Findings Of Fact Petitioner is male and Cuban. He is a member of a protected group and a qualified individual. Petitioner was employed by the Fleet Manager for Orange County, Florida in February, 1981, as a Mechanic I. He was later reclassified as a Mechanic II as part of an internal reorganization. Petitioner's duties require him to drive County vehicles to various locations to repair other County vehicles. The parties stipulated that Petitioner is a good mechanic and has always performed mechanical repairs competently. Orange County is a subdivision of the state. It employs a substantial number of people. The Fleet Manager maintains Orange County vehicles, operates and maintains the County's refueling system, and operates and manages emergency rescue vehicles and emergency generators for the County. The Fleet Manager is responsible for all personnel matters for County employees assigned to the fleet system. Mr. James Brock is the Fleet Manager who took the employment actions on behalf of Orange County that are the subject of this proceeding. Orange County employed Mr. Brock as a traffic engineer in 1987 and promoted him to Assistant Fleet Manager and Fleet Manager, respectively, in 1989 and 1992. Orange County and the Fleet Manager are referred to hereinafter as "Respondent." Respondent maintains a progressive discipline policy. Discipline progresses from counseling or verbal reprimand, to written reprimand, suspension, and then termination. The purpose of the progressive discipline policy is to make individual employees productive workers by modifying their behavior from inappropriate to appropriate behavior. The purpose of the progressive discipline policy is not to punish employees. Respondent prohibits discrimination, including that based on national origin. Respondent prohibits the implementation of its progressive discipline policy in a manner that discriminates against employees. Petitioner has a long history of discipline that began in his first year of employment. In November, 1981, Petitioner wrecked at least three vehicles. He received a written reprimand. In 1982, Petitioner ran over a battery charger. In 1985, after repeated warnings and notices, Petitioner was suspended for approximately three days for refusing to follow County policies. In 1991, Petitioner wrecked a County vehicle in an automobile accident with another vehicle driven by a member of the public. The truck driven by Petitioner was totally destroyed. The employment actions at issue in this proceeding began in April 1993. Respondent received information that Petitioner kept his County vehicle at his house on work days and used it for personal purposes, including hauling bricks to build a fence. Respondent convened a meeting with Petitioner, Petitioner's foreman, and an interpreter. Respondent and the foreman advised Petitioner that it was a violation of County policy to take a County vehicle home, to take the vehicle outside of the County where Petitioner resides, and to falsify work records. In September 1993, Respondent issued a written reprimand to Petitioner for threatening a co worker with Petitioner's vehicle. Respondent concluded that Petitioner drove his vehicle toward a co worker at a rapid speed and stopped just before impact. In October 1993, Respondent received repeated telephone calls from a third party that Petitioner was home during work days with his County vehicle. Respondent verified the reports with its own investigation and charged Petitioner with insubordination, taking a County vehicle home, and falsifying work records. Respondent conducted a predetermination hearing in accordance with due process requirements. Respondent notified Petitioner of his right to have a representative, attorney, or union steward present and to appeal any adverse determination. Petitioner attended the predetermination hearing. Both Petitioner and Respondent presented evidence including the testimony of witnesses under oath. The hearing was recorded. Respondent suspended Petitioner for four days without pay. In February 1994, Petitioner wrecked another County vehicle. He backed over a County lawn mower while backing his own vehicle out of the heavy equipment shop. Respondent counseled Petitioner after the incident. Petitioner does not have a good driving record. He has numerous speeding tickets. In August 1994, Respondent required Petitioner to attend a cultural awareness course. The course teaches cooperation among individuals from diverse cultural or ethnic backgrounds. Respondent requires all employees to attend the course. Petitioner argued with the instructors and refused to stay in the course. In September 1994, Respondent issued a letter of direction requiring Petitioner to attend the course. In September 1994, Petitioner took his County vehicle home again. Respondent counseled Petitioner for the violation and conducted an investigation that was still pending in October 1994. On October 14, 1994, Petitioner responded to a request for emergency repair of another County vehicle. Respondent drove his County vehicle recklessly and made an obscene gesture to another motorist. Petitioner followed the motorist up an access ramp on the East West Expressway at a speed of 35 40 mph, made an obscene gesture, and passed the motorist improperly. Petitioner followed the motorist at a distance of less than one foot. Petitioner then turned on the yellow warning lights on his County vehicle. When the motorist did not pull over and allow Petitioner to pass, Petitioner made an obscene gesture and passed the motorist while on the access ramp. The motorist pulled up beside Petitioner and wrote down the number of the vehicle. The motorist reported the incident to Respondent on the same day. Respondent investigated the incident and conducted a predetermination hearing on November 2, 1994. Petitioner participated in the predetermination hearing. Respondent terminated Petitioner on November 11, 1994. While Petitioner was employed by Respondent, Petitioner applied for promotion to Mechanic III approximately three times. Respondent never promoted Petitioner. Promotions are determined by a board composed of four mechanics who sit for a prescribed period and then are replaced by other mechanics. The mechanics are appointed to the board by management. The board is racially diverse. It typically includes Hispanics. The board conducts a separate interview of each candidate for promotion. The board members ask each candidate identical questions and score the responses from each candidate. The board then recommends the candidate with the highest score. The board never recommended Petitioner for promotion. Respondent has never deviated from the recommendation of the board. The candidates recommended by the board are racially diverse. They include Hispanics. Respondent has never taken any employment action against Petitioner on the basis of Petitioner's national origin. Respondent has never taken any employment action against Petitioner for a discriminatory reason.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner on the basis of his national origin. RECOMMENDED this 9th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY 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 9th day of June, 1997 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission On Human Relations Building F. Suite 240 325 John Knox Road Tallahassee, Florida 32399 0700 Sharon Moultry, Clerk Florida Commission On Human Relations Building F. Suite 240 325 John Knox Road Tallahassee, Florida 32399 0700 Peter T. Hickey, Esquire Post Office Box 1323 Orlando, Florida 32802 Jeffrey J. Newton, Esquire Orange County Attorney's Office Orange County Administration Center Post Office Box 1393 Orlando, Florida 32802 1393
Findings Of Fact This case is an action for in-line-of-duty death benefits brought pursuant to Sections 120.57, 121.021(14), and 121.091(7), Florida Statutes. Carolyn W. Walker was the legal wife and is now the widow of Ronnie D. Walker, deceased. Carolyn W. Walker is the natural mother and legal guardian of Melanie L. Walker, age 9; Ronnie D. Walker, Jr., age 5; and Jason W. Walker, age 6 months; the minor children of Ronnie D. Walker, deceased. At the time of his death on December 4, 1976, and for the previous six years, Ronnie D. Walker was employed as a sergeant and deputy sheriff for the Leon County Sheriff's Department. Sgt. Walker was killed in an automobile/tank truck collision at the intersection of Woodville Highway and Oakridge Drive, Leon County, Florida. The location of the accident in which Sgt. Walker was killed was less than one mile from his residence on Oakridge Drive. Based upon the time his shift terminated and the location of the accident, Sgt. Walker had chosen the most direct route from the Leon County Jail to his residence. At the time of his death, Sgt. Walker was in full uniform and was armed. Sgt. Walker was a member of the Florida Retirement System at the time of his death and was entitled to the benefits provided for in Chapter 121, Florida Statutes. Carolyn W. Walker was the designated beneficiary of Ronnie D. Walker for death benefits payable under the provisions of Chapter 121, Florida Statutes. Subsequent to the death of her husband, Carolyn Walker made application to the Division of Retirement for in-line-of-duty death benefits, pursuant to Section 121.091(7)(c), Florida Statutes. All information, data and documentation required by the Division of Retirement was furnished by either Mrs. Walker or her attorneys. Deputies of the Leon County Sheriff's Department work a tour of duty known as a shift. The work day for the Leon County Sheriff's Department was at the time in question in this case divided into three shifts; 7:00 a.m. - 3:00 p.m., 3:00 p.m. - 11:00 p.m., 11:00 p.m. - 7:00 a.m. The deputies worked different shifts on a rotating basis, the times changing on a 28-day cycle. Sgt. Ronnie Walker worked the 11:00 p.m. - 7:00 a.m. shift on the evening of December 3, 1976 and morning of December 4, 1976. Sgt. Walker was the acting shift commander during this particular shift due to the absence of Lt. Ron Koenig, the regular shift commander. Therefore, in addition to his duties as a field deputy, Sgt. Walker assumed a supervisory role with responsibility for efficient operation of the evening shift on the tour of duty preceding his death. As part of his normal and routine duties, a shift commander or his replacement is responsible for initiating investigations of more serious incidents during his shift. It is not unusual for a shift commander's involvement in such investigations to extend well beyond the termination of the normal tour of duty, to include providing additional information needed as the investigation by the Sheriff's Department is continued. However, the responsibility for making routine investigations passes from the shift commander on duty when he is relieved by the oncoming shift commander. A shift ends when the shift commander checks in the field deputies from their patrol assignments and clears them from the Leon County. Once the field deputies have been cleared and relieved the shift commander is relieved. Deputies below the rank of shift commander, to include Sgt. Walker, were not assigned a sheriff's patrol car 24 hours a day. All shift commanders and above were assigned an official vehicle which they were required to use and have available at all times. Although the Leon County Sheriff at the time would have preferred to provide field deputies with patrol cars, field deputies had to furnish their own transportation to and from work due to lack of money. Field deputies would pick up their official vehicles at the Leon County Jail at the commencement of their tour of duty. Sgt. Walker, as deputy shift commander, was required to provide his own transportation to and from work, and at the time of his fatal accident was driving his personal vehicle. At the time of his death and for the preceding several years, Sgt. Walker and other deputies of the Leon County Sheriff's Department had been required by their employer, the sheriff of Leon County, to work many overtime hours in addition to the hours of their regularly scheduled formalized shifts. These additional hours of work were required by the sheriff due to the lack of money in the sheriff's budget to employ additional deputies. Neither Sgt. Walker nor the other deputies of the Leon County Sheriff's Department received regular compensatory pay or compensatory leave for these additional hours of work which they were required to perform. At the time of his death, having been cleared of his regular shift duties, Sgt. Walker was subject to performance of the following duties prescribed and required by his employer the sheriff of Leon County: Walker was required to be available by telephone 24 hours a day except when on leave. If Walker was not at his residence, he was required to advise the Leon County Sheriff's Office of a telephone number in which he could be reached. Sgt. Walker was required to enforce the laws of the State of Florida at all times with the exception established by the sheriff of Leon County that minor infractions which did not constitute a hazard to life or property or constitute a breach of the peace were not to be enforced. This policy was based upon a limited manpower of the sheriff's office and the existence of other law enforcement agencies specifically assigned the duty of traffic law enforcement and the enforcement of laws within the corporate city limits of municipalities within Leon County. In addition, Sgt. Walker was required to render assistance at any accident scene or other emergency situations in which he encountered at any time whether in uniform or in civilian clothes. Walker was required to carry his identification and a weapon at all times. Sgt. Walker was subject to recall to specifically assign duties at any time during the day. From observations of qualified individuals at the scene of the accident in which Sgt. Walker was killed, there was no indication tat the accident and death was the result of the enforcement of any law. At the time of his death, Walker was subject to the performance of all the duties enumerated in the paragraph above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the application of Carolyn W. Walker for death in-line-of duty benefits, based upon the death of he husband, Ronnie D. Walker, be approved and that she receive the death in-line-of-duty benefits payable under the provisions of Chapter 121, Florida Statutes. DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT CAROLYN W. WALKER, Petitioner, vs. CASE NO. 77-1463 STATE OF FLORIDA, DIVISION OF RETIREMENT, Respondent. /
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)
The Issue What amount of the personal injury settlement recovered by Petitioner, Weslen Bastien as mother and natural guardian of T.S.J., a minor (“T.S.J.” or “Petitioner”), must be paid to Respondent, Agency for Health Care Administration (“AHCA” or “Agency”), pursuant to section 409.910, Florida Statutes (2019), to fully satisfy the Agency's Medicaid lien totaling $279,299.76.
Findings Of Fact The undersigned makes the following findings of fact based on the stipulations of the parties and other evidence presented at the hearing. PARTIES’ STIPULATED FACTS AND LAW Weslen Bastien (“Ms. Bastien”) is the mother and natural guardian of T.S.J., a minor. On July 4, 2015, T.S.J. suffered permanent and catastrophic brain damage during her birth. She has been diagnosed with hypoxic-ischemic encephalopathy and resulting cerebral palsy. She cannot ambulate, roll-over, speak more than a few simple words, or perform any of the activities of daily living. She will always be totally dependent on others. In November 2016, Ms. Bastien served the required Notices of Intent to Initiate Medical Malpractice Litigation on the hospital and the delivering obstetrician. That initiated the statutorily mandated 90-day presuit screening period, which concluded in February 2017. At the conclusion of the presuit screening period, the hospital and the obstetrician denied the claim. In addition to denying negligence and causation, they asserted that the Florida Birth-Related Neurological Injury Compensation Plan (“NICA”) remedy was exclusive and barred a civil action for T.S.J.’s neurological injuries. On March 8, 2017, Ms. Bastien filed a petition pursuant to section 766.301, Florida Statutes, et seq., with DOAH seeking a determination that the notice requirements of section 766.316 were not met and that the NICA remedy was not exclusive and did not bar a civil action. The final hearing was held before the ALJ on December 19, 2017. The Final Order on Notice was entered on February 16, 2018. The Final Order on Notice acknowledged that the obstetrician did not provide NICA notice to Ms. Bastien on July 4, 2015. However, the parties stipulated, and the ALJ found, that he was excused from providing NICA notice on July 4, 2015, as Ms. Bastien presented in an emergency medical condition due to the onset and persistence of uterine contractions. Therefore, the obstetrician did not waive NICA exclusivity, and a civil action against him is barred. The ALJ found that the hospital did not provide NICA notice to Ms. Bastien in accordance with section 766.316. Therefore, NICA exclusivity does not apply to the hospital, and a civil action against the hospital is not barred. Ms. Bastien brought a medical malpractice lawsuit against the hospital to recover all of T.S.J.’s damages, as well as her individual damages associated with her daughter’s injuries. During the pendency of T.S.J.'s medical malpractice action, AHCA was notified of the action, and AHCA, though its authorized agent, Conduent Payment Integrity Solutions, asserted a $279,299.76 Medicaid lien against T.S.J.'s cause of action and settlement of that action. The Medicaid program, through AHCA, spent $279,299.76 on behalf of T.S.J., all of which represents expenditures paid for T.S.J.'s past medical expenses. A non-AHCA Medicaid provider, Prestige Health Choice, provided $30,430.54 in past medical expenses on behalf of T.S.J. Another non-AHCA Medicaid provider, WellCare, provided $58,034.25 in past medical expenses on behalf of T.S.J. Finally, one other non-AHCA provider, Miami Children’s Health Plan, provided $8,562.65 in past medical expenses on behalf of T.S.J. Accordingly, a total of $376,327.20 was paid for T.S.J.'s past medical expenses. The medical malpractice case was resolved by way of a confidential settlement. As a condition of T.S.J.’s eligibility for Medicaid, T.S.J. assigned to AHCA her right to recover from liable third-parties medical expenses paid by Medicaid. See 42 U.S.C. § 1396a(a)(25)(H) and § 409.910(6)(b), Fla. Stat. Petitioner has agreed to hold the Medicaid lien amount in trust pending an administrative determination of AHCA’s rights, and this constitutes “final agency action” for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). Petitioner and AHCA agree that application of the formula in section 409.910(11)(f) to the $8 million-dollar settlement recovery requires payment to AHCA in the full $279,299.76 amount of the Medicaid lien. Petitioner and AHCA agreed that the 2020 version of section 409.910 controls jurisdiction of DOAH in this case. Petitioner and AHCA agreed that the burden of proof at the hearing for Petitioner in contesting the amount payable to AHCA is clear and convincing evidence. § 409.910(17)(b), Fla. Stat. Petitioner and AHCA agreed that DOAH has jurisdiction under section 409.910(17)(b) to determine the portion of a total recovery which should be allocated as past medical expenses. The parties stipulated that AHCA is limited in the section 409.910(17)(b) procedure to the past medical expense portion of the recovery. See Giraldo v. Ag. for Health Care Admin., 248 So. 3d 53, 56 (Fla. 2018). EVIDENCE AT HEARING At the final hearing, Petitioner presented the testimony of two witnesses: Robert T. Bergin, Jr., Esquire (“Bergin”), Petitioner’s personal injury attorney, and R. Vinson Barrett, Esquire (“Barrett”), an experienced trial lawyer who handles catastrophic personal injury cases. Over AHCA’s objections, both Bergin and Barrett were accepted as experts on the valuation of personal injury damages for an individual. Barrett has practiced law since 1977 and is currently a partner with the firm of Barrett, Nonni and Homola. He handles medical malpractice and catastrophic personal injury cases. Barrett stays current with jury verdicts. As part of his work, Barrett routinely assesses the value of damages suffered by injured parties. The valuation of personal injury cases has been a necessary and ongoing part of his practice since 1978. Barrett testified that he has been recognized as an expert in the valuation of catastrophic personal injury cases at DOAH over 30 times. Barrett reviewed all the exhibits in this case. To come to a valuation determination in any given case, he related that he looks at medical records and reports of other experts who have given impairment ratings and other assessment reports. In this case, he reviewed a habitation assessment preliminary report prepared by Susan K. McKenzie, MS. Barrett also reviews life care and continuation of care reports for future medical needs. In this case, he reviewed a report prepared by Dr. Craig H. Lichtblau, and an economist’s report regarding the present value of economic damages prepared by Bernard F. Pettingill, Jr., Ph.D. Barrett was tendered as an expert regarding valuation of personal injury damages and resolution of liens in personal injury cases. The Agency objected for lack of foundation. The undersigned found that Petitioner had set forth an adequate basis and predicate, and permitted Barrett to give his opinion as to the valuation of the underlying personal injury claim by Petitioner. Barrett testified that, in his opinion, the total damages suffered by T.S.J. were valued at $40 million. This was based on the fact that T.S.J.’s economic damages were over $27 million. Added to this were her non- economic damages for such things as loss of enjoyment of life and pain and suffering, which he valued at another $25 million. Barrett based his opinion, in part, on several other comparable personal injury cases he studied resulting in damages in the range of $40 million. In comparing the $40 million to the settlement proceeds of $8 million, Barrett concluded that T.S.J. recovered only 20 percent of her total damages. The 20 percent would apply to each element of damages, including past medical expenses. Barrett concluded that if she only recovered 20 percent of her total damages, then likewise only 20 percent of her past medical expenses were recovered in the confidential settlement. As a result, he concluded that AHCA’s Medicaid lien should be reduced proportionately to 20 percent of $376,327.20, or $75,265.44. On cross-examination, however, Barrett was unable to clearly or convincingly break down or list out with any specificity the amounts he felt would have been contained in the confidential settlement of $8 million for each type of damage. This included what the damages would have been for economic, non-economic or the past medical expense portions of the confidential settlement.1 Nonetheless, Barrett’s testimony concerning (1) the value of the case and (2) the use of the pro rata or proportionality methodology was not persuasively rebutted or contradicted by AHCA's counsel on cross- examination, or by any other evidence. Bergin is a 44-year practicing attorney, who is a sole practitioner in West Palm Beach, Florida. He testified regarding his representation of T.S.J. and her family. 1 Regardless, as will be noted herein, this evidence was not essential to the viability or use of the proportionality formula approved in Eady v. Agency for Health Care Administration, 279 So. 3d 1249 (Fla. 1st DCA 2019), and subsequent cases. Bergin handles serious/catastrophic medical malpractice injury cases, exclusively for plaintiffs. He specializes in handling complex medical malpractice claims. Bergin was admitted to the Florida Bar in 1977 and began an active trial practice with an insurance defense firm. He maintained a very active medical malpractice defense practice until the mid-1980s. He tried cases involving catastrophic brain injuries to infants and quadriplegics. As defense counsel, he was required to evaluate cases and provide his valuation to the insurance companies so they could set their accounting reserves. Since the mid-1980s, Bergin has exclusively represented plaintiffs in personal injury cases. He primarily handles complex medical malpractice cases. He has been board certified in civil trial law since 1983. In his practice, he has handled cases with personal injuries similar to those suffered by T.S.J. Bergin regularly evaluates the damages suffered by injured people such as T.S.J. He was familiar with T.S.J.’s damages from his representation of T.S.J. in the personal injury lawsuit. Bergin was tendered as an expert regarding the valuation of personal injury damages. The Agency objected on the grounds that there was an insufficient basis to find that Bergin has experience with valuation of damages. Bergin went on to testify, in part, that the valuation of damages was necessary to properly represent a personal injury plaintiff and that he has been evaluating damages on personal injury cases since 1977. After counsel elicited further evidence concerning Bergin’s background and experience, AHCA had no further objection to Bergin’s additional qualifications. The undersigned allowed Bergin to provide his expert opinion on the valuation of catastrophic personal injury cases, including T.S.J.’s. Bergin testified as to the nature of the litigation on behalf of T.S.J. and the difficult liability issues related to T.S.J. and her injuries. As part of his work-up of this case, he concluded that the full value of the case was $40 million and made an initial demand for that amount. After litigating the case for several years, Bergin negotiated a confidential settlement of $8 million.2 He testified that at the outset he did a thorough evaluation of the case. He was familiar with the issues, having handled similar cases. The neuroradiology report identified an injury to T.S.J.’s thalamus, which is indicative of an acute near total asphyxia. This was consistent with the difficulties experienced during T.S.J.’s birth. Bergin testified that he also retained damage experts to assist him in determining T.S.J.’s economic losses, reduced to present money value. The economic losses were calculated by his experts to be in excess of $27 million. Bergin testified, without objection, that if the default formula in section 409.910 was used, it would run afoul of the Federal anti-lien law. He also testified that the pro rata (proportionality) methodology was an approved and appropriate method to determine the amount of damages fairly allocable to past medical expenses in an undifferentiated settlement agreement. Applying the proportionality ratio and methodology, Bergin opinied that T.S.J. recovered 20 percent of her past medical expenses in the confidential settlement and that AHCA’s recoverable Medicaid lien should be limited by that percentage as well. On cross-examination by AHCA’s counsel, however, Bergin, like Barrett, was unable to clearly or convincingly break down or list out the 2 It is worth noting that Bergin did not directly opine at hearing that the total value of the case was $40 million. Rather, he relied upon his initial demand as evidence concerning his opinion of the value. specific amounts he felt would have been contained in the final settlement of $8 million for each type of damage. This included what the breakdown of damages would have been for economic, non-economic, or the past medical expense portion of the confidential settlement. Nonetheless, Bergin’s testimony concerning the value of the case and the use of the proportionality methodology and resulting allocation was not persuasively rebutted or contradicted by AHCA's counsel on cross- examination or by any other evidence offered by AHCA. Both witnesses reviewed adequate portions of T.S.J.’s medical information and other information before offering their opinions regarding the amount fairly allocable to past medical expenses in the settlement. AHCA did not offer any evidence to rebut the credentials or testimony of Bergin or Barrett regarding the total value of T.S.J.’s claim, or the proportionality methodology they proposed to reduce AHCA’s lien. Likewise, AHCA did not offer any alternative expert opinions on the damage valuation or allocation method proposed by Bergin or Barrett. The undersigned finds that Petitioner has established by clear and convincing evidence that the $8 million-dollar recovery is 20 percent of the total value of Petitioner’s damages totaling $40 million. Using that same 20 percent and applying the current proportionality methodology approved by the First District Court of Appeal in Eady, Petitioner has established that 20 percent of $376,327.20, or $75,265.44, is the amount of the confidential settlement fairly allocable to past medical expenses and is the portion of the Medicaid lien payable to AHCA.
Findings Of Fact At about 12:00 noon on January 31, 1971, an automobile collision occurred in Clay County, Florida, between David Earl Mattox and Douglas Jay Gilbert. Mattox, driving a Chevrolet pick-up, slid into the rear of Gilbert's Ford sedan after being unable to stop on the wet pavement. Mattox was uninjured and Gilbert complained of a slight headache. An acquaintance of Gilbert was riding in Gilbert's car as a passenger. Neither driver reported the accident at that time and, in fact, drove his own vehicle to Gilbert's place of business to talk about the accident. A decision was made at that meeting to handle the matter privately without notification of insurance companies or law enforcement, authorities. Later that day, Gilbert's head and neck began hurting so Gilbert's father took him to a doctor in Green Cove Springs. The doctor advised Gilbert that he had suffered whiplash. Gilbert continued to visit the hospital for about two days for treatment and diagnosis. That same evening, after the diagnosis was received, Gilbert's father called Mattox and advised him that the accident should be reported. Mattox agreed and at approximately 5:00 p.m. on the day of the accident, Mattox called Libby at home. Mattox had planned a trip to Daytona Beach that evening so Libby agreed to wait until the next day to make his investigation of the accident. At about 3:00 p.m., February 1, 1977, Libby met with Mattox and Gilbert's father at Mattox's place of business. At that time, Libby interviewed Mattox and Gilbert's father, inspected Mattox's vehicle and prepared the accident report. Gilbert was not present at the meeting and at no time did Libby interview him or Gilbert's passenger regarding the accident. At no time did Libby inspect Gilbert's vehicle. Although another Florida Highway Payroll trooper was on duty in the area, Libby agreed to conduct the accident investigation even though he was not on duty. Libby attended the meeting in civilian clothes. Libby did not investigate the scene of the accident. The accident report prepared by Libby fails to disclose that Gilbert's vehicle contained a passenger and fails to include a diagram of the collision. The accident report recites the amount and degree of damage to Gilbert's car, notwithstanding Libby's failure to inspect the vehicle. The stated damages in the accident report are $150.00 whereas the actual damages were closer to $400.00. As reflected in the accident report, no arrests or charges were made as a result of the collision. As of the time of the hearing, no charges had been made and no supplemental report had been filed. It is the policy of FHP that all vehicles be inspected and all principals be interviewed, if possible, prior to the final preparation of an accident report. In addition, it is policy that Highway Patrol officers be in uniform when performing their duties. The accepted procedure in these circumstances would have been for Libby to either contact an on duty trooper to go on duty himself in uniform prior to investigating the accident. Libby has been previously disciplined for negligence in the performance of his duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Career Service Commission sustain the action taken by FHP. DONE and ENTERED this 8th day of September, 1977, in Tallahassee, Florida. MICHAEL R.N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. B. M. Libby Post Office Box 322 Green Cove Springs, Florida 32043 Edwin E. Strickland, Esquire General Counsel Neil Kirkman Building Tallahassee, Florida 32304 Mrs. Dorothy B. Roberts Room 530 Carlton Building Tallahassee, Florida 32304 Enoch J. Whitney, Esquire Assistant General Counsel Neil Kirkman Building Tallahassee, Florida 32304
Findings Of Fact On December 30, 1991, the Petitioner, Peter B. Dolinger, filed a Petition for Administrative Determination of Rule Validity. In the Petition, the Petitioner challenged Rule 33-11.013, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner alleged that he was serving a county jail sentence of one year, imposed on March 4, 1991. Subsequent to the filing of the Petition, the Petitioner was released from custody. The Petitioner is no longer subject to the rules of the Respondent, including the Challenged Rule. The Petitioner has failed to allege any facts which would support a conclusion that he is currently subject to the Challenged Rule or that the Challenged Rule has any continuing impact on him. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida.
The Issue The issue is whether Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes.
Findings Of Fact USB is a general contractor engaged in the construction industry and is properly registered to conduct business in the State of Florida. The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation coverage for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. On May 30, 2007, Department Investigator Teresa Quenemoen conducted an investigation or compliance check of USB to determine liability for workers’ compensation coverage. As a result of that investigation, an Order of Penalty Assessment was issued on June 18, 2007, assessing USB a penalty in the amount of $14,983.95. Attached on the opposite side of the page from the Order was a Notice of Rights directing the recipient how to properly respond if he wished to contest the penalty. Quenemoen received a letter, dated June 21, 2007, from J. Roland Fulton, President of USB, which states that he “strongly disagrees” with the Department’s allegations that USB failed to secure adequate workers’ compensation coverage and he wants to “resolve” the matter and “void the Order of Penalty.” If the Department could not make that happen, he wanted to have the “Appeal Procedures.” In a consultation with her Supervisor, Robert Lambert, regarding how to respond to Fulton’s letter, Quenemoen was advised to immediately contact USB and advise them of the Notice of Rights and timeline requirements for any petition they may wish to file. This conversation took place well within the 21-day period for request of formal administrative proceedings. Quenemoen was also advised to provide a copy of the Notice of Rights to USB. Quenemoen, however, delayed taking any action until she contacted USB via letter on August 3, 2007, after the expiration of the timeline requirements for timely filing which occurred on July 9, 2007. Quenemoen indicated within her August 3, 2007 letter to USB that the original date of the Order was the operative date. Robert Lambert testified that the June 21, 2007, letter of USB’s president contained most of the requirements considered necessary for the letter to have been viewed as a petition for administrative proceedings and would have been so considered had the words “Petition for Hearing” appeared at the top of the page. He is also unaware of any prejudice that would result to the Department if the matter of penalty assessment against USB were permitted to proceed to a hearing on the merits of the matter. Quenemoen, in her deposition, opines she did not consider the June 21, 2007, letter to be a petition because she thought it lacked crucial items, such as an explanation of how the party’s substantial interests would be affected by the agency’s decision; disputed items of material fact; and a concise statement of ultimate facts alleged. Quenemoen’s August 3, 2007 letter to USB, inquired why USB had neither paid their penalty nor entered into a Payment Agreement Schedule for Periodic Payment of Penalty, pursuant to Section 440.107, Florida Statutes. The letter re-informed USB that it had 21 days from the receipt of the original Order of Penalty Assessment to file a petition for hearing. On August 23, 2007, the Department received a Petition for Hearing from USB’s counsel. The Department determined the Petition filed by USB met the content criteria but failed on timeliness as it was filed more than forty days past the deadline of July 9, 2007. USB, through the testimony of its President, Mr. Fulton, admitted that he was not “familiar with the law. I did not go look it up.” He also said, “I did not think I needed to go back and consult the textbook of the law.” When asked if he ever decided to consult with a lawyer during the 21-day period, he stated he did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Financial Services enter a Final Order that Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes, and proceed forthwith with provision of such proceedings. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2008. COPIES FURNISHED: William H. Andrews, Esquire Coffman, Coleman, Andrews and Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Marc A. Klitenic, Esquire Kandel, Klitenic, Kotz and Betten, LLP 502 Washington Avenue Suite 610 Towson, Maryland 21204 Kristian E. Dunn, Esquire Anthony B. Miller, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Daniel Y. Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 The Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent is guilty of employment discrimination against Petitioner.
Findings Of Fact Petitioner was born in Spain and is of Hispanic origin. At all material times, he has been employed by Respondent. Since 1992, he has been employed as a truck driver. At the time of the incident described below, Respondent was a Waste Truck Driver. His job was to drive a 66,000-pound truck in Miami to collect garbage from the utility customers. On February 28, 2006, Petitioner was operating his truck along Northwest 54th Street. This is a major east-west arterial through central Dade County. At the location of the incident, this busy road contains five lanes of traffic. Leaving a strip mall, from which he had just collected garbage, Petitioner drove the truck across this arterial, crossing double-yellow lines in the middle, in order to save time in driving to the next pick-up location. Petitioner was not at an intersection and knew that the double-yellow lines meant that his maneuver was illegal. Petitioner "explains" that he chose to do this maneuver at the urging of the Waste Collectors riding on the back of the truck and with the knowledge that other truck drivers had done it too. Unable to clear all of the lanes at one time, Petitioner was forced to stop the truck around the middle of the highway at an angle closer to perpendicular than parallel to the direction of the traffic flowing around him. A collision resulted when a passenger car tried to pass the garbage truck on the left at the same time that Petitioner moved his truck forward to try to complete his maneuver. After an investigation, Petitioner's supervisor, who is black, decided to demote him to Waste Collector, which resulted in a small decrease in pay, but presumably less-preferred tasks involving more direct contact with solid waste. The supervisor weighed Petitioner's substantial experience with Respondent as a driver against the facts that he could have prevented this accident, even though he did not receive a citation, and that he has had five other preventable accidents while driving Respondent's vehicles. Respondent had previously required Petitioner to take good-driving courses on three occasions due to avoidable accidents. He had also been given progressive discipline for his driving mishaps, culminating in an eight-day suspension for his last accident, which was in December 2004. Petitioner claimed to his supervisor that he had done nothing wrong, that he had not violated any rules, and that everyone drives like he did. The supervisor was unfavorably impressed by his failure to accept responsibility for the accident and his nonchalant attitude. The supervisor legitimately concluded that this attitude combined with Petitioner's driving history unreasonably raised the risk of additional accidents caused by Petitioner. Petitioner's attempt to show disparate treatment was unpersuasive. Either similar discipline was imposed for a similar number of similar offenses, supervising personnel were different, or the similarity of past offenses could not be determined. Petitioner's supervisor testified that she did not demote him because he is Hispanic, and this testimony is credited.
Recommendation Based on the foregoing, It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of September, 2009, 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 11th day of September, 2009. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Eric A. Rodriguez, Esquire Office of Dade County Attorney 111 Northwest First Street, Suite 2810 Miami, Florida 33128-1930 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
