Findings Of Fact Respondent, Edward Willison Carroll, III, is currently eligible for licensure and is licensed in this state as a Credit Life, including Credit Disability Insurance Agent; General Lines - Property, Casualty, Surety and Miscellaneous Lines Agent; General Lines - Motor Vehicle Physical Damage and Mechanical Breakdown Agent; Ordinary Life, including Health Insurance Agent; Health Insurance Agent; and Automobile and Inspection and Warranty Association Salesman. On March 10, 1980, respondent filed a verified application with petitioner for examination as a General Lines Agent (Property, Casualty, and Miscellaneous Lines) . Question number 13 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. On May 28, 1982, respondent filed a verified application with petitioner for examination as an Ordinary Life including Disability Agent. Question number 15 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. Respondent's answers to question 13 on the March 10, 1980, application and question 15 on the March 28, 1982, application were false. On December 11, 1970, the State Attorney for the Second Judicial Circuit of the State of Florida, filed an information with the circuit court which charged that respondent did on December 3, 1970, in Leon County, Florida ... knowingly commit a lewd or lascivious act in the presence of Alice Leigh Divita, a female child under the age of fourteen years, to-wit: of the age of six years, without intent to commit rape upon said child, contrary to Section 800.04, F.S. On March 9, 1971, respondent entered a plea of guilty to the crime of fondling, as charged in the information. The court withheld adjudication of guilty and imposition of sentence, and placed respondent on probation for a period of three years. At hearing, respondent conceded that he had been charged with the aforementioned felony. He averred, however, that his failure to disclose such charge on his applications was not intended to be deceitful but was premised on his belief that he could properly answer no to such inquiries because adjudication of guilty had been withheld. While respondent may reasonably have believed that he could respond in the negative to an inquiry concerning felony convictions, his contention that he held an honest belief that he could also respond in the negative to inquiries about whether the had ever been charged with a felony is not persuasive. But for the foregoing charge, respondent has not been charged or convicted of any other felonies. Nor, has the respondent been shown to have engaged in any improprieties as an insurance agent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's licensure and eligibility for licensure for three months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2 & 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 5. 7 & 8 Addressed in paragraph 6. 9 & 10. Addressed in paragraphs 7 and 8. 11. Addressed in paragraph 9. 12-14. Rejected as not relevant. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services 413-B Larson Building Tallahassee, Florida 32399-0300 Thomas L. Neilson, Esquire 105 West Fifth Avenue Tallahassee, Florida 32303 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in these consolidated cases was issued on November 17, 2010, setting the hearing for January 24 and 25, 2011, in Tallahassee, Florida. The hearing was scheduled to commence at 9:30 a.m. on January 24, 2011. Also on November 17, 2010, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On January 19, 2011, Petitioner filed a letter at the Division of Administrative Hearings requesting that the hearing be delayed until after February 18, 2011, due to various appointments she had made that conflicted with the hearing dates. This letter indicated that Petitioner was aware of the scheduled hearing dates. By order dated January 20, 2011, the undersigned declined Petitioner's request for failure to state grounds sufficient to warrant a continuance over the objection of Respondent. Several attempts to reach Petitioner by telephone were unavailing. At 9:30 a.m. on January 24, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:45 a.m. Counsel for Respondent entered her appearance and requested the entry of a recommended order of dismissal. The hearing was then adjourned. As of the date of this recommended order, Petitioner has not contacted the Division of Administrative Hearings, in writing or by telephone, to explain her failure to appear at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 26th day of January, 2011. COPIES FURNISHED: Kimberly D. Dotson 825 Briandav Street Tallahassee, Florida 32305 Kim M. Fluharty-Denson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary Kowalski Department of Financial Services Human Resource 200 East Gaines Street, Suite 112 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
Findings Of Fact Introduction At all times relevant hereto, respondent, Tony L. Brooks, Jr.; was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-9720 on December 19, 1973. When the alleged events herein occurred, Brooks was employed at Plantation Key, Florida, as a deputy sheriff by the Monroe County Sheriff's Department (Department). In all, he has served as a law enforcement officer for some ten years. Respondent's marriage with one Brenda Joyce Brooks was dissolved by final judgment of dissolution of marriage entered on September 17, 1982 in the circuit court in and for Seminole County, Florida. According to the judgment, respondent was in arrears for child support payments previously ordered by the Court, and was directed to pay that amount within ninety days, or appear at a contempt hearing in Sanford, Florida on December 10, 1982. Respondent appeared at the contempt hearing on December 10, 1982, and was represented by counsel. He was required to appear since he had not paid all previously ordered child support payments and still owed some $687.17 as of the date of the hearing. A certified copy of the transcript of that hearing has been received in evidence as petitioner's exhibit 1. At the hearing, respondent was placed under oath and gave the following relevant testimony to the circuit judge to show cause why he should not be held in contempt: Q. (By Brooks' counsel) Okay, were you recently injured in the line of duty? A. Yes, sir. Q. Could you please tell us approximately when that happened? A. Yes, sir. It was in October. Myself, some other deputies, were making an arrest on several, several subjects, and in the course of the incident there, one of the individuals started to plunge headlong down a flight of steps, I reached over, grabbed the individual, in so doing pulling the weight of his body back up, tore a couple muscles in my back and strained the lower spine area. * * * Q. I'd like to show you a document, a discharge bill from Mariner's Hospital in Tavernier, Florida; do you recognize that? A. Yes, sir. This is a bill for two, two physical therapy sessions I've been required to take at the hospital, sir. Q. Do you have any other medical bills or documents from an attending physician during the course of this injury? A. From day one through . . . throughout the . . . until the present date I've been required to go to that place for physical therapy on a daily basis I also gave you a document there which shows that because I'm still on a probationer (sic) status down there, I do not have--what you call it? Q. Insurance? A. Yes, the insurance coverage. So this stuff I've been having to pay myself and wait on reimbursement; Q. Okay. So for approximately seven or eight weeks you were on workmen's comp? A. It wasn't . . . It wasn't really workmen's comp, they put me on reduced salary. Q. Okay. A. They are trying to get this reimbursed through workmen's comp. Q. How much was your salary reduced at Monroe County Sheriff's Office? A. From-- Q. Tell me whether you're giving net or gross figures. Before or after deductions? A. The gross figure was reduced from two hundred forty dollars, approximately two hundred forty dollars a week. Q. That's before deductions. A. Yes, sir. Q. Okay. To? A. To about a hundred and sixty-six. Q. So it was reduced by approximately a third, a little bit less than a third? A. Yes, sir. Q. Okay. Has that ever been reinstated, the full pay? I was told by Sergeant Warwick that the . . . I should be getting the reimbursement stuff from Workmen's Comp as far as the hospital expenses go and my salary should go back to its regular status this ending pay period, which will be the 15th, 15th of this month. (Emphasis added) In conjunction with the contempt hearing respondent's counsel submitted a financial affidavit to the Court reflecting respondent's pay status. This was reviewed by Brooks' ex-wife's counsel (Leon Cheeks) who contacted Brooks' employer requesting confirmation of the information contained therein. After being advised by letter dated December 21, 1982 that Brooks "received full compensation" after he suffered a job-related injury, Cheeks again contacted the Department and brought to its attention the testimony given by Brooks at the contempt hearing. The Department internal affairs chief (Mike Young) thereafter flew to Sanford and interviewed Cheeks. He also examined the transcript of hearing and noted what he perceived to be several "discrepancies" in Brooks' sworn testimony given at the hearing. After confronting Brooks with this information, and taking his statement, Young turned the file over to the State Attorney's Office in Sanford to determine if perjury had been committed. That office declined to prosecute Brooks. Nonetheless, Young concluded perjury had been committed, and the matter was then referred to petitioner. That prompted the issuance of the original and amended administrative complaints. In the amended complaint, petitioner alleges that the underscored testimony is false and constitutes grounds for revoking Brooks' certification. Other than this isolated incident, there is no evidence of any other blemish on Brooks' record as a law enforcement officer. There was also no evidence presented by either party concerning Brooks' honesty, trustworthiness or any other indicia of "good moral character." The Arrest On the evening of October 1, 1982, Monroe County deputy Jerry Moore received a call concerning a disturbance at a residence on Annie Bonnie Drive in Key Largo. Respondent was called to assist Moore and arrived by separate car. The two deputies climbed the stairs to a second floor apartment, entered, and found a white 21 year old female named Tammy Floyd "hogtied" on the floor. Her feet were bound together, her hands tied behind her back, and her step-father was lying on top of her in the kitchen area. She also had a black eye. It turned out that Tammy had a history of mental problems, had come home intoxicated, and after she went "berserk," the stepfather had tied her up. In the process of doing so, he administered the black eye. When she promised to calm down, the deputies untied Tammy. However, she again became belligerent and went into a "rage," and Moore and Brooks handcuffed her and began carrying her down the stairs to a squad car. Halfway down the stairs, Brooks volunteered to carry her by himself, and he hauled Tammy the rest of the way to his car. The testimony is conflicting, but it is found that a third deputy arrived by this time, and he assisted Brooks in placing Tammy in a squad car. She was then carried to the local jail. During the incident, Brooks injured his back and he now has a workman's compensation claim pending against Monroe County. The amended complaint alleges that Brooks' statement that he and "some other deputies" were making an arrest on "several subjects" was false since Brooks and Moore were the only two deputies present, and they arrested only a single subject, Tammy. However, Brooks was aware of several prior complaints filed by Tammy with the Department prior to October 1 against the step-father for abusive treatment. Because of this, he was under the impression that the step-father may have also been arrested later on that evening. Finally, it is found that three deputies were on the scene, thereby justifying the use of the words "other deputies" by Brooks. Reduction in Pay Brooks testified at the contempt hearing that, because of his injury, his employer had "put (him) on reduced salary" since the accident on October 1, 1982 for at least a seven to eight week period immediately thereafter. He specifically acknowledged that his salary had been reduced by one- third. According to Department pay records, Brooks received full pay ($757.92 every two weeks) during the period October, November and December, 1982, even though he had suffered a work- related injury on October 1, 1982. Brooks received, endorsed and cashed each of his pay checks during that period. Brooks was also entitled to receive a workman's compensation check during the same period but that check was turned over to his employer since he was already receiving full pay. Brooks contends petitioner has misinterpreted the above testimony. He estimated that his out-of-pocket expenses due to the injury were approximately one-third of his pay, and because this constituted an effective pay reduction, he asserts his testimony was not false. He also stated that his attorney had told the judge prior to going on the record what Brooks was going to say, and his basis for doing so. However, this was not corroborated by any other testimony, and it is hereby rejected as not being credible. Brooks also points out that he was taking medication at the time of the hearing and had driven all night from Tavanier to Sanford to attend the same. He conceded that he may have misstated some facts, but if he did, it was due to fatigue and medication. Nonetheless, it is found that the statements concerning a reduction in pay were not an accurate reflection of his true compensation. Physical Therapy Sessions and Insurance Brooks testified under oath at the contempt hearing that he was attending physical therapy sessions from "day one until the present date . . . on a daily basis." Such testimony was given in response to a question concerning Brooks' medical bills. The only inference to be drawn from this is that Brooks was attempting to convince the judge that he had incurred medical expenses for daily therapy treatments thereby causing a deterioration in his financial condition. However, the only evidence of attendance at these sessions was a single receipt for sessions on November 8 and 9, 1982 at Mariner's Hospital in Tavanier, Florida. Brooks also testified at the contempt hearing that he had no insurance coverage when his injury occurred implying that he was personally responsible for paying all medical bills until he was reimbursed. According to Brooks' testimony at the hearing, this was because he was on a probationary status with the Department. Testimony by the Department's personnel officer in this case established, however, that an employee is covered by workman's compensation benefits from the initial date of employment regardless of whether his status is probationary or permanent. Therefore, Brooks was covered by workman's compensation benefits prior to and after the occurrence of his injury. However, the record is unclear as to whether medical bills are covered by such benefits, and if so, are paid directly by the insurance carrier, or whether the insured must personally pay the bills and then seek reimbursement from the carrier. If the latter is true, then Brooks would have paid the medical bills initially and then filed for reimbursement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint be DISMISSED, with prejudice. DONE and ORDERED this 16th day of October, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of October, 1985.
The Issue The issue in this case is whether the Florida Commission on Human Relations (FCHR) should grant the Petition for Relief, charging the Respondent with discrimination based on handicap (back and knee injuries), in violation of Section 760.10, Fla. Stat. (1989).
Findings Of Fact The Petitioner, Ulysess S. Uqdah, is a carpenter. He has injured his back on-the-job with a construction company other than the Respondent in 1981 or 1982 and, with another construction company other than the Respondent, in early 1984. On one of those occasions, the Petitioner received worker compensation. On both occasions, after a period of time off, the Respondent returned to work with the same employer without any continuing difficulties. In 1984 or 1985, while working for a construction company other than the Respondent, the Petitioner hurt his knee while on the job. He took time off, received worker compensation, and ultimately required surgery. After recuperating from the surgery, the Petitioner was able to return to work. Other than occasional recurring pain, the Petitioner does not worry about the knee, and his knee does not significantly hamper him in the performance of his work as a carpenter. On or about December 12, 1986, the Petitioner was hired by the Respondent, Pace Construction Corporation of Georgia. The Respondent was aware of the Petitioner's prior injuries. He disclosed them on his written employment application. The application also disclosed that the Petitioner had received worker compensation. The Petitioner worked for the Respondent until June 17, 1988, when he was terminated because of the Respondent's lack of work. During his employment with the Respondent, the back and knee injuries did not cause the Petitioner any difficulties in performing his work, and his work was satisfactory. In fact, the Separation Notice states: "Ulysess has proved himself to be a very good worker and gives 100% at all times. He has leadership qualities and shows his concern for the success of the project." The Respondent's regular practice was 1/ to box up all paperwork relating to a construction project when it is completed and put the paperwork in storage. The paperwork from finished projects was stored off the premises of the main business office and was not accessible to the Respondent for reference in connection with subsequent construction projects. 2/ In approximately late 1989 or early 1990, when the Respondent started a major new project in Tampa, the Petitioner applied to again work as a carpenter for the Respondent. His application was held, along with others applying for work, until the Respondent was ready to begin hiring. In approximately March, 1990, the project superintendent reviewed the applications, selected those he wanted to hire, and forwarded those applications to the Respondent's business office for processing. The Petitioner's application was among those selected. In accordance with the Respondent's normal practices, arrangements were made to have the Petitioner and the other chosen applicants undergo a drug and physical examination. The Petitioner's examinations took place on or about March 16, 1990. Meanwhile, the Respondent's personnel office verified the answers given by the Petitioner and the other chosen applicants to the question on the employment application asking whether the applicant had ever received worker compensation. The Respondent located a worker compensation claim report from April, 1989, which noted as to the Petitioner: "10/13/83 West Coast Form. LT- Back" and "4/24/86 Johnson Glen LT-Left leg/ft." 3/ This indicated that the Petitioner had received worker compensation on those two occasions. The Respondent's personnel office forwarded the worker compensation report to the project superintendent, who told the Petitioner that he would not be hired. The Petitioner understood the superintendent to say that the Petitioner was not being hired because of his history of on-the-job injuries and because it would not be in the best interest of the Respondent to hire the Petitioner. The Petitioner understood the superintendent to mean that the prior injuries, which had resulted in worker compensation, would handicap the Petitioner in his ability to perform his assigned duties as carpenter and that the Respondent did not want to have to pay worker compensation if the Petitioner reinjured himself. The superintendent testified that he told the Petitioner he was not being hired because he had falsified his answer to the question on the employment application concerning worker compensation history. It was the Respondent's company policy not to hire any applicant who failed to disclose on his employment application the receipt of worker compensation in the past. This is because a special disability fund would pay worker compensation for such employees only if the receipt of worker compensation in the past was disclosed on the written employment application. The Petitioner claims that he in fact disclosed on his application his receipt of worker compensation in the past and that the Respondent's claim to the contrary is a pretext for intentional discrimination on the basis of a perceived handicap. The Respondent's evidence was that, at that point in time, the Respondent's policy was to discard the application and similar paperwork on applicants who were not hired. Now, after the claims the Petitioner made in this case, the Respondent keeps this documentation. Neither party could produce the Petitioner's application at the final hearing to clarify whether the Petitioner had in fact disclosed on his application his receipt of worker compensation in the past. 4/ The Petitioner concedes that, on or about April 11, 1990, he was advised by an investigator with the Florida Commission on Human Relations that the Respondent was contending it declined to hire the Petitioner due to false statements on his employment application relating to worker compensation. The Respondent submitted persuasive evidence that, besides hiring the Petitioner in 1986 with knowledge of past injuries, it has continued to hire other individuals with a history of on-the-job injuries. The Respondent also submitted persuasive evidence that it has fired employees when it later came to the attention of the Respondent that the employee had falsified an employment application, particularly by falsely stating that worker compensation had not been received in the past. It is found that the Respondent declined to hire the Petitioner based on the Respondent's perception that the Petitioner had falsified his employment application by stating that he had not received worker compensation in the past. It is specifically found that the Respondent did not discriminate against the Petitioner due to a handicap or perceived handicap. There is no evidence of any reason why the Respondent would have discriminated against the Petitioner due to a handicap or perceived handicap. To the contrary, the evidence is clear that the Respondent viewed the Petitioner as being fully capable of performing the job of carpenter satisfactorily notwithstanding his prior back and knee injuries. 5/ In light of the findings made in this case, it would appear that the Petitioner misunderstood the statement made by the job superintendent as to the reasons why the Petitioner was not being hired. This proceeding resulted from the Petitioner's misunderstanding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order denying the Petition for Relief filed in this case. RECOMMENDED this 20th day of December, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 December, 1991.
Findings Of Fact The Petitioner, Myra McKinney, is a black female. The Respondent is an insurance company which conducts operations in Florida, as pertinent hereto, consisting of the receipt of insurance policy applications with attendant premium payments, the recording of such policy applications, and other administrative procedures and operations necessary to act on the applications and receipt of premium monies by underwriting the risks involved by insurance policies issued by the company. The Respondent is an employer in the State of Florida for the purposes of Chapter 760, Florida Statutes. The Petitioner was employed by Respondent at times pertinent hereto and from 1981 through June 2, 1992. When she was terminated she held the position of "processing manager." This position involved presiding over the department as supervisor, with the responsibility and function of receiving insurance policy applications and related binder and/or premium monies and properly accounting for them in the process leading up to the Respondent company issuing insurance policy contracts. The Petitioner was the supervisor of personnel charged with the receipt of and proper accounting for such applications and premium monies. On or about June 11, 1992, after being terminated by the Respondent on June 2, 1992, the Petitioner filed a charge of racial discrimination related to her termination with the Florida Commission on Human Relations (Commission). An investigation was conducted by the Commission which ultimately resulted in the determination of "no cause." The Petitioner had been placed on work probation on May 11, 1992, because of poor work performance. The terms of her probation status specified that her work performance would have to be reviewed in 30 days and that if objectives were not met she would be terminated. The Petitioner had been asked by her manager or supervisor to provide him with reports on missing work (lost or misplaced applications), as well as a plan to correct the processing deficiencies leading to this problem and to eliminate the backlog of unprocessed applications. The Petitioner failed to provide the requested response and report until the supervisor had to make a second request of her. Witness John Burkhalter, the Petitioner's most recent supervisor, as well as witnesses Maria Diaz and Connie Bonner, established that a corporate audit revealed severe deficiencies and discrepancies in the processing department's function, which the Petitioner supervised. Under the Petitioner's management the processing department had fallen into severe disarray with a serious backlog of unprocessed work, a loss of control by Ms. McKinney over the processing of the work, particularly the problem of lost or misplaced insurance policy applications and related premium or binder checks. There were organizational and work-flow management problems, and very poor morale throughout the processing department. Ms. Diaz established that the poor morale was directly attributable to the Petitioner's performance because she had poor organizational skills. Numerous meetings were held with no apparent purpose for the meetings and little was accomplished. Meeting agendas between the Petitioner and her subordinates were lacking or rudimentary. The Petitioner had the habit of intimidating employees, being critical of them, and causing the employees to feel reluctant to express ideas and opinions clearly, particularly criticisms of the manner in which the office was operated. Once the Petitioner left employment, the backlog of unprocessed work and the problem of missing or misplaced applications was immediately alleviated, with the office functioning in much better fashion ever since. Additional missing applications and a box of "backlogged", unprocesed applications were found concealed in the office on the day of the Petitioner's termination, June 2, 1992, during the course of her work probationary period. Mr. Burkhalter established, as the immediate supervisor of the Petitioner and the regional operations officer of the Respondent company, that the Respondent had a progressive discipline policy and termination policy. The corporate policy was followed with regard to the termination of the Petitioner. The Respondent employed progressive discipline when it learned of the severity of the problems in the processing department, imposing a probationary period first, and giving the Petitioner an opportunity to correct the problems, followed by termination for work performance deficiencies when the opportunity to correct those deficiencies was not taken advantage of by the Petitioner. Ms. McKinney's actual performance in May of 1992 was not consistent with her previous performance evaluations. Her former manager, Mr. McFall, had inflated her performance ratings and given her satisfactory ratings when actually her performance did not justify such. Mr. McFall himself was terminated near the same time as the Petitioner and testified on behalf as concerning purported satisfactory performance but, given the totality of the circumstances surrounding his termination and testimony in support of the Petitioner, is deemed a biased witness against the Respondent. His testimony was colored by his own dispute and history of litigation with the Respondent concerning his employment and termination. Mr. Burkhalter reviewed the Petitioner's entire personnel file, the deficiencies in her work performance and her lack of any improvement during the work probationary period when the Respondent gave her an opportunity to improve and make corrections. He determined termination was, therefore, the only option. He reviewed such considerations as transferring the Petitioner or demoting her to another position. However, because of the exceedingly poor morale generated in the department largely by the Petitioner's management and supervisory practices, Mr. Burkhalter determined that neither option was in the best interest of the Respondent or Ms. McKinney. He, therefore, terminated Ms. McKinney in compliance with the provisions of the work probation policy of the Respondent. He did not terminate her or otherwise discipline her for any reasons motivated by consideration of her race. In establishing this as fact, his testimony is corroborated by that of Ms. Lynn Jones, a black female employee, who testified that she had never been personally discriminated against by Mr. Burkhalter or Colonial nor had she observed any other black person employed by the Respondent treated in what appeared to her to be a disparate fashion, including the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the evidence of Record, 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 Florida Commission on Human Relations dismissing the subject petition of Myra McKinney in its entirety. DONE AND ENTERED this 11th day of January, 1994 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 11th day of January, 1994. APPENDIX Petitioner's Proposed Findings of Fact: Accepted but not in itself materially dispositive of the relevant issues. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial. Rejected as not in accordance with the totality of the preponderant, credible evidence. 8-9. Accepted, but not dispositive of the material issues presented. Rejected as not in accordance with the preponderant, credible evidence of record. Rejected as not clearly established by the preponderant evidence of record. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. Rejected as immaterial and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not entirely in accord with the preponderant weight of the evidence. Rejected as contrary to the preponderant weight of the credible evidence. Rejected as contrary to the preponderant weight of the credible evidence. Accepted. Rejected as immaterial. Rejected as immaterial. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial. Rejected as immaterial given the issues in this proceeding. Rejected as immaterial and not in accord with the preponderant weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of the credible evidence. Rejected as immaterial. Rejected as not in accord with the preponderant weight of the credible evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial under the circumstances presented by the issues in this case. Rejected as immaterial under the circumstances presented by the issues in this case. Rejected as immaterial under the circumstances presented by the issues in this case. Respondent's Proposed Findings of Fact: 1-14. All accepted, but subordinate to the Hearing Officer's Findings of Fact on the same subject matter to the extent that they differ. COPIES FURNISHED: Ms. Myra McKinney 1823 Mayfair Road Tallahassee, Florida 32303 Lucinda A. Reynolds, Esquire McCutchan, Druen, Maynard, Rath & Dietrich One Nationwide Plaza Columbus, Ohio 43216 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, G and F Renovations, Inc. (Respondent), timely challenged Petitioner's proposed agency action; and, if not, whether pursuant to the doctrine of equitable tolling Respondent is entitled to an administrative hearing to challenge the proposed agency action.
Findings Of Fact Petitioner is the state agency charged with the responsibility of enforcing and ensuring employers meet the requirements of chapter 440, Florida Statutes. The law in Florida requires employers to maintain appropriate workers' compensation coverage for their employees. At all times material to this case, Respondent was doing business in Florida and was represented by Pedro Malaret, attorney at law. Prior to May 1, 2014, Michael Robinson, a compliance investigator employed by Petitioner, visited a job site wherein workers were engaged in the business of construction/roofing. Robinson was advised by the workers at the site that they were employed by Respondent. Robinson then investigated the matter to determine whether the persons at the job site were covered by Respondent's workers' compensation insurance. To do so, he spoke to the supervisor at the site and others to whom he was referred. After verifying the persons on the job site were not on the list of Respondent's covered employees, and consulting with his supervisor, Robinson posted a Stop-Work Order at the job site. The Stop-Work Order provided, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. If you dispute a material fact contained in this action, you are entitled to a hearing under Sections 120.569 and 120.57(1), Florida Statutes, at which you may be represented by counsel, present evidence and argument on the issue(s), examine witnesses, submit a proposed recommended order, and file exceptions to the recommended order of the Administrative Law Judge. If you do not dispute a material fact contained in this action, you are entitled to a hearing under section 120.57(2), Florida Statutes, at which you may be represented by counsel, present documentary evidence, and present a written statement in opposition to this action. * * * You must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. FAILURE TO FILE A PETITION WITH THE TWENTY-ONE(21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. The Stop-Work Order and an Order of Penalty Assessment was served on Respondent's corporate agent, or authorized agent, by a process server. Respondent did not timely file a petition challenging the agency's proposed action. Instead, by email only, Respondent's counsel directed a letter to Robinson that provided: This firm has the pleasure of representing G & F Renovations, Inc. All papers to be served on G & F should be mailed or delivered to this office. My client wishes to resolve all issues relating to the matter amicably and as quickly as possible. As such, please forward a list of all documents needed to my office so that I may get them to you as soon as possible. Should you require any further documentation, please feel free to contact me either at my office or on my cell . . . I look forward to working with your [sic] to resolve this matter. Contrary to the offer to provide documents to Petitioner, Respondent did not provide business records. Eventually, an Amended Order of Penalty Assessment was issued and provided by email to Respondent's counsel at his email address of record. The Amended Order of Penalty Assessment was sent to counsel on or about October 6, 2014. Respondent did not timely file a petition to challenge the proposed agency action. Respondent did not timely challenge the Stop-Work Order and did not timely challenge the Amended Order of Penalty Assessment. Respondent did not provide any assistance to resolve the issues presented by the Stop-Work Order. When Respondent failed to timely respond to the Petitioner's requests for information, refused certified mail addressed to its office or corporate representative, and failed to timely challenge Petitioner's proposed action, a final order was entered on or about July 8, 2015. Thereafter, Respondent filed an appeal claiming Petitioner had not properly served notice of its proposed action. This case was initiated in response to the appeal to address the issue of whether the Petitioner lulled the Respondent into inaction and thereby tolled the time within which to file an administrative challenge to the proposed agency action. At no time did Respondent deny allegations pertinent to the instant case, including whether the workers at the construction job site were employed by Respondent. If the workers at the construction job site were appropriately covered by workers' compensation insurance or were exempt from coverage, Respondent did not assert such defense. In fact, Respondent did not cooperate to provide any information to Petitioner that would "resolve all issues relating to the matter amicably and as quickly as possible." Petitioner provided notice to Respondent of the procedural requirements to challenge the agency action and did not lull Respondent into a false sense of security or inaction. To the contrary, Respondent attempted to circumvent its legal responsibilities by refusing certified mail and failing to provide business records in a timely manner. Respondent seeks to benefit from its inaction. Had Respondent provided documents to support any defense to the Stop-Work Order and initial assessment of administrative fine, the issues could have been resolved. The weight of the credible evidence supports the finding that Respondent did not timely challenge the proposed agency action within the 21 days allowed by law. In short, Respondent ignored the Stop-Work Order and the legal claims it presented.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent failed to timely file a petition to challenge the agency's proposed action and its failure to do so was not the result of equitable tolling. DONE AND ENTERED this 6th day of December, 2016, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2016. COPIES FURNISHED: Michael Joseph Gordon, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Kelli B. Hastings, Esquire Law Office of Kelli B. Hastings, PLLC 4005 North Orange Blossom Trail Orlando, Florida 32804 (eServed) Pedro Malaret, Esquire Malaret Law Firm, PLC 732 North Thorton Avenue Orlando, Florida 32803 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact Respondent James Seay, who had worked as a teacher in Suwannee County for many years, was out sick first with a stomach virus and then with recurring head pain for the entire school week of March 4-8, 1991. He visited physicians on March 5, 7 and 8, and took three prescribed medicines. Mr. Seay telephoned the morning of March 4, 1992, and told Sonja Suber, a secretary who was "the designated person at the school," (T.48) responsible for obtaining substitute teachers and maintaining sick leave records, that he was ill and would not be in that day. The parties agree that respondent was on sick leave through March 8, 1991. On the evening of March 4, 1991, he telephoned Nancy Roberts, director of elementary education for the Suwanee County School District and principal of Douglass Center. When Mr.Seay told her he would not be in the following day, she cancelled an observation she had scheduled for his benefit. The next day or the day after Sonya Suber telephoned respondent to relay Ms. Roberts' advice that a meeting scheduled for March 11, 1991, had been cancelled. On Saturday, March 9, 1991, Mr. Seay telephoned Ms. Suber and said "that he would be coming Monday to the school but he would not report to the classroom." T. 29. He had earlier expressed to Ms. Roberts discomfort "with the students that were assigned" (T. 46) to him. On Monday, March 11, 1991, at 7:53 o'clock in the morning, he appeared as promised and signed in at Suwanee County School District's Douglass Center. After greeting Sonya Suber, he went to the teachers' lounge. He did not give any indication that he was unwell or make any request for leave. Ms. Roberts saw Mr. Seay reading a newspaper in the lounge. She asked him to accompany her to her office, where she "let him know that he was a teacher assigned to the Alternative Program at the Douglass Center and what his responsibilities were . . . working with the students there." T.50. Respondent handed Ms. Roberts one of his attorney's cards, and told her "that there was nothing [she] could do to make him go in that classroom and that he was not going to that classroom," (T.50) and asked her "to stop harassing him." Id. After Mr. Seay's return to the teachers' lounge, Ms. Roberts gave an account of events to Mr. Charles F. Blalock, Jr., petitioner here. Petitioner's Exhibit No. 2. The following morning Mr. Seay signed in at the Douglass Center at ten before eight, Petitioner's Exhibit No. 1, but he again went to the teachers' lounge rather than to his assigned classroom. Again he told nobody he was ill, and asked nobody for sick leave. Ms. Roberts twice asked him to go to his classroom. When she told him his failure to teach the class he had been assigned "could be construed as insubordination on his part," (T.53) he asked her to clarify what she meant by insubordination and, with her permission, made a tape recording of her answer. Petitioner's Exhibit No. 3. He refused to go to his classroom. On Wednesday, March 13, 1991, Mr. Blalock wrote a letter to Mr. Seay advising him that he was suspended with pay, and that, as superintendent, he would recommend suspension without pay and ultimately dismissal at the next regular meeting of the School Board. Petitioner's Exhibit No. 4. When Ms. Roberts telephoned Thursday morning with word that Mr. Seay was at Douglass Center, Mr. Blalock went himself to speak to Mr. Seay. Twice he personally directed Mr. Seay to go to his classroom and get to work. Confronted with Mr. Seay's silent refusal, Mr. Blalock handed him the letter of suspension, dated the day before. When the School Board met, heard what had transpired, and listened to a presentation by Mr. Seay's lawyer, it decided that Mr. Seay should have a physical examination and be examined by a psychiatrist. At the school board meeting, nobody suggested that respondent was on sick leave at any time after March 8, 1991. In keeping with the collectively bargained agreement between the School Board and teachers like Mr. Seay under continuing contract with the School Board, Petitioner's Exhibit No. 6, petitioner demanded that respondent go for medical and psychiatric examinations, by letter dated April 10, 1991. Petitioner's Exhibit No. 7. A second, follow-up letter reiterating the demand, dated April 29, 1991, Petitioner's Exhibit No. 9, reached Mr. Seay by registered mail. As of the time of the hearing, Mr. Seay had not complied with the Board's demand that he submit to a physical examination and be examined by a psychiatrist.
Recommendation It is, therefore, RECOMMENDED: That petitioner terminate respondent's employment. DONE and ENTERED this 3rd day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II, 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 3rd day of December, 1992. APPENDIX FOR NO. 91-6046 Petitioner's proposed findings of fact Nos. 1-11 and 13-20 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 12 pertains to immaterial matters. With respect to petitioner's proposed finding of fact No. 21, respondent apparently also took the position that he had been on sick leave in the unemployment compensation case. Petitioner's proposed findings of fact Nos. 22 and 23 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 1-3, 5-8 and 19 have been adopted in substance, insofar as material. Respondent's proposed findings of fact Nos. 4, 9-12, 21 and 24 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 13 and 15 are immaterial since respondent never requested sick leave. Respondent's proposed findings of fact Nos. 14, 16, 17 and 18 have been rejected as unsupported by the weight of the evidence. With respect to respondent's proposed finding of fact No. 20, Ms. Roberts' testimony in that regard is unrebutted. With respect to respondent's proposed finding of fact No. 22, there is no disagreement. Respondent's proposed finding of fact No. 23 pertains to an immaterial matter. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Charles Blalock, Superintendent Suwanee County School Board 224 W. Parshley Street Live Oak, FL 32060 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, FL 32060 Linsey Moore, Esquire 50 East 2nd Street Jacksonville, FL 32206
The Issue The issues are whether Petitioner violated Chapter 440, Florida Statutes, and the Insurance Code by not securing workers’ compensation insurance or workers’ compensation exemptions, and if so, what penalty should be assessed.
Findings Of Fact Respondent is the state agency responsible for enforcing the requirement of workers’ compensation law that requires employers to secure payment of compensation for their employees. On June 26, 2006, Petitioner was operating in the construction industry installing drywall. At approximately 10:30 a.m., Respondent’s investigator, Vicki Chamelin, conducted a workers’ compensation compliance check at 5574 Hampton Hill Circle, Tallahassee, Florida. While at the site, Ms. Chamelin recorded the names of the workers who claimed to be or were claimed to be employed by Petitioner. The names of these individuals were Brandon Roberts, Kelvin Williams, Charles Carter, Willie Oliver, and Jerry Pompey. Next, Ms. Chamelin consulted Respondent’s Coverage and Compliance Automated System (CCAS). She then spoke with Christine Conley, branch manager of U.S. Labor, Inc./USA Staffing, the company that Petitioner contracted with to provide workers’ compensation coverage. Ms Chamelin concluded that Petitioner had not secured the payment of workers’ compensation for Brandon Roberts, Kelvin Williams, and Jerry Pompey. After consulting with her supervisor, Ms. Chamelin issued a Stop Work Order and Order of Penalty Assessment (hereinafter “Stop Work Order”). The Stop Work Order commanded Petitioner to cease business operations and assessed a $1000 penalty against Petitioner. In addition to the Stop Work Order, Ms. Chamelin served Petitioner with a Request for Business Records for Penalty Assessment Calculation (hereinafter “Request”). After serving Petitioner with the Stop Work Order and Request, Ms. Chamelin again verified with Christine Conley which employees were and were not covered by U.S. Labor, Inc./USA Staffing’s workers’ compensation insurance. U.S. Labor, Inc./USA Staffing is a staffing company whose employees must apply and be approved by USA Staffing prior to placement with client companies. Pursuant to the contract between USA Staffing and Petitioner, an employee is not covered by workers’ compensation insurance unless the employee applies to and is approved by USA Staffing prior to starting work. If an approved employee of USA Staffing does not work for USA Staffing for between two and four weeks, USA Staffing deactivates the employee from their payroll and notifies the client company. Inactivated employees are not covered by USA Staffing’s workers’ compensation insurance policy. Ms. Conley advised Ms. Chamelin that Kelvin Williams, Brandon Roberts, and Jerry Pompey were not being leased by Petitioner from USA Staffing on June 26, 2006. USA Staffing’s payment records reflected that no payroll was being run by USA Staffing for Brandon Roberts between the dates of April 6, 2006, and June 26, 2006. U.S. Staffing’s payment records reflected that no payroll was being run by USA Staffing for Kelvin Williams between the dates of March 2, 2006, and June 26, 2006. Jerry Pompey was never an employee of USA Staffing. In order to reactivate an employee, a client company must call USA Staffing and reactivate the employee prior to that employee commencing work with the client company. Ms. Chamelin called USA Staffing to investigate the coverage status of Jerry Pompey, Brandon Roberts, and Kelvin Williams before Petitioner called USA Staffing to reactivate the individuals. Petitioner did not provide Respondent with any of the documents identified in the Request. Because Petitioner failed to provide Respondent with the requested business records, Ms. Chamelin properly imputed Petitioner’s penalty. First, Ms. Chamelin imputed Petitioner’s payroll. Next, Ms. Chamelin divided the imputed payroll amount by 100, multiplied the quotient by the approved manual rate to arrive at the premium the Petitioner would have paid, then multiplied the product by 1.5. Petitioner entered into a Payment Agreement Schedule for Periodic Payment of Penalty by paying 10 percent of the total penalty with the balance due in equal monthly installments over 60 months. Petitioner was issued an Order of Conditional Release From Stop-Work Order after entering into the Payment Agreement Schedule for Periodic Payment of Penalty and demonstrating compliance with the coverage requirements of Chapter 440, Florida Statutes (2005). Respondent issued a Second Amended Order of Penalty Assessment to Petitioner. The Second Amended Order of Penalty Assessment adjusted Petitioner’s assessed penalty to $10,270.76.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order, affirming the Stop Work Order and Second Amended Order of Penalty Assessment that assessed a penalty of $10,270.76. DONE AND ENTERED this 8th day of March, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 8th day of March, 2007. COPIES FURNISHED: Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Stanley Roberts Forever Ready Drywall 272 Robert Willis Road Cairo, Georgia 39827 Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
The Issue The issue is whether the claimant overutilized the services of Dr. Pamela J. Windham, a provider, in connection with services rendered on July 23 and August 10, 1999, in violation of Section 440.13(6) and (7), Florida Statutes.
Findings Of Fact Warren Stovall (Claimant) was born on January 9, 1948. On October 3, 1989, Claimant suffered head injuries-- mainly, in all likelihood, a concussion--in a work-related motor vehicle accident in the course of his employment with Petitioner Wyatt Brothers Construction (Wyatt Brothers). Petitioner CNA Insurance Company (CNA), which was the workers’ compensation carrier for Wyatt Brothers at the time of the accident, accepted the injury as compensable. A few days after the accident, Claimant complained of headaches and problems with his vision, memory, and processing of information. Within one month after the accident, physicians confirmed the presence of a right posterior parietal cyst measuring 5 x 6 x 8 cm to 5 x 7 x 5 cm. Although chronic and likely congenital, the cyst may have been adversely affected by the motor vehicle accident. On October 30, 1989, a surgeon performed a craniotomy, a cystoventriculostomy, and cyst wall biopsies for treatment of a right parietal occipital ependymal cyst. Post- surgical recovery was complicated by subarachnoid and intraventricular air causing severe headaches. CNA has reimbursed various providers for the treatment of the cyst, as well as for the diagnosis and treatment of post-surgical cognitive deficits. CNA has paid for all medically necessary treatment, without regard to whether it was necessitated by injuries associated with the motor-vehicle accident or the brain surgery. One of the providers is Intervenor Pamela J. Windham, Ph.D. (Dr. Windham), a licensed clinical psychologist who works in Louisiana, where Claimant now lives. Dr. Windham began counseling Claimant on February 2, 1990, and has counseled him on more than 200 occasions in the ensuing 10 years. In August 1999, CNA commenced a utilization review of the treatment provided Claimant by Dr. Windham. Certain peer review reports determined that several years of Dr. Windham's counseling had not been medically necessary or reasonable. In reliance upon these reports, CNA determined that Claimant had overutilized the services of Dr. Windham on July 23 and August 10, 1999. The charge for each of these two-and-one- half-hour counseling sessions was $462.50. On February 29, 2000, Dr. Windham filed with the Division of Workers’ Compensation (Division) a Petition to Division of Workers’ Compensation to Resolve the Dispute Regarding a Disallowance and Adjustment of Payments by CNA Insurance Companies to Pamela J. Windham, Ph.D. Identifying the two service dates (and a third, since paid in full) as the reimbursements in dispute, the petition requests the Division to issue an order requiring CNA to reimburse Dr. Windham for the total charges of $925 and to pay Dr. Windham’s reasonable attorneys’ fees. By letter to CNA dated April 27, 2000, the Division acknowledged receipt of Dr. Windham’s petition for reimbursement. The letter states that the Division examined the dispute pursuant to Rules 38F-7.020 and 38F-7.602, Florida Administrative Code, and the 1997 Florida Workers’ Compensation Health Care Provider Fee for Service Reimbursement Manual (Manual). Noting that CNA had claimed that it was conducting a utilization review, the letter states: “While the Division supports the importance of utilization review by the carrier, there is no provision for holding bills during a utilization review investigation. Rule [38F-7.602(3)(b)1] requires carriers to pay or deny medical bills within 45 days.” The letter recommends that CNA pay the remaining $1288.25 due within 30 days of the date of the letter, denies Dr. Windham’s request for attorneys’ fees, and informs any substantially affected person of its right to an administrative hearing. On May 18, 2000, CNA and Wyatt Brothers (Petitioners) served the Employer/Carrier’s Petition to the Division of Workers’ Compensation Regarding a Reimbursement Dispute and Disallowance of Payment by CNA Insurance Company to Pamela J. Windham, Ph.D. In their petition, Petitioners requested an order from the Division rejecting Dr. Windham’s claim for reimbursement and awarding attorneys’ fees and costs to Petitioners. Dr. Windham has pre- and post-doctoral training in neuropsychology. She completed a one-year fellowship at the Tulane Medical Center/Children’s Hospital in neuropsychology in September 1989. She worked as the sole employee of the neuropsychology department at the Touro Rehabilitation Center in New Orleans from November 1989 until mid-1997, at which time she entered private practice in nearby Metairie, Louisiana. Just a couple of months after Dr. Windham began working at the Touro Rehabilitation Center, the center’s neurologist, Dr. Diane Mayer, referred Claimant for a neuropsychological evaluation to document Claimant’s current level of neuropsychological functioning and make appropriate recommendations for further treatment. The neuropsychological evaluation took place over three days from February 2-7, 1990. Claimant’s wife reported to Dr. Windham that, following the brain surgery, Claimant continued to experience memory problems, restlessness, fatigue, and slowed accomplishment of formerly simple tasks, such as replacing door hinges. Claimant reported that his primary areas of residual deficits were in memory and slowed cognitive processing, as well as occasional difficulties in word-finding. Both Claimant and his wife reported that Claimant had experienced increased levels of irritability and frustration over his inability to complete tasks that, prior to the injury, he had been able to comply without difficulty. After administering appropriate tests, Dr. Windham determined that Claimant was within the average range of intellectual functioning, but suffered deficits in memory and higher-level abstract reasoning. She found that he was experiencing anxiety, depression, and self-doubt. Dr. Windham’s evaluation contains five recommendations. First, Claimant should participate in a rehabilitation program to address his memory and reasoning deficits; Dr. Windham expected him to “demonstrate progress throughout the coming months” because he was then only four months post-injury. Second, Claimant should undergo supportive therapy to alleviate his anxiety and frustration. Third, Claimant should use associative cues to strengthen his memory functions. Fourth, Claimant should generate possible solutions to imagined and actual problems in daily life to remediate his deficits in reasoning and problem-solving. Fifth, Claimant should undergo a complete neuropsychological reevaluation in eight months to determine his progress. In a letter dated June 22, 1990, evidently from Dr. Windham to a registered nurse/rehabilitation specialist, Dr. Windham states: It quickly became evident that these adjustment issues [originally identified in the above-described neuropsychological evaluation] encompassed Mr. Stovall’s primary support system, namely his wife, Vickie. The emotional/behavioral factors which have surfaced subsequent to the head injury have significantly impacted the couple’s relationship. In particular, those intrusive factors include: Mr. Stovall’s emotional dependence, reduced drive/motivation, reduced empathy, reduced insight, lowered tolerance for frustration, and problematic communication, in general. On October 29-31, 1990, Dr. Windham performed another neuropsychological evaluation of Claimant. Summarizing Claimant’s current level of functioning, Dr. Windham found: Currently, Mr. Stovall continues to report cognitive difficulties primarily related to planning, organizing, and carrying out novel tasks. Occasional difficulties in word finding are still present also. Mr. Stovall’s wife continues to report some periodic difficulty in her husband’s social judgment. Both Mr. Stovall and his wife continue to report his increased irritability, in general, and an inability of Mr. Stovall to self-monitor . . .. There are current staff reports also of impulsivity, inability to self-correct, inability to perform basic mathematical calculations, and anxiety/depression. Decreased endurance level with concomitant decreased cognitive efficiency also continues to be problematic for Mr. Stovall. The reevaluation continues to find that Claimant was of average intelligence, and he continued to experience some problems with abstract reasoning. However, he had improved “on many measures” of memory. Dr. Windham’s reevaluation contains four recommendations. First, Claimant should continue to undergo rehabilitative therapy for deficits in reasoning and impulse- control. Second, Claimant should continue to receive supportive counseling for his anxiety and depression. Third, Claimant should undergo vocational rehabilitation to determine his ability to return to his prior construction work; noting that Claimant had probably already attained his pre-injury level of functioning and would continue to suffer significant deficits in reasoning and problem-solving, Dr. Windham warned that she expected that this effort would be “extremely difficult and ultimately disappointing.” Fourth, Claimant should undergo another neuropsychological evaluation in one year. On January 16, 1992, Dr. Richard Cicinelli, a psychiatrist, saw Claimant for a psychiatric evaluation. Dr. Cicinelli’s impression was as follows: Organic affective and organic personality disorder, due to a slowly resolving organic brain syndrome due to CNS injury, especially as stated to the posterior parietal area, the location of the removal of the cyst. The patient’s depression seems to be resolving well and responding to psychotherapy to the point that there is no need for a trial of antidepressants now. There does seem to be a residual brain syndrome, however, as in other similar cases of brain injury, in which there has been a slow, gradual improvement, but only to a certain extent, with the probability that there will be only a certain percentage of complete return to premorbid CNS functioning, such as 80 or 90 per cent. Elaborating on his findings, Dr. Cicinelli stated in a letter dated March 17, 1993: I felt that the patient’s depressive reaction to his injuries and some of the cognitive losses could improve with time, or with new training and continued psychotherapy. However, there is a certain degree of impairment, which will be certainly PERMANENT and IRREVERSIBLE. Medications, cognitive restructuring, and supportive individual psychotherapy can be palliative, but never fully cure such conditions. There is a need for continued supportive individual psychotherapy and continued evaluations by psychiatry, until the patient dies. On March 23, 1995, Dr. Mark K. Rosenbloom, a physician certified in physical medicine and rehabilitation, examined Claimant as part of a follow-up visit. Dr. Rosenbloom found that Claimant’s short-term memory and memory after ten minutes were good, but his concentration and speed of processing were mildly slowed and his insight and judgment were only fair. Dr. Rosenbloom concluded that Claimant would continue to benefit from Dr. Windham’s neuropsychological intervention and that his need for this treatment would be “indefinite.” Failing to follow the fourth recommendation of her October 1990 reevaluation, Dr. Windham never performed another comprehensive reevaluation of Claimant after the October 1990 reevaluation. On April 6, 1995, Dr. Windham noted that she “[a]chieved what appears to be maximum closure/resolution possible [with Mr. and Mrs. Stovall] in this session.” Dr. Windham admitted that, since 1993, she did not have “any objective evidence in the form of testing that would support the need for ongoing psychological counseling,” as she provided it. [Intervenor Exhibit A, p. 65.] For several years, Dr. Windham’s counseling has been more palliative or supportive than curative or remedial. As she explains, her treatment plan, for many years, has been to provide supportive counseling, on an as-needed, indefinite basis, as befits Claimant’s deficits, which will never disappear. [Intervenor Exhibit A, pp. 57-58.] Dr. Windham describes her work as “consistently . . . to address Mr. Stovall’s ability, with the support and involvement of his wife, to address his ability to deal with and address and cope with the consequences of the neurological insult of trauma that he sustained.” [Intervenor Exhibit A, p. 22.] Dr. Windham explains that Claimant’s condition requires repeated interventions: Because Mr. Stovall has significant memory difficulties, he has significant short-term and long-term [memory problems]. He has judgment, higher level, executive cognitive function deficits which relate to judgment, decision making. His ability to integrate information is not what it was previously nor will it be again. Therefore, when [Mr. and Mrs. Stovall] come in, it takes repetition. It takes supportive repetition. It has been challenging but I think we successfully established the kind of therapeutic relationship with Mr. Stovall and with his wife, such that he trusts me, he trusts my judgment. I can--I can address issues that are uncomfortable to him, issues of safety, issues of financial management, issues wherein he and his wife disagree vehemently with regard to, say, family issues too. I’ve managed to establish and maintain that sort of trusting relationship with Mr. Stovall and with his wife. And I think that’s been the reason for the success that we have had with regard to dealing with these issues as they’ve arisen. [Intervenor Exhibit A, pp. 23-24.] Dr. Windham links Claimant’s need for ongoing supportive therapy to counseling concerning such matters as marital problems, the purchase of a new car, problems with a daughter’s decision to enlist in the military, and Claimant’s concerns about his sister and nephew. [Intervenor Exhibit A, p. 46.] Dr. Windham explains that Claimant’s perceptions, his cognitive functioning is impaired. . . . He is easily overwhelmed cognitively. And it affects not only the situation that’s being addressed but it significantly affects his relationship with his wife and his family. An important part of neuropsychological intervention or treatment . . . has been adjustment in daily functioning to issues as they arise. . . . Mr. Stovall has and will continue to have difficulties with regard to . . . those cognitive deficits. He will continue to have difficulty with memory, long-term and short-term, especially short-term. When he takes in information that’s new, he cannot process it, encode it, and store it in order that he can retrieve it as you and I do or as he did previously. He cannot attend to that information, therefore, in order to evaluate and judge it and make a sound decision about it. So all the issues that [Mr. and Mrs. Stovall] bring up and, you know, sometimes I think in my notes I’m sitting there and I’m trying to jot a line maybe when we get started on something, talking about something, and then being pushed for time, I probably don’t go back and do the kind of comprehensive notes that I need to do or to tie it together. But, I can assure you that the treatment that I have provided has been to the best of my ability, it has been needed, and I think it’s been beneficial. Intervenor Exhibit A, pp. 60-64. Dr. Windham has treated Claimant and/or his wife over 200 times from 1990 to 2000: 51 times in 1990, 23 times in 1991, 3 times in 1992, 27 times in 1993, 1 time in 1994, 18 times in 1995, 25 times in 1996, 15 times in 1997, 26 times, in 1998, 13 times in 1999, and 6 times in 2000. Over the years, much of Dr. Windham’s work with Claimant and his wife involved marital and family issues, including financial issues. Frequent issues involved the impact of Claimant’s consumer transactions upon the couple’s domestic life. Sometimes the issues seemed trivial, such as Claimant’s insistence upon driving the whole way on a trip with his wife. Other times, the issues were more substantial, involving tasks that Claimant could no longer do or could no longer do efficiently. Dr. Windham’s notes for the July 23, 1999, session reveal that Claimant was persisting in his intention to purchase an automobile over the Internet, despite adverse experiences of long-distance business transactions reportedly of a similar nature. The notes state that Dr. Windham linked these undescribed past experiences to Claimant’s decreased level of cognitive functioning with its attendant impact upon his ability to manage finances. Dr. Windham’s notes for the August 10, 1999, session reveal that Claimant was alert and oriented to time, person, place, and situation. The notes state that he expressed confusion regarding his long-term memory and its impact on his ability to plan for the future. The notes state that Dr. Windham discussed “previous issues of conflict” and relate the higher-level cognitive deficits to the brain trauma suffered by Claimant. As part of its utilization review, CNA obtained the opinions of three experts, based on a review of records, but not an examination of Claimant. By report dated September 3, 1999, David M. Bortnick, a clinical psychologist and neuropsychologist, stated that he found that, after 1994, the focus of Dr. Windham’s treatment was less on the industrial injuries suffered in 1989 and more on domestic issues. Dr. Bortnick concluded that Dr. Windham’s treatment was excessive in duration and frequency, as her evaluation and treatment should have been completed by December 1994. Dr. Bortnick added that years of psychological treatment often produces strong feelings of dependency in the patient and therapist and reinforces an unhealthy disability identity. By report dated September 27, 1999, Leslie L. Mate, a psychiatrist, Alan J. Raphael, a psychologist, Charles J. Golden, a clinical psychologist and neuropsychologist, and Kenneth C. Fischer, a neurologist, opined that Dr. Windham’s treatment was medically unnecessary after February 17, 1992, by which time Claimant was functioning within normal limits. By report dated September 11, 2000, Jeffery A. Danziger, a psychiatrist, opined that, in response to Claimant’s cognitive and personality issues emerging as a result of the neurosurgery, a neuropsychological evaluation and “short course of cognitive retraining and [family] assistance” were reasonable. Dr. Danziger found that Dr. Windham’s therapy sessions “apparently focused more on marital therapy, family conflict and financial issues and had little to do with the original problems relating to the cognitive and intellectual deficits and personality changes.” Dr. Danziger warned that Claimant may have developed a “dependence on the therapist and an unhealthy fostering of a sick and dependent role.” Respondent subsequently obtained medical reports from three persons: Lee H. Bukstel, a clinical neuropsychologist, Conrad P. Weller, a psychiatrist, and David A. Gross, a psychiatrist. By an undated report, Dr. Bukstel noted that Dr. Windham had not completely reacted to the data showing, between her two major evaluations of Claimant, that his memory and attention/concentration had improved at least to the normal range. Dr. Bukstel also noted that often he could not judge the level and quality of care due to the lack of specificity in Dr. Windham’s notes. He questions whether Dr. Windham was sufficiently oriented toward a back-to-work set of issues, given the Workers’ Compensation setting. Although Dr. Bukstel did not seriously question the frequency of treatment, he questioned its duration, noting that its earlier focus on work-related issues shifted to marital- therapy issues with the emergence of Mrs. Stovall’s marital issues possibly driving the duration of the treatment. Dr. Bukstel concluded that none of Dr. Windham’s treatment was medically necessary after 1992. By report dated February 19, 2001, Dr. Weller, agreeing with Dr. Cicinelli’s conclusion that Claimant may require “indefinite psychiatric or psychological follow-up as a result of his head injury,” opined that a provider could reasonably provide Claimant with “low-intensity psychiatric or psychological follow-up,” consisting of “periodic reassessment and occasional treatment intervention or psychotropic medication management on a quarterly to annual basis.” Dr. Weller concluded that, after 1991, it would have been reasonable for Dr. Windham to see Claimant up to quarterly, absent documented neuropsychiatric complications, such as depression. Finding that Dr. Windham’s notes fail to address diagnostic issues and fail to document symptoms, such as anxiety, compulsions, or depression that may have required intensive treatment, Dr. Weller could not justify more than monthly sessions during 1990 and 1991, especially in light of the multimodal treatment that Claimant was then receiving at the Touro Rehabilitation Center from other providers. By report dated January 26, 2001, Dr. Gross opined that all of Dr. Windham’s services were medically necessary and reasonable in frequency and duration. He found that she appropriately focused on “coping strategies, cognitive techniques,” and “The Good, The Bad, and The Ugly” of daily living. Dr. Gross opined that it was reasonable to conclude that the cognitive deficits from which Claimant suffered would interfere with all aspects of his daily life. The greater weight of the evidence establishes the medical necessity of low-intensity neuropsychological treatment, given the permanency of Claimant’s cognitive deficits. Of course, the frequency of this treatment is driven by the intensity of the symptoms, but, in recent years, quarterly or semi-annual counseling sessions with Dr. Windham would have been sufficient to treat Claimant's documented problems. Medically necessary sessions at appropriate intervals will feature the identification of specific, relevant symptoms; workable compensating strategies; and--if warranted--more intensive therapeutic alternatives, such as an evaluation for psychotropic medications. Obviously, the participants will, from time to time, discuss the consequences of specific symptoms, and these discussions will involve various aspects of domestic life, but sessions at appropriate intervals would no longer highlight consumer credit counseling, Claimant’s insistence on doing all of the driving on family trips, or family issues at most tangentially involved with Claimant’s cognitive deficits. As for the July 23 and August 10, 1999, service dates, the record fails to establish their medical necessity. As for the July session, many persons purchase cars on the Internet--presumably, some of them unwisely. If Claimant’s cognitive deficit were surfacing in his investigation of the possibility of buying a car by this means, Dr. Windham’s notes, which do not specify how this proposed behavior is linked to other “similar” behaviors, do a remarkably poor job of linking these elements or even establishing the imprudence of this particular behavior. As for the August session, Dr. Windham’s notes again do a poor job of detailing the nature of Claimant’s problem in planning for the future. Perhaps Claimant's problem was an inability to conceptualize the multiple contingencies necessary for effective planning. Perhaps Claimant's problem was, again, financial in nature, possibly encompassing apprehension concerning future financial security. Dr. Windham’s notes leave the reader only with speculation and conjecture as to any link that may exist between the treatment provided during this session and Claimant’s cognitive deficits. In general, any connection between the July 23 and August 10, 1999, counseling sessions and the brain surgery that followed the motor vehicle accident is undermined not only by Dr. Windham's poor note-keeping, but by her failure to document the extent to which Claimant recovered memory functions in the year following her initial evaluation of him and the effect of this improvement on his overall level of functioning. These omissions are exacerbated by Dr. Windham's failure to follow her own recommendation and conduct another neuropsychological reevaluation of Claimant after the October 1990 reevaluation. These deficiencies are crucial in assessing the August 10 session, in which reported memory problems are explicit, and the July 23 session, in which memory problems are evident and likely joined with cognitive problems. These deficiencies are also crucial in assessing Dr. Windham's justification of the frequency of sessions, as necessitated partly by Claimant's reported memory problems (Intervenor Exhibit A, pp.23-24), and the duration of sessions, also as necessitated partly by Claimant's reported memory problems (Intervenor Exhibit A, pp. 60-64). Except as altered above, the remaining findings of fact from the Partial Recommended Order, as adopted by the Partial Final Order, are incorporated by reference in this Recommended Order.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order determining that the services rendered Claimant by Dr. Windham on July 23 and August 10, 1999, constitute overutilization, for which Petitioners are not liable in reimbursement, and denying all requests for attorneys' fees and costs. DONE AND ENTERED this 10th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 May, 2001. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Elizabeth Teegen, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Mark S. Spangler Law Offices of Mark S. Spangler, P.A. 1061 North Maitland Center Commons Orlando, Florida 32751 Timothy G. Schoenwalder Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32301 Nancy Staff Terrel Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Michael B. Murphy The Stanley Wines Law Firm, P.A. Post Office Box 860 Winter Haven, Florida 33882-0860
