, Community Dialysis Center. Petitioner was diagnosed as sustaining acetabular fracture of the left hip with residual sciatic neuropathy and cervical injury as a result of tripping and falling over a telephone cord. On or about January 7, 1993, Petitioner reached maximum medical improvement with the following physical capabilities: Petitioner can work full-time. Petitioner can drive an automobile with an automatic transmission. Petitioner can drive 30 minutes to an hour at one time and a total of 2-3 hours in a work day. Petitioner can walk 5-10 minutes at one time and a total of 1-2 hours in a work day. Petitioner can stand 5-10 minutes at one time and a total of 1-2 hours in a work day. Petitioner can sit 2-3 hours at one time and a total of 6-8 hours in a work day. Petitioner can lift/carry/push/pull up to twenty pounds (20 lbs.) occasionally up to 1/3 of a work day. Petitioner cannot lift/carry/push/pull more than twenty pounds (20 lbs.). Petitioner can bend frequently for 1/3 to 2/3 of a work day. Petitioner can twist frequently for 1/3 to 2/3 of a work day. Petitioner cannot stoop or squat. Petitioner can kneel occasionally up to 1/3 of a work day. Petitioner cannot crawl. Petitioner cannot climb stairs or ladders. Petitioner can reach above her shoulder constantly for 2/3 or more of the work day. Petitioner can reach across a desk/counter constantly for 2/3 or more of the work day. Petitioner can reach below her waist constantly for 2/3 or more of the work day. Petitioner can grasp/finger with her left and right hand constantly for 2/3 or more of the work day. Petitioner can operate foot controls frequently and up to 1/3 to 2/3 of a work day. Petitioner's Education and Employment History Petitioner has earned an Associate in Applied Science degree in Nursing from Northern Virginia Community College awarded on or about June 9, 1973. From 1973 until her work-related accident on January 24, 1991, Petitioner worked as a registered nurse. Petitioner earned approximately $782.65 weekly and received fringe benefits valued at approximately $41.65 weekly. From 1981 through 1985, Petitioner was employed with Woodbridge Manassas Dialysis Center as a Systems Manager/Charge Nurse. From September 1987 until June 1989, Petitioner was employed as a utilization review specialist with Florida Employers Insurance Service Company earning approximately $23,000 to $27,000 per year. Following her accident, Petitioner returned to work with the Community Dialysis Center at her convenience for 5-6 hours per week earning fourteen dollars ($14.00) per hour from April 15, 1992, until January 31, 1994. At that time, the Community Dialysis Center closed and ceased doing business in Petitioner's area of residence. From September 1994 until May 1996, while pursuing a bachelor of arts degree at the University of South Florida (USF), the Petitioner was employed in a USF work study position, seven to ten hours per week, earning five dollars ($5.00) per hour. Petitioner earned a Bachelor of Arts degree in Interdisciplinary Social Sciences from the University of South Florida awarded in May 1996. Petitioner's Request for Screening On or about February 7, 1995, the District "M," Office of the Judges of Compensation Claims, Judge Joe Willis, entered an Order approving the Petitioner's settlement with her employer, Community Dialysis, and the carrier, Liberty Mutual Insurance Company. Petitioner settled her benefits with Liberty Mutual for $75,000, purportedly pursuant to Section 440.491(6)(b), Florida Statutes (1995). Paragraph 8 of the settlement agreement specifically provided: "The Employee shall also retain the right to apply to the Division of Workers' Compensation for appropriate training and education under Section 440.491(6)(a), Florida Statutes " On or about December 21, 1995, Petitioner submitted a request for screening on form DWC-23 to the Respondent. The Respondent conducted a screening and concluded that Petitioner has transferable skills and therefore it was not necessary to refer Petitioner for a vocational evaluation, nor provide training and education, to return Petitioner to suitable gainful employment. On May 16, 1996, the Petitioner filed a Petition for Hearing. The Petition for Hearing advised that the Petitioner had been accepted by the Stetson University College of Law for the Fall 1996 semester and indicated her desire to pursue a career in law with the assistance of the Workers' Compensation Trust Fund. Petitioner's Law Studies On or about August 1996, Petitioner began to study law at the Stetson University College of Law. Petitioner is currently working towards a Juris Doctor degree. Petitioner has completed two semesters at Stetson University College of Law. The program leading to the Juris Doctor degree consists of five semesters and two summer school sessions. Tuition per semester at Stetson University College of Law is nine-thousand-one-hundred-dollars ($9,100.00), and four- thousand-six-hundred-dollars ($4,600.00) for each summer school session. Stetson University College of law is approved by the American Bar Association, the American Association of Law Schools, and the Southern Association of Colleges and Schools. Petitioner was prohibited by Stetson University College of Law from working during her first year of law school. Petitioner does not intend to work or look for employment while attending Stetson University College of Law. Petitioner's Employability and Need for Retraining Petitioner is forty-seven years old. Petitioner has transferable skills which would allow her to return to suitable gainful employment in nursing within the physical restrictions resulting from her injury. These skills derive not only from her education (Associate in Applied Science degree in Nursing, and Bachelor of Arts degree in Interdisciplinary Sciences), but also from her work history and previous occupation as a Registered Nurse. The Petitioner does not require additional education at Stetson University College of Law to return to suitable gainful employment. There are nursing positions available within Petitioner's physical restrictions for which Petitioner is qualified. The Petitioner's vocational evaluation and vocational rehabilitation expert, Dr. David Heaston, testified that the Petitioner cannot return to the wages she was earning at the time of her accident without rehabilitation or retraining. Dr. Heaston stated that the maximum salary that the Petitioner could return to without any type of rehabilitation or retraining was approximately $28,000 to $30,000. Dr. Heaston also testified that the Petitioner would be able to work within her physical limitations and restrictions as a sole practicing attorney (or under a similar arrangement so that she could maintain could control over her work environment, conditions, and hours). Dr. Heaston testified that, after receiving a Juris Doctor degree at the Stetson University College of Law, the Petitioner would be able to earn approximately $38,000 to $40,000. But that is far from a certainty. Even assuming that a Juris Doctor from Stetson would enable the Petitioner to earn $38,000 to $40,000 in the sole practice of law, it is not clear that those dollars could be earned immediately; licensure will take a certain amount of time after graduation, and it is reasonable to believe that it would take additional time after licensure to build such a sole practice. It is not clear that the Petitioner would be able to achieve earnings as high as her earnings at the time of her accident more quickly by completing law school and starting a law career than she would by seeking employment in the nursing field at this time and working to earn promotions and raises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Division of Workers' Compensation, enter a final order denying the Petitioner's request for payment of her expenses incurred in attending the Stetson University College of Law. RECOMMENDED this 23rd day of October, 1997, at Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1997. COPIES FURNISHED: Christopher B. Young, Esquire Riden, Earle and Kiefner, P.A. 100 Second Avenue South Suite 400, North Tower St. Petersburg, Florida 33701 Michael G. Moore, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue This case concerns the issue of whether the Petitioner should be required to pay back premiums for chiropractic coverage under his family health insurance with the State of Florida Employees Group Health Self Insurance Plan for the period August, 1981, to December, 1982. At the formal hearing, the Petitioner testified on his own behalf and the Respondent called one witness, Ms. Barbara Power. Petitioner had marked for identification eight exhibits. Exhibits 1 through 5 and Exhibit 7 were admitted and Exhibit 6 was withdrawn. Petitioner's Exhibit No. 8 was a copy of Rule 22K-1.20, Florida Administrative Code, and it was marked for identification only. The Respondent had marked for identification 10 exhibits. Respondent offered and had admitted Respondent's Exhibit Nos. 2, 3, 7, 8, 9, and 10. Both the Petitioner and Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. The proposed findings of fact and conclusions of law were considered by the Hearing Officer and to the extent that those proposed findings of fact and conclusions of law are inconsistent with the facts contained herein, they were considered to be not supported by the evidence or were rejected as being unnecessary to the disposition of this cause.
Findings Of Fact In April, 1978, the Petitioner, Owen Sellers, enrolled in the State of Florida Employees Group Health Self Insurance Plan (hereafter referred to as the Plan) . At the time of his enrollment, the Petitioner elected coverage for himself and his eligible dependents, including coverage for chiropractic services. Under the Plan, a portion of the premium for the health insurance coverage is paid by the state agency who employs the individual and the remaining portion is paid by the employee through payroll deduction. In approximately November, 1980, the Petitioner'S spouse also became a full time state employee entitled to the health insurance benefit. As a result of the entitlement of both family members, the state began paying the entire cost of the Plan, except for chiropractic coverage. In order to obtain chiropractic coverage, an employee in 1981 and 1982 was required to pay an additional premium for such coverage. From August, 1981, to December 1, 1982, the Petitioner and his family were covered by the Plan including chiropractic coverage. On or about November 4, 1982, the Petitioner, Owen Sellers, submitted a Change of Information form dropping chiropractic coverage. This change became effective December 1, 1982. At no time prior to this had the Petitioner requested such a change. Because of an error on the part of the employing agency, the premium for chiropractic coverage was not deducted from Mr. Sellers' pay from August, 1981, through October, 1982. The total amount of premiums due for that period for chiropractic coverage is $92.20. The error was discovered in November, 1982, and at that time, the Petitioner was notified of the underpayment. Petitioner refused to pay the $92.20 and requested an administrative hearing. During the time period August, 1981, through October, 1982, the Petitioner did not file a claim for any benefits under the chiropractic coverage. However, claims were submitted for non-chiropractic medical treatment received by the Petitioner or other members of his family.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a Final Order directing the Petitioner to pay the sum of ninety-two dollars and twenty cents ($92.20) within ninety (90) days of entry of the Final Order. In the event Petitioner fails to make timely payment, that Respondent cancel his coverage under the State of Florida Employees Group Health Self Insurance Plan DONE and ENTERED this 3rd day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 3rd day of August, 1983. COPIES FURNISHED: Mr. Owen Sellers 1874 Woodleigh Drive West Jacksonville, Florida 32211 Daniel C. Brown, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Mr. Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether Petitioner abandoned her position of employment with Respondent and resigned from the career service.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was employed the Department of Health and Rehabilitative Services (DHRS) at South Florida State Hospital (SFSH) as a Human Services Worker I, a career service position. Petitioner was absent without authorized leave or explanation on February 6, 7, 8, 9, 10, and 13, 1991. Petitioner was not at work on February 11 and 12, 1991, but those were scheduled days off. On February 13, 1991, David A. Sofferin, Hospital Administrator at SFSH, notified Petitioner by letter that DHRS had no choice but "... to consider you to have abandoned your Human Services Worker I position and resigned from the State of Florida Career Service at South Florida State Hospital. ..." This letter also advised Petitioner of her right to challenge this action. Petitioner wrote DHRS a letter which was received by DHRS on February 25, 1991. In this letter Petitioner admitted that she had violated the personnel rules and asked for a second chance. Petitioner's letter stated that she had been abducted by a boyfriend on February 11, 1990 (sic), 1/ and taken to Bradenton. The letter did not attempt to explain her absences on February 6, 7, 8, 9, and 10. 1991. Petitioner was provided a copy of DHRS' Employee Handbook on April 20, 1990. Petitioner had been previously advised of Respondent's attendance policies and she had been previously reprimanded for failing to adhere to those policies. The following is found on page 13 of the Employee Handbook under the paragraph entitled "Absences": If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absences without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. (Emphasis added.) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in pertinent part, as follows: An employee who is without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the career service . ... . The foregoing rule creates a rebuttable presumption. DHRS has established that Petitioner was absent without authorized leave so that she is rebuttably presumed to have abandoned her position of employment and to have resigned from the career service. Petitioner has failed to rebut that presumption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner, Carol Wheeler, has abandoned her position of employment with the Department of Health and Rehabilitative Services and which further finds that she has resigned from the career service. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of November, 1991. CLAUDE B. ARRINGTON 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 13th day of November, 1991.
Findings Of Fact In December of 1985, the Petitioner and his dependents were covered by the State Employees Group Health Self Insurance Plan. Robert S. Coughlin, the Petitioner's nineteen-year-old dependent, was hospitalized in an out-of-state hospital from December 24, 1985, to December 26, 1985. The total expense for the hospitalization was $935.00. A claim for insurance benefits to cover the expense was received by the Insurance Plan administrator on August 10, 1987. The claim was filed by the hospital on behalf of the insured dependent, Robert S. Coughlin. The administrator for the Respondent refused to pay the claim as it was not submitted within the sixteen-month period set forth in the contract of insurance. The contract, which is referred to as the benefit document, contains a policy exclusion which provides that no payment shall be made under the Plan for claims made after the expiration of the sixteen-month time limit which begins to run from the date medical expenses are incurred. The hospital did not timely file the claim because a mix-up had occurred during the hospital admission concerning the patient's insurance coverage. The dependent, Robert S. Coughlin, was unconscious during his emergency out-of-state hospital admission. Either the hospital personnel or the dependent's friends mistakenly used the information on another insurance card located in the patient's wallet as the applicable insurance. As the hospital directly filed the claim with the first insurance company, processing delays within the first company caused the hospital to miss the filing deadline for the actual insurance benefits. The Petitioner, Charles R. Coughlin, was not made aware of the situation until after the sixteen-month dime period had expired, and the claim for payment had been refused by the Respondent.
The Issue Whether Petitioner, Karen L. Ehlers was wrongfully terminated from her position with Respondent, Florida Employers Insurance Service Corporation because of her handicap or perceived handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: FEISCO is a Florida corporation which is in the business of providing insurance-related services to insurance companies, self-insurer funds and self- insured employers, and is an employer as that term is defined in Section 760.02(6), Florida Statutes. FEISCO has a department called Information Services (formerly known as Management Information Services) which is responsible for providing the computer information systems within FEISCO and maintaining the many applications and data bases used by other FEISCO departments. The Petitioner, Karen L. Ehlers, was employed by FEISCO from July 17, 1989, to November 15, 1990, as a computer programmer in the Information Services department. The minimum education requirement for the position of computer programmer was two years' computer science education or equivalent Micro/Mini exposure. Petitioner holds a bachelor's degree in mathematics with an emphasis in computer science. As a computer programmer, Petitioner's job duties included writing computer programs, designed by analysts, using several computer languages and working and communicating with analysts and program users to correct design problems to assure the final program fit the user's needs. At all times during her employment with FEISCO, Petitioner was supervised by Joan Zare, Production Supervisor, Information Services department. Zare was responsible for overseeing Petitioner's training during her probationary period and for all formal evaluations of Petitioner's work. John Keegan, Manager of FEISCO's Information Services department, was Zare's immediate supervisor at all times relevant to this proceeding. Keegan reviewed and approved the written evaluations of Petitioner by Zare, but did not review Petitioner's work. Keegan did not have any direct knowledge of Petitioner's competence, and did not interview either Zare or Petitioner regarding the evaluations. Jim Venza, Director of Information Services for FEISCO, was Keegan's immediate supervisor at all times relevant to this proceeding. Venza had no direct knowledge of Petitioner's work performance. Upon being hired by FEISCO, Petitioner was subject to a ninety-day probationary period. After this probationary period (July 7, 1989 to October 13, 1989), Zare gave Petitioner a positive evaluation which included ratings of "Achieves" in all performance standards. Zare viewed Petitioner's overall performance during her probationary period as satisfactory and recommended Petitioner for full employee status. In January, 1990, Petitioner received a salary adjustment upward from $20,000.00 to $20,500.00 In June, 1990, Petitioner received a congratulatory memorandum and a $50.00 bonus for successfully completing a Property and Liability Insurance course and examination. FEISCO encouraged its employees to take course work to increase their knowledge of insurance and to join Toastmasters, a group organized to help its members improve self-confidence and public speaking skills. Petitioner participated in outsider course work and Toastmasters. On July 4, 1990, Petitioner was diagnosed as having chronic fatigue syndrome. This condition did not restrict Petitioner in her job as a computer programmer or effect her work negatively. On July 9, 1990, Petitioner advised Zare that she had chronic fatigue syndrome. On July 17, 1990, Zare gave Petitioner her first annual performance evaluation. Although Petitioner had experienced some problems with her work during the period after her probationary performance evaluation, Zare felt that her job performance in the latter part of the evaluation period indicated that Petitioner had overcome those problems. Zare rated the Petitioner as achieving at or above the standards expected of her in all areas of her job performance. In one area of work Petitioner was rated as "Exceeds". While Zare considered Petitioner as performing satisfactory at the time of her first annual performance evaluation, it was understood between Petitioner and Zare that continued improvement by the Petitioner would be necessary in order for Petitioner to maintain a satisfactory performance rating. On October 15, 1990, Keegan and Bob Burgoon, a program analyst, assigned Petitioner to the extra duty of Problem Manager. The duties of Problem Manager involved reviewing and solving problems with programs which were called in by users, and required being on-call to assist operations during off-hours. The job of Problem Manager had previously been rotated among analysts and not assigned to programmers. However, the job of Problem Manager was assigned to Petitioner because Keegan and Burgoon felt that she could handle the job. On October 16, 1990, Petitioner advised Keegan of her previously diagnosed medical condition, and presented Keegan with a written statement from her doctor recommending that Petitioner restrict herself to a forty-hour week. Petitioner advised Keegan that she still wanted to try the Problem Manager's job. However, Keegan decided not to "second guess" the doctor and removed Petitioner from the Problem Manager duties. There is insufficient evidence to establish facts to show that Keegan at any time, including the meeting with Petitioner on October 15, 1990, advised the Petitioner that her medical condition would adversely affect her job with FEISCO. Petitioner became concerned about her job after the meeting with Keegan on October 15, 1990 and discussed this matter with Frances White in personnel on October 22, 1990. Petitioner also shared these same concerns about her job with Zare on October 23, 1990. At this meeting with Zare there was no reference to Petitioner's job performance by Zare. On this same day, Zare met with Venza and Keegan together and with White individually in regard to Petitioner's concerns. On October 24, 1990, Petitioner met with Zare and White. At this meeting, Zare and Petitioner discussed concerns about Petitioner's job performance. They also discussed Zare's intention to develop a detailed list of skills necessary for the satisfactory performance of the programmer position which would be used to revise the current programmer position description, and would involve a self-assessment by all programmers. The purpose of the self- assessment was to identify the areas in which the programmers felt they needed improvement. After each programmer finished their respective self-assessment, Zare reviewed the self-assessment individually with each programmer. In reviewing Petitioner's self-assessment, Zare concluded that Petitioner had overrated her abilities in several areas. After Zare concluded the review of the individual self-assessments with each programmer, Zare prepared a memorandum of her findings to all programmers. The memorandum outlined a proposed training project that was to be given in conjunction with the individual self-assessment. As with other programmers, Petitioner was assigned a series of projects to be completed as part of this training. As each part of the project was completed, Zare orally evaluated the Petitioner's performance and tested the program and reviewed the coding used by Petitioner. Errors were pointed out to Petitioner and she was given an opportunity to correct the errors. On November 14, 1990, after completion of the entire project, Zare reviewed Petitioner's work and prepared a written appraisal of Petitioner's performance on the project. The written appraisal described Petitioner's shortcomings but also included some positive criticism. Zare concluded that Petitioner's work on the project was below the expected standard. Basically, the written appraisal was contradictory to all performance evaluations previously given to Petitioner by Zare. The programmers, other than Petitioner and Chris Brady, were unable to begin work on the project due to prior work commitments before Zare was transferred to another department. After Zare was transferred this project was terminated. While Zare did verbally counsel Brady about his work, Brady did not receive a written appraisal by Zare before her transfer. Therefore, Petitioner was the only programmer to receive a written appraisal of her work on the project. On November 14, 1990 when Petitioner met with Zare to review Zare's written appraisal of her performance, the Petitioner became upset and defensive. Therefore, Zare suggested that the Petitioner review the appraisal overnight and come back the next day to discuss the appraisal. Petitioner did not return to discuss the appraisal with Zare. Petitioner's failure to return and discuss the appraisal with Zare resulted in Zare concluding that Petitioner was unwilling to accept constructive criticism of her performance. This precluded Zare from working with Petitioner to attain any progress. Therefore, Zare concluded that nothing could be accomplished in attempting to work with Petitioner in the future. Therefore, Zare recommended to Keegan and Venza that Petitioner be terminated. Although Zare considered Petitioner's work performance to be below standards, Zare would not have recommended Petitioner's termination had it not been for Petitioner's very negative reaction and her unwillingness to discuss the appraisal with Zare. Petitioner's employment with FEISCO was involuntarily terminated on November 15, 1990. Between being terminated with FEISCO and being re-employed, Petitioner lost ten weeks of pay at $418.00 per week, an annual bonus equal to one month's pay and other monetary damages in the form of lost medical benefits. Although FEISCO had several employees that suffered a medical condition during times relevant to this proceeding, there was no evidence that FEISCO discriminated against any of these employees because of their medical condition. There was insufficient evidence to establish facts to show that FEISCO discriminated against Petitioner because of her medical condition, chronic fatigue syndrome, when FEISCO terminated Petitioner on November 15, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Karen Ehlers, was not discharged due to her handicap or perceived handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 26th day of May, 1993, at Tallahassee, Florida. WILLIAM R. CAVE 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 26th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3782 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 31 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony, with the exception of the second sentence of Proposed Finding of Fact 30 which is rejected as not being supported by competent substantial evidence in the record. Respondent's Proposed Findings of Fact. Proposed Findings of Fact 1 through 18 and 22 through 55 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial. Proposed Findings of Fact 19 through 21 are rejected as not being supported by competent substantial evidence in the record. COPIES FURNISHED: Snowden S. Mowry, Esquire KANETSKY, MOOR & DEBOER, P. A. Post Office Box 1767 Venice, Florida 34284-1767 David J. Stefany, Esquire HOGG, ALLEN, NORTON & BLUER, P. A. S. Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Sharon Moultry, Clerk Human Relations Commission John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact At all times pertinent to the issues here, the Petitioner, Carol C. Bledsoe, was a part-time employee of the University of Central Florida (U.C.F.) U.C.F. is an agency of the State of Florida, whose employees are eligible for participation in the State of Florida Employees Group Health Self-Insurance Plan (Plan), administered by Respondent, D.O.A. On December 1, 1980, Petitioner applied for full family coverage under the Plan, with coverage to be effective January 1, 1981. The application form executed by Petitioner was submitted to the Benefits Coordinator at the personnel office at U.C.F. At the time of submission, that portion of the form reserved for "payroll clerk use only" was left blank. The Benefits Coordinator, after checking the form to insure all required information was supplied by the applicant, Petitioner, forwarded it to the payroll department at U.C.F. It was at that office that the payroll clerk inserted an erroneous deduction code on December 2, 1980. The incorrect deduction code inserted was "0.2." the proper deduction code which should have been inserted to reflect Petitioner's status was "42." Though the current Benefits Coordinator indicates an applicant who is a part-time employee, such as Petitioner here, is given, at the time application for coverage is made, a form to show what the correct deduction for the requested coverage will be, this calculation is made by the Benefits Coordinator for the employee based on a formula which calls for a different rate for part- time employees. A part-time employee's contribution to the premium (the amount deducted) is higher than that of a full-time employee. The current coordinator, Ms. Evans, cannot state that Petitioner got the described form when she applied, and Petitioner denies having received it. There is no evidence to show Petitioner received any indication of what the deduction should or would be until the deductions from her pay began on January 9, 1981, with the deduction for the pay period December 19, 1980 - January 1, 1981. At that time, the deduction made was $14.37. The corrected deduction should have been $19.52 per pay period. Here, the deduction from Petitioner's pay was calculated on the erroneous basis that she was a full-time employee, thereby resulting in a smaller deduction that was correct. This insufficient deduction continued until the discrepancy was discovered due to an audit in March, 1983. The parties stipulate that the total shortage in issue is $345.78. During the approximately 2 1/4 years that the improper deduction was being withheld from Petitioner's pay each pay period, Petitioner was fully covered under the full family coverage plan. During this period, she filed only one claim -- a small one for an injury to her son -- and was paid the amount claimed. During this same period, she underwent several inquiries into her pay, instigated by her, to correct other inaccuracies in her pay. At no time prior to the March, 1983 audit was the incorrect health insurance deduction discovered, and Petitioner had no indication that amount being deducted for that purpose was incorrect. From an examination of her biweekly employee's earning statement, there was no way she could have known her pay was in error in this particular. Several factors contributed to the error. One of these was that personnel in the payroll department of U.C.F. were doing things wrong. Another was that Petitioner was not a typical employee, and her situation required specialized handling by personnel and payroll which was not given. None of these factors, however, was within the control of the Petitioner. Changes made in the procedures followed within the agency as a result of a reorganization in January, 1982 -- made as the result of the recognition of numerous payroll problems over several months involving numerous other employees on the insurance plan -- should prevent recurrence of Petitioner's situation. However, Petitioner was in no way responsible for the creating of her situation and acted in good faith throughout the entire period. When she was notified of the error, she immediately took the appropriate steps to correct it and now pays the appropriate premium for the desired coverage. When an error is discovered, as happened here, the employee is notified that he or she has overpaid and the employee is reimbursed. On the other hand, if the employee has underpaid, as here, the employee is notified of the liability and advised of various settlement systems. If the employee desires to pay other than in one lump sum, periodic payments can be arranged in an amount not less than 3% of the employee's salary for not more than 24 months. The insurance office, under Respondent D.O.A., contends it has no authority to waive the reimbursement of the shortage and states that if Petitioner does not make up the shortage, here coverage will be terminated. If that happens, she will not be eligible to reenroll until the shortage is reimbursed. Under the insurance plan in question here, the State is a self-insurer. Petitioner's contribution and that of her agency goes into a trust fund administered by Respondent and is used to pay benefits through Blue Cross, which processes the claims. Since in this case, Petitioner paid less than she should have as a part-time employee, the U.C.F. paid more than its appropriate contribution for her coverage.
Recommendation That Petitioner, Carol C. Bledsoe, pay the underpayment of $345.78.
Findings Of Fact The Department of Professional Regulation, Board of Dentistry, filed an Administrative Complaint in DPR Case Number 00-52375 against the Petitioner's license to practice dentistry on May 13, 1986. The Petitioner did not dispute the facts alleged in the Administrative Complaint and the Board of Dentistry held an informal hearing, pursuant to Section 120.57(2), Florida Statutes, on September 13, 1986. On October 2, 1986, the Board of Dentistry issued a Final Order suspending the Petitioner from the remunerative practice of dentistry for a period of ten (10) years and advised the Petitioner of his right to appeal the Board's Final Order. The Petitioner did not appeal the October 2, 1986 Final Order of the Board of Dentistry. On or about May 1, 1987, and/or May 2, 1987, the Board of Dentistry met to consider correspondence from the Petitioner seeking a determination of compliance with the Board's October 2, 1986 Final Order for his proposal to do volunteer community service dental work at "St. Catherine Laboure Manor" in Jacksonville, Florida. The Board of Dentistry requested further clarification from the Petitioner and took no further action with respect to the Petitioner's request. On June 10, 1987, the Board of Dentistry met to consider the Petitioner's request to allow him to provide volunteer community service dental work under indirect supervision, and on June 26, 1987, the Board of Dentistry issued an Order Denying the Modification. The Petitioner did not appeal the June 26, 1987, Order of the Board of Dentistry. On or about March 9, 1988, the Petitioner submitted his second request to the Board of Dentistry for modification of its October 2, 1986 Final Order. The Petitioner identified the following reasons as why the Board of Dentistry should grant his request: My obligation to the people of the State of Florida was fully satisfied on September 28, 1987 (enc.). My civil rights were restored on February 25, 1988 (enc.). The fine imposed by the Board of Professional Regulation ($2000.00) has been paid in full. Since July 1987 I have been treating patients in St. Catherine Laboure' Manor under the direct supervision of Owen Boales D.D.S., as required by order of the Board (enc.). I am currently 64 years of age and need gainful employment. My wife and I are currently surviving primary on her earnings as an employee of the Florida Community College at Jacksonville. My mentally disabled son was admitted to The Northeast Florida State Hospital approximately one month after my arrest. His condition would be benefited by whatever personal attention and care my wife and I may be able to provide. The ten year suspension order now in effect is tantamount to lifetime punishment. This long suspension does not benefit the public but severely obstructs rehabilitative effort. It minimizes the opportunities for professional public service and prevents professional employment. It reduces the available options to demonstrate reliability and observable conformity to the profession's ethical standards. It will continue to impede all my effort to becoming a self sustaining productive and worthy member of society. On April 23, 1988, the Board of Dentistry met to consider the Petitioner's second request for modification of the Board's October 2, 1986 Final Order. After discussion and consideration of the evidence and arguments of the Petitioner, the Board of Dentistry on July 13, 1988, issued an Order Denying Modification of Final Order. The Petitioner did not appeal the Board's July 13, 1988 Order denying his second request. On or about June 5, 1990, the Petitioner through his attorney submitted his third request to the Board of Dentistry for a modification of the October 2, 1986 Final Order. The Petitioner's third Motion for Modification of Final Order submitted to the Board on or about June 5, 1990, did not contain information or circumstances that were substantially different from those known to the Board at the time the Final Order of October 2, 1986, was entered, at the time the first order was entered denying the modification request, or that were known to the Board when it had previously heard and denied Petitioner's second request in 1988. On July 28, 1990, the Board of Dentistry met to consider the Petitioner's third request for modification of the October 2, 1986 Final Order. After discussion of the parties and upon the advice of legal counsel, the Board of Dentistry on August 13, 1990, issued an Order Denying Modification of Final Order. The Petitioner timely sought an appeal of the Board's August 13, 1990 Order in the First District Court of Appeal, Case Number 90-2369. On September 4, 1991, the First District Court of Appeal issued its opinion where they found the August 13, 1990 Final Order to be ambiguous, vacated the August 13th Final Order, and remanded the case back to the Board of Dentistry for further proceedings. On October 8, 1991, the First District Court of Appeal issued its Mandate to the Board of Dentistry to hold further proceedings consistent with the Court's opinion. On or about October 15, 1991, the Petitioner submitted an Amended Motion for Modification alleging for the first time that "there had been material changes in circumstances since his suspension was entered and/or since the previous rulings as to his suspension." On November 8, 1991, the Board of Dentistry met to consider the Petitioner's third request for modification of the Board's October 2, 1986 Final Order, the Amended Motion for Modification of Final Order, and the Opinion and Mandate of the First District Court of Appeal. After discussion and consideration of the Petitioner's requests for modification, the Opinion and Mandate of the First District Court of Appeal, and the evidence presented, on December 12, 1991, the Board of Dentistry issued a Final Order on Remand granting the Petitioner's Amended Motion for Modification of the Board's October 2, 1986 Final Order. The Petitioner is a sole proprietor of a professional practice of dentistry. His principal office and domicile are located in Jacksonville, Florida. He has fewer than twenty-five (25) full-time employees, and his net worth, at the time of filing, was less than two million ($2,000,000) dollars. The Petitioner incurred appellate attorney's fees in the amount of $8,990.00 and costs in the amount of $323.92. The Respondent did not dispute the reasonableness of the fees and costs in this case.
