The Issue Whether Petitioner is entitled under Florida’s workers’ compensation laws to payment for professional services to an injured worker for the billings identified by the three notices of disallowance at issue in this consolidated proceeding.
Findings Of Fact The claimant, a male, was born July 21, 1961. On February 17, 1995, the claimant sustained a severe traumatic brain injury (TBI) and other injuries during the course of his employment with the City of Hollywood, Florida. At all times relevant to these proceedings, the claimant has been receiving benefits pursuant to the Florida workers’ compensation laws. At all times relevant to this proceeding, the carrier has been the workers’ compensation carrier for the employer. At all times relevant to this proceeding, the claimant has lived in a home purchased for him by the carrier. The claimant has a life estate in the home and the carrier has the remainder interest. The claimant lives in the home with his mother and has 24-hour attendant services paid for by the carrier. The carrier has purchased a van for the claimant, which his attendant uses to transport the claimant to therapy and other appointments. The claimant has a history of mental illness dating to his teenage years, when he was diagnosed with schizophrenia. As a result of his injury and his illness, the claimant acts out periodically and becomes physically resistive to those trying to care for him. At all times relevant to this proceeding, Petitioner has been a provider of rehabilitation services to various patients, including those with TBI. Dr. Marie DiCowden, a psychologist, is the founder and director of Petitioner. Dr. DiCowden described Petitioner as being a health care community that provides an integrated administration for a long continuum of care post acute rehabilitation through community reintegration using health promotion, prevention, and integrated primary care. Petitioner is accredited by two national accrediting organizations referred to by the acronyms CARF (Commission on Accreditation of Rehabilitation Facilities) and CORF (Commission on Outpatient Rehabilitation Facilities). Petitioner is also certified by the Florida Division of Vocational Rehabilitation (formerly housed in the Department of Labor and now housed in the Department of Education), the Florida Division of Workers’ Compensation, and by the Florida Brain and Spinal Cord Injury Program.4 As a result of his accident, the claimant was in a coma for several weeks. He was hospitalized (first in an acute care facility and subsequently in two different rehabilitation hospitals) until December 28, 1995, when he was placed in Whitehall Nursing Home. Whitehall was not an appropriate placement for the claimant because of his behavior and his need for rehabilitation services. On March 27, 1996, Yvonne Beckman, a rehabilitation nurse consultant employed by the carrier, referred the claimant to Petitioner for an evaluation. Shortly before that referral, the claimant had been evaluated by two neuropsychologists (Dr. Jorge A. Herra and Dr. Lee. H. Bukstel), who had opined that the claimant would benefit from rehabilitation services. Ms. Beckman asked Dr. DiCowden to recommend a neurologist who practiced in South Florida. In response, Dr. DiCowden gave Ms. Beckman the names of three neurologists, one of whom was Dr. Paul Wand. Ms. Beckman authorized Dr. Wand to provide services to the claimant. Dr. Wand prescribed continued rehabilitation services for the claimant at Petitioner’s facility. The services at issue in this proceeding were provided by Petitioner pursuant to prescriptions from Dr. Wand.5 Prior to accepting the claimant, Dr. DiCowden informed a representative of the carrier that Petitioner would accept the claimant as a patient in its brain injury program and estimated the annual costs to be $200,000.00. The claimant began receiving rehabilitation services from Petitioner five days a week beginning August 1, 1996. The claimant received from Petitioner’s staff physical therapy, occupational therapy, cognitive retraining, speech training, language training, psychological services, art therapy, music therapy, and yoga therapy. The claimant continued to receive those rehabilitation services from Petitioner (five days a week) from August 1996 to the date of the hearing (and presumably to date). The authorization for the provision of rehabilitation services to the claimant was periodically reviewed by the carrier. In November 1998, the carrier had the claimant examined by Dr. Richard Bailyn (a neurologist) and by Dr. Kevin Lapinski (a neuropsychologist). Those doctors opined that the claimant was not benefiting from cognitive retraining, occupational therapy, speech therapy, or language therapy at Petitioner’s facility. They further opined that the claimant required an activity program to satisfy his recreational and stimulation needs, but that such a program did not require Petitioner’s facility since the claimant’s aide could be trained to provide those services. Dr. Bailyn was of the opinion that as of November 1998 the various therapies provided by Petitioner’s facility to the claimant were not reasonable and were not medically necessary. Section 440.13(6), Florida Statutes, requires a carrier to review bills by providers of medical services as follows: (6) UTILIZATION REVIEW.--Carriers shall review all bills, invoices, and other claims for payment submitted by health care providers in order to identify overutilization and billing errors, including compliance with practice parameters and protocols of treatment established in accordance with this chapter, and may hire peer review consultants or conduct independent medical evaluations. Such consultants, including peer review organizations, are immune from liability in the execution of their functions under this subsection to the extent provided in s. 766.101. If a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with this chapter, it must disallow or adjust payment for such services or error without order of a judge of compensation claims or the agency, if the carrier, in making its determination, has complied with this section and rules adopted by the agency. As required by Section 440.13(6), Florida Statutes, the carrier conducted a utilization review of the services provided by Petitioner to the claimant beginning in late 1999. The carrier retained Dr. Thomas G. Hoffman to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On April 10, 2000, Dr. Hoffman submitted a report that included several conclusions, including those that follow. The claimant has severe, residual deficits as a result of his accident. He requires 24-hour attendant care. There is no reasonable expectation for further improvement. The therapy he was receiving at that time (and still receives) was not reasonable or medically necessary. The therapy was excessive in frequency and duration. Dr. Hoffman’s deposition testimony was consistent with his written report. The carrier retained Dr. Victor B. Robert to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On June 19, 2000, Dr. Robert submitted a report that included several conclusions, including those that follow. The treatment rendered by Petitioner was excessive in frequency and duration. The claimant reached an improvement plateau in early 1997 and therapy was thereafter needed only for maintenance reasons. Dr. Robert’s testimony was consistent with his written report. The carrier retained International Assessment Systems, Inc. (IAS), a professional association of various medical practitioners, to conduct an independent neurological, neuropsychological, and psychological examination of the claimant. On September 22, 2000, IAS submitted a report (Intervenors’ Exhibit 8) based on the examinations of claimant and the review of his medical records by Dr. Kenneth C. Fischer, Dr. Alan J. Raphael, and Dr. Charles J. Golden. The report included several observations and conclusions, including those that follow. The testimony of Drs. Fischer, Raphael, and Golden was consistent with the written report they prepared for IAS. Pages 12-13 of the IAS report contain the following: [The claimant] was oriented to person, but not to place or time. He did not know the current day, date, month, or year. His sensorium was significantly impaired. His mood was volatile, ranging from normal to agitated. His affect was similarly labile, at times he was placid, laughing, and able to converse at a basic level, however he was also quite violent. Attention and concentration were significantly impaired. His receptive, expressive and fluency language capabilities were similarly impaired, although, as noted, he was capable of basic/functional [sic] communication. There were no direct indications of hallucinatory or delusional phenomena, however, based on his behavior, it is likely that some hallucinatory or delusional phenomena were present. His reality testing and insight were significantly impaired. During his repeated fits of anger, he often uttered suicidal and homicidal threats, however there was no evidence of actual intent or plan. He showed no ability to monitor his own safety. Page 15 of the IAS report contains the following: From a neuropsychological and psychological perspective, there were gross impairments noted in his cognitive abilities and emotional functioning. . . . He has been afforded considerable time to maximize his cognitive recovery at this point. It is clear that he has plateaued with regard to cognitive improvement. He will not benefit from continued rehabilitation efforts, although he will require continued stimulation to avoid further cognitive decline. His mood and labile affect may also be benefited by continued stimulation in terms of recreational activities to provide appropriate quality of life.6 Page 17 of the IAS report contains the following under the heading “Neurologic Impression”: . . . I [Dr. Fischer] would recommend that he be placed in a supervised residential setting which will give better protection for him and his caregivers than his present home setting. As the patient is four and a half years status post-injury, specific rehabilitative and therapeutic endeavors will have no benefit and are unwarranted. This would relate to hyperbaric oxygen and cognitive rehabilitation was well as any form of physical, occupational, or speech therapies. Page 19 of the IAS report contains the following: [The claimant] was certainly aided by initial removal from the nursing home and receiving cognitive and physical therapies at Biscayne. However, he has long since reached a plateau in his improvement and no further improvement can be expected at this time. Maximum medical improvement should have been reached within 18 to 24 months post-injury. Any treatment after that time would be palliative or maintenance-oriented (sic). Therefore, the treatment prescribed by Dr. Wand became unreasonable and medically unnecessary several years ago. Page 20 of the IAS report reflects the opinion that while the treatments at Petitioner’s facility were excessive in all respects, the claimant does require maintenance rehabilitation services. It is opined that cognitive retraining is no longer appropriate, but that cognitive tasks and games are appropriate in a recreational setting. By letter dated October 27, 2000, the carrier, through its counsel, advised Petitioner that based on its Utilization Review investigation, it had concluded that as to the identified dates of service “. . . there has been overutilization and/or misutilization since the treatment has been excessive and not medically necessary.” This Letter of Disallowance was the first of a series of letters sent by counsel for the carrier to Petitioner, and frames the issues for all of the disallowances at issue in this proceeding. Thereafter, Petitioner timely disputed the carrier’s basis for disallowing its services to the claimant and petitioned the Respondent to resolve the dispute. The total amount disallowed and at issue in this consolidated proceeding is $615,587.00. Respondent employed four Expert Medical Advisors (EMAs) to perform peer review and assist it in resolving the dispute involving the rehabilitation services provided the claimant by Petitioner. Respondent employed Dr. Fernando G. Miranda, Dr. Jorge Villalba, Dr. Gerard P. Garcia, and Dr. David McCraney to serve as EMAs.7 Each of these doctors prepared a report following his review and each sat for deposition. Dr. Miranda’s report, dated September 17, 2001, is attached to his deposition (Intervenors’ Exhibit 17). The report included several conclusions, including those that follow. The referral for intensive multi-disciplinary treatment at Petitioner’s facility is no longer medically necessary. The services provided by Petitioner are excessive in frequency and duration and he will not further improve with speech therapy, cognitive retraining, occupational therapy, or individual psychotherapy. Maintenance physical therapy is recommended. Dr. Miranda testified in his deposition that the recommended physical therapy could be performed by the claimant’s attendant. Dr. Miranda’s deposition testimony was consistent with his written report. Dr. Villalba’s report dated October 15, 2001, is attached to his deposition (Intervenors’ Exhibit 19). The report included several conclusions, including those that follow. The claimant reached maximum medical improvement between February 1996 and October 1997. Dr. Villalba described the services provided by Petitioner to claimant “clearly not medically necessary” after October 1997. He also opined that the claimant will require maintenance physical therapy, occupational therapy, and speech and language therapy on a continuing basis. Dr. Villalba’s deposition testimony was consistent with his written report. Dr. Garcia’s undated report was prepared during the second week of October, 2001, and is attached to his deposition (Intervenors’ Exhibit 16). The report included several conclusions, including those that follow. The claimant should be on a maintenance program and Petitioner’s treatment was excessive. The claimant is unlikely to make further neuropsychological improvement, but he should be treated by a psychiatrist for his schizophrenia. Dr. Garcia’s deposition testimony was consistent with his written report. Dr. McCraney’s report dated November 18, 2001, is attached to his deposition (Intervenors’ Exhibit 18). The report included several conclusions, including those that follow. While the care provided Petitioner appears to be excellent, the claimant is far beyond the point where Petitioner’s therapies would be reasonable or medically necessary. Dr. McCraney’s deposition testimony was consistent with his written report. Dr. DiCowden testified at length about the various services her facility provides the claimant and the records her staff generates as a result of those services. Dr. DiCowden testified that her staff is well-trained in assessing the functional status of rehabilitation patients using nationally recognized assessment methodologies. FIN-FAM, acronyms for “Functional Independence Measures” and “Functional Assessment Measures” is one assessment measure used by Petitioner’s staff. The FIN-FAM measure purports to quantify a patient’s progress or lack thereof and can be used by staff as a tool in developing treatment strategies. Dr. DiCowden presented a chart of the FIN-FAM scores for the claimant for the periods at issue in this proceeding. The chart, prepared for this litigation, reflects steady functional improvement of the claimant. Dr. DiCowden further testified that Petitioner’s staff uses a scale of cognitive functioning developed by a rehabilitation facility known as Rancho Los Amigos Hospital, which measures a patient’s response to stimuli on a scale of Ranch Level I (no response) to Ranch Level VII (appropriate response). She asserts that the measurement of the claimant’s status using the Rancho methodology reflect that the claimant has improved over the years. In support of its position that the claimant steadily progressed while undergoing therapy at its facility, Petitioner presented the testimony of Drs. Antonio Puente, Vernando Batas, and Richard Kishner who observed the claimant at Petitioner’s facility on June 23, 2003, September 13, 2003, and February 24, 2004, respectively. Each of these witnesses had the subjective impression that the claimant was benefiting from therapy at Petitioner’s facility. Petitioner asserts that the FIN-FAM scores, the Rancho Levels, and the testimony of its experts establish that the claimant is benefiting from therapy. That assertion is rejected as being contrary to the greater weight of the credible evidence. The FIN-FAM scoring and the Rancho scale depend on the subjective impressions of the various therapists who treat the claimant at Petitioner’s facility and the record reflects that the scoring was done on an irregular basis.8 Dr. DiCowden adamantly disagreed with the contention that the rehabilitation services provided by her facility is not reasonable or medically necessary. All evidence presented by Petitioner, including Dr. DiCowden’s testimony, has been carefully considered by the undersigned in resolving the conflicts in the evidence. At best, Petitioner established that the claimant made some unquantified amount of progress in the highly structured therapeutic setting at Petitioner’s facility. Intervenors’ experts clearly established that any progress made by the claimant in therapy did not transcend that therapeutic setting to the real world. Petitioner failed to establish by a preponderance of the evidence that the rehabilitation services it provided the claimant were appropriate and medically necessary. To the contrary, the greater weight of the credible evidence established that at all times relevant to this proceeding the rehabilitation services provided by Petitioner to the claimant have been excessive and that those excessive services have been neither reasonable nor medically necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that sustains the disallowances at issue in this consolidated proceeding. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 15th day of June, 2004.
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, 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 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
Findings Of Fact On August 19, 1986, Petitioner was licensed as a chiropractor in the State of Florida and was issued license number CH0005434. When Petitioner's chiropractic practice subsequently became insolvent, he considered other possibilities for employment whereby he could use his skills and yet occupy a salaried position. One of the possibilities he considered was becoming a rehabilitation service provider. He contacted the Division of Workers' Compensation of the Florida Department of Labor and Employment Security and discussed with Paul Lincolnhol the requirements for such employment. Lincolnhol specifically told Petitioner, and Petitioner fully understood, that Petitioner could not be licensed as a chiropractor since Section 440.49(1)(b)4.c, Florida Statutes, specifically prohibited licensed chiropractors from being employed as rehabilitation service providers. On November 15, 1990, Petitioner personally appeared at the office of the Board of Chiropractic. He advised an employee as to what he wanted and was told to put his request in writing. On a blank sheet of paper Petitioner wrote the following letter: On this day of 11/15/90, I Philip Whitebook am relinquishing my Florida State license #CH 000 5434 to practice Chiropractic. I am asking you to take back this license and revoke all privelages [sic] associated with it. Petitioner signed that letter and gave it to a Board employee. That employee, pursuant to Petitioner's further request, prepared a letter directed to Paul Lincolnhol. That letter contained a copy of Petitioner's license which reflected an expiration date of December 31, 1991. The letter read as follows: This will advise that Dr. Philip Whitebook (CH 0005434) has voluntarily relinquished his Florida State Chiropractic license effective on this day of November 15, 1990. Petitioner was provided with a copy of the letter to Lincolnhol. By letter dated January 25, 1991, Petitioner was approved by the Division of Workers' Compensation, Florida Department of Labor and Employment Security, as a rehabilitation service provider and was assigned provider number XI0003924. In July of 1992, Petitioner renewed his rehabilitation service provider license which extended the expiration date of that license until June 30, 1994. At some point, the information in the computer of the Florida Department of Professional Regulation, now known as the Department of Business and Professional Regulation, was changed to reflect that Petitioner's license had been placed in a category called "involuntary inactive." On April 9, 1992, the Board sent a notice to Petitioner at his last known address informing him that his chiropractic license had not been renewed as of December 31, 1991, and had therefore automatically expired. That notice further advised Petitioner that if he did not complete the steps necessary to reinstate his license by June 30, 1992, his Florida chiropractic license would become null and void. Petitioner did not receive that letter since the address shown in the Board's records was no longer Petitioner's current address. In October of 1992, a friend of Petitioner who was also a chiropractor, moved to Florida. Petitioner and his friend decided that they would open a chiropractic practice together. On November 7, 1992, Petitioner contacted the Board requesting that his "inactive" license be "reinstated." That was the first contact Petitioner had with the Board after November 15, 1990. By letter dated January 20, 1993, the Board advised Petitioner that his license could not be reinstated since it was null and void by operation of law, pursuant to Section 460.407, Florida Statutes. That letter further advised Petitioner that his recourse was to reapply for licensure and pass the examination. By letter dated February 3, 1993, Petitioner wrote to the Division of Workers' Compensation advising that he was no longer employed as a rehabilitation service provider and was attempting to reactivate his license to practice chiropractic. Although the letter does not so indicate, Petitioner testified that he enclosed his rehabilitation service provider license with the letter, thereby returning his license to the Department of Labor and Employment Security at that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to have his chiropractic license reinstated. DONE and ENTERED this 23rd day of May 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 23rd day of May 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6556 Respondent's proposed findings of fact numbered 1-5 and 7-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. COPIES FURNISHED: Philip B. Whitebook, D.C. Post Office Box 15314 Plantation, Florida 33318-5314 Allen R. Grossman, Esquire Assistant Attorney General Office of Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Diane Orcutt, Executive Director Department of Business and Professional Regulation Board of Chiropractic Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0752 Jack McRay, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0752
The Issue Whether Petitioner's request for exemption pursuant to Section 400.512, Florida Statutes, should be granted.
Findings Of Fact On May 21, 1990, Petitioner, Orlando Rueda (Rueda), was arrested on charges of sexual battery on a child. The charges arose from incidents which occurred in 1983. On September 5, 1991, Rueda plead nolo contendere to five counts of attempted sexual battery on a child, Sections 777.04(1) and 794.011(2), Florida Statutes, and to two counts of indecent assault, Section 800.041(1), Florida Statutes. Adjudication was withheld, and Rueda was sentenced to five years probation, the terms of which included no contact with the victim or his family, no employment involving children, and a psychological evaluation. Rueda maintains that he is not guilty of the crimes for which he pled nolo contendere but states that because of financial difficulties in continuing with his defense and of the possibility that he could be sentenced to life imprisonment if he were found guilty, he pled nolo contendere rather than go to trial. On August 27, 1993, Rueda was arrested for driving with a suspended license. On September 17, 1993, his probation officer executed an affidavit of violation of probation indicating that Rueda violated probation by driving with a suspended license and failing to file with his probation officer a full report of having been arrested for driving with a suspended license. Rueda was arrested and charged with violation of probation. On October 18, 1993, Rueda admitted to the charge of violation of probation. The court revoked Rueda's probation and sentenced him to another five-year term of probation and ordered Rueda to attend a sex offender program at R.E.A.C.H. once a week. The court modified the probation by order dated May 31, 1994, to require attendance at the Fifth Street Counseling Center in place of attendance at R.E.A.C.H. Rueda was to remain in the Fifth Street Counseling Center program until further notice from the program. The program at the Fifth Street Counseling Center was headed by William Rambo, a clinical social worker. Rueda began his treatment with Mr. Rambo in June 1994. The treatment program is for a minimum of four years. The first phase, which usually lasts a year, consists of intensive weekly therapy sessions in which the patient deals with the allegations of the original sexual offense. The second phase is designed to last a minimum of one year and is a less intensive phase with bi-weekly group sessions. The emphasis in the second phase is on current functioning and monitoring of the patient's stability. The final phase is designed for two years and allows the patient to demonstrate continued stability. On January 31, 1996, Rueda admitted to his probation officer that he had used cocaine on January 24, 1996. Rueda also admitted to the use of cocaine to a Secret Service Agent, who was questioning Rueda about an incident involving a counterfeit fifty-dollar bill. Rueda said that he had been drinking with friends when one of them went to purchase cocaine. The drug was put into a cigarette, which Rueda and his friends smoked. As a result of the incident involving his use of cocaine, on February 26, 1997, the court ordered two years of community control, followed by ten years of probation which began on April 4, 1996. Community control is a form of house arrest and sometimes involves wearing an electronic monitoring device. Rueda was required to wear an electronic monitor for one year. Barring any further violations of probation, Rueda's probation is due to expire in 2008. On May 12, 1997, Rueda wrote a letter to the Respondent, Agency for Health Care Administration (Agency), requesting an exemption and outlining his criminal background. His letter did not include any information concerning the January 1996, cocaine- related violation. On December 8, 1997, the Agency granted Rueda an informal hearing before an informal hearing committee on his request for an exemption. During the informal hearing, the committee specifically asked Rueda to describe any special conditions of his probation. Petitioner did not volunteer that at the time of the informal hearing that he was being required to wear an electronic monitor. The informal committee had learned about the electronic monitor from Rueda's probation officer. Rueda did not reveal that he was wearing a monitor until the committee specifically asked whether he was under electronic monitoring. Rueda is still in the first phase of his treatment with Mr. Rambo. Part of the reason that he has not completed the first phase is that each time he violated probation, the probation period would begin anew, and Rueda would have to begin the first phase anew. However, based on the testimony of Mr. Rambo, Rueda has made progress in his treatment, but he has not completed his treatment program. Other than the incidents for which Rueda plead nolo contendere, Rueda has not been involved in any incidents of sexual battery or indecent assault.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Orlando Rueda's request for an exemption. DONE AND ENTERED this 23rd day of December, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1998. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Jennifer A. Steward, Senior Attorney Agency for Health Care Administration 1400 West Commercial Boulevard, Suite 110 Fort Lauderdale, Florida 33309 Kevin J. Kulik, Esquire 600 South Andrews Avenue, Suite 500 Fort Lauderdale, Florida 33301
The Issue Whether the Respondent (the Agency) may assess costs against the Employer, who is denominated the Petitioner in the case, for rehabilitative temporary total disability benefits for an employee who was injured on the job, returned to work for approximately three years, and then was discharged for cause unrelated to his injury?
Findings Of Fact James Rutan (Rutan) was hired by Piedmont Airlines of Jacksonville on June 4, 1985. The employer changed its name to U.S. Airways (US Air) in April 1997. Rutan’s position was a fleet service employee. In this capacity, his duties were varied, but among his duties were loading and unloading baggage and freight from aircraft. On September 25, 1993, Rutan was loading baggage, picked up a heavy bag, pulled it across his chest, and injured his shoulder. He went first to the emergency room, then to Dr. Depadua, and finally to Dr. Fady Bahri, who determined that Rutan had torn his rotator cuff. Dr. Bahri operated on Rutan’s shoulder in November 1993, and Rutan returned to light duty with US Air in January 1994. Rutan continued in light-duty status until March 15, 1994. Two contradictory documents were introduced from Dr. Bahri’s office regarding Rutan’s status as of March 15, 1994. One document, sent to the workman’s’ compensation insurer, indicates that Dr. Bahri determined Rutan had reached Maximum Medical Improvement (MMI) with a 12 percent impairment rating and physical restrictions of light work, lifting a maximum of 20 pounds, lifting and carry objects weighing up to ten pounds, and no repetitive overhead activities. However, the other document, attached to Dr. Bahri’s deposition, from the US Air file indicates that Rutan was cleared to return to “full duty.” The doctor was unable to explain in his deposition the apparent contradiction in the two determinations. Rutan testified at hearing concerning his injury and its effect upon his work. Rutan loaded and unloaded baggage and freight from aircraft, and that to do so, he crawled into the cargo bay of the aircraft several times each day and either stacked bags or boxes, or threw bags or boxes to the person stacking them. This caused him pain, and he took quantities of over-the-counter and prescription pain relievers to cope with the pain and continue working. He did not complain to his supervisor(s) about discomfort from performing his duties or seek an accommodation for his handicap. Rutan's supervisor, Lynn Moore, testified regarding Rutan’s job performance. She was his supervisor for approximately two months. She observed his work during that time, and Rutan performed full duty, lifting everything he needed to lift. During the period Moore was Rutan’s supervisor, Rutan did not make any complaints of pain or complain of an inability to do the work. Rutan did not make any requests for transfers, or make any requests for accommodation for a handicap pursuant to the Americans with Disabilities Act. In the first week of April 1997, US Air terminated Rutan for cause. Although the details were not discussed, the discharge was not related to his previously injury or its impact upon his work. Ms. Moore was familiar with the records of Rutan’s employment, and these records reflected Rutan missed a total of 90 days of work due to the injury and surgery. The records further reflect he returned to full duty not later than October 16, 1996, and worked in that capacity until his discharge. Rutan worked for approximately six months following October 16, 1996, without requesting an accommodation or other relief. Ms. Moore testified regarding the positions available at US Air for persons with Rutan’s experience. There were positions available that would have accommodated Rutan’s limitations.2/ Subsequent to his discharge, Rutan had a second surgery on his shoulder on May 11, 1998, that related back to his original injury. Dr. Bahri made another determination of MMI following this surgery on October 1, 1998. Dr. Bahri again determined that there was a 12 percent impairment, but stated that Rutan was able to do medium level work restricted to occasional lifting 21-50 pounds, frequent lifting of 11-20 pounds, and constant lifting of ten pounds with no overhead activities with the right arm or shoulder. These limitations are less restrictive, and permit Rutan to lift more than the limitations originally imposed after the 1993 surgery. At the time of the second surgery, Rutan was a full time student pursuing the profession for which he was "retrained." Subsequent to his second surgery and approximately one year after his discharge for cause, Rutan filed a DWC-23 on April 14, 1998 seeking rehabilitation temporary total disability benefits pursuant to Chapter 440, Florida Statutes. The Agency interviewed Rutan, and was aware of his work history, injury, and discharge for cause unrelated to his injury. Because he had been terminated before his presented his application, and was already approved for tuition benefits and enrolled in college, Rutan’s application was handled differently than a person who was employed by an employer. The employer was not required to sign the DWC-23, and Rutan was sent directly to Mark W. Toigo for vocational evaluation. Mr. Toigo’s evaluation of Rutan’s potential for finding employment without retraining was consistent with the standards for such evaluations and the Agency’s rules. Tiogo concluded that Rutan needed to be retrained. His conclusion was based upon two primary determinations: his determination Rutan physically could not perform the work required to work in his old job which was based upon the documentation provided to the workman's compensation insurer, and his determination that Rutan could not make the amount of money he made in his old job without retraining. The first of these determinations is not supported by the facts presented at hearing. There is documentation that Rutan was returned to full duty, which implicitly is without restriction or limitation. If we assume that Rutan was not returned to full duty by Dr. Bahri after his first surgery, the facts reveal Rutan had performed the duties of his prior job under restrictions that were more stringent than those imposed after his second surgery without complaint or requests for accommodation. Mr. Tiogo did not consider the impact of Rutan’s termination for cause because the Agency’s position was Rutan could not physically perform the duties of his employment; therefore, the job was not and had never been suitable. Ms. Moore and Mr. Richard Hall testified that US Air had positions available in the same pay range as Rutan’s that did not require lifting of the type precluded by Dr. Bahri. Had Rutan not been discharged for cause and had he requested an accommodation due to his physical limitations, US Air would have been legally required to and able to accommodate his needs.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its Final Order dismissing the administrative complaint seeking reimbursement for rehabilitation temporary total disability benefits from the Employer/Petitioner. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001.
The Issue The issue is whether the Petitioner, Thelma H. Dampier, is entitled to consideration of her second application for disability retirement benefits based on the submission of new medical information.
Findings Of Fact Thelma H. Dampier was a member of the Florida Retirement System (FRS), Chapter 121, Florida Statutes, and had more than ten years of creditable service. She terminated her employment in August, 1988. In October, 1988, Ms. Dampier applied for in-line-of-duty disability retirement under FRS. By its final action letter received by Ms. Dampier on July 27, 1989, the Division denied her application for disability benefits. Under the applicable procedural rules, Ms. Dampier had 21 days to file a petition for an administrative hearing before the State Retirement Commission. She failed to request a hearing on the denial of benefits and her right to a hearing ceased. On September 8, 1990, Ms. Dampier filed a second application for in- line-of-duty disability retirement benefits. The application included medical records from Doctors Evans, Andrews, Barrow, and Chance. The medical records of Doctors Evans and Andrews had been submitted with and considered in connection to the first application. The medical records of Doctors Chance and Barrow were submitted for the first time with the second application. The report of Dr. Barrow opines that Ms. Dampier is permanently and totally disabled, but it does not reflect her condition at the time she terminated employment or any connection between her condition and her employment. The report of Dr. Chance, a chiropractic physician, relates to neck, shoulder and lower back pain. The report does not state that Ms. Dampier is totally and permanently disabled. Instead, it states that Ms. Dampier suffers only mild degenerative changes. It also does not relate that opinion to the date on which her employment terminated. The Division has a policy set forth in a Memorandum for Record dated July 17, 1990, regarding handling of reapplications for disability benefits. The policy specifies that reapplications will be considered "only when the member presents information of the existence of a medical condition that existed prior to termination of employment--unknown at the time of the initial application." This policy is reasonable and consistent with the Chapter 121.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Division of Retirement enter a Final Order denying consideration of Thelma H. Dampier's second application for in-line-of-duty disability benefits. DONE and ENTERED this 11th day of June, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division ofAdministrative Hearings this 11th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Retirement Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4). Proposed findings of fact 5 and 6 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 7 is repetitive and unnecessary. COPIES FURNISHED: Thelma H. Dampier Post Office Box 342 Melrose, FL 32666 Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 A. J. McMullian III, Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Recommendation Based on the evidence presented, the Hearing Officer recommends an award of attorney's fees and costs in the sum of $77,679.80 for the hearing level, and $20,915.20 for attorney's fees and costs incurred on appeal. Respectfully submitted and entered this 30th day of January, 1986. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of January, 1986.
The Issue The issue in this case is whether the Petitioner’s application for relicensure as a mental health counselor should be granted or denied.
Findings Of Fact The Petitioner was licensed as a psychologist in the State of New Jersey from May 14, 1979, until May 29, 1996. While so licensed, the Petitioner engaged in private practice as a psychologist in New Jersey where he engaged individual, family, and group therapy. On October 16, 1995, the Petitioner’s license to practice psychology in New Jersey was suspended pursuant to a Consent Order. The suspension was based on allegations of extensive insurance fraud perpetrated by the Petitioner during the course of his practice of psychology in New Jersey. Following the suspension of his license, the Petitioner continued to practice psychology in New Jersey by continuing to see patients and continuing to provide therapy. On May 28, 1996, the Petitioner pled guilty to one count of conspiracy and to one count of theft by deception in New Jersey Superior Court, Criminal Division. The criminal charges to which the Petitioner pled guilty resulted from the Petitioner’s having engaged in a scheme in his psychology practice whereby he would submit claims for payment to insurance companies, and would receive payments for those claims from insurance companies, for patients he did not see and/or for treatments he never rendered. The criminal court that convicted the Petitioner ordered the Petitioner to pay restitution in the amount of $2,793,656.70 and sentenced the Petitioner to a prison term of five years and six months. Ultimately, the Petitioner was required to serve only seven months in prison. The Petitioner has repaid a substantial amount of the restitution, but he still owes approximately $600,000.00 in unpaid restitution. On May 29, 1996, the New Jersey State Board of Psychological Examiners issued a Final Order which, among other things, revoked the Petitioner’s license to practice psychology in New Jersey. On June 27, 1996, the Superior Court of New Jersey in Case No. C-225-96 issued a Final Order and Judgment and Permanent Injunction against the Petitioner. That order permanently enjoined the Petitioner from engaging in the practice of psychology in any setting and also ordered the Petitioner to reimburse the patients he had treated while his license was suspended. On May 25, 1994, the Petitioner was advised by letter that he had successfully completed the requirements to be eligible for licensure in Florida as a mental health counselor. Shortly thereafter the Respondent received his license to practice as a mental health counselor in Florida. The Petitioner was licensed in Florida as a mental health counselor from mid-1994 until July 16, 2001. On July 16, 2001, the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling entered a Final Order revoking the Petitioner’s license to practice mental health counseling in Florida. The revocation order was based on an Administrative Complaint which alleged that the Petitioner had violated Sections 491.009(2)(b) and 491.009(2)(c), Florida Statutes, by reason of the revocation of his New Jersey license to practice psychology, and by reason of his criminal conviction in New Jersey of a crime that directly related to the practice of mental health counseling. The profession of psychologist and the profession of mental health counseling are comparable professions.2 The Petitioner has not completed a minimum of three semester hours or four quarter hours of graduate level coursework on the subject of substance abuse. The Petitioner has not completed a minimum of three semester or four quarter hours of graduate level coursework on the subject of legal, ethical, and professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a final order denying the Petitioner’s application for licensure as a licensed mental health counselor. DONE AND ENTERED this 28th day of June, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 28th day of June, 2005.
The Issue Whether or not the Petitioner, Bernice Parr, is entitled to be licensed by the Respondent, Department of Health and Rehabilitative Services, to provide foster care for adults.
Findings Of Fact The Petitioner is a resident of Duval County, Florida. The Respondent is a governmental agency of the State of Florida. This cause comes on for consideration based upon the Petitioner's request for a license to provide foster care for adults and denial of that request by the Respondent. At the time prescribed for the hearing, evidence, to include in-hearing testimony, was entertained by the undersigned. When the parties had concluded their presentations, they were advised of the procedures which would be followed subsequent to the hearing. When this explanation was made, the Petitioner indicated to the undersigned that she had changed her mind about her request for licensure, stating that she did not wish to be licensed as requested, nor to be involved with Respondent on the question of providing foster care for adults in the premises adjacent to her residence. This statement by the Petitioner made at the close of the hearing was treated as a motion by the Petitioner for voluntary dismissal and was unopposed by the Respondent's attorney. Therefore, it will be recommended that the action be dismissed pursuant to the voluntary motion. (This action taken by the undersigned was explained to the Petitioner before this outcome.)
Recommendation In consideration of the foregoing, it is RECOMMENDED: That the petition for licensure to provide foster care for adults be DENIED. DONE and ENTERED this 30th day of August, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Bernice Parr Robert M. Eisenberg, Esquire 9029 Galveston Avenue Legal Counsel, HRS District IV Jacksonville, Florida 32211 Post Office Box 2417-F Jacksonville, Florida 32231
Findings Of Fact In his application for licensure dated September 6, 1990, Petitioner answered question 7 pertaining to conviction of a crime in the affirmative, and submitted an attached list showing: Hammond, Louisiana, February 1977. Possession of marijuana with intent to distribute. Guilty plea, one year sentence. Tallahassee, Florida, November 30, 1977. Possession of marijuana: Guilty plea. One year sentence. Tallahassee, Florida, November 30, 1977. Possession of marijuana and conspiracy to possess marijuana with intent to distribute. Ten year sentence to be served concurrently. Tallahassee, Florida, September 11, 1986. Failure to appear. Guilty plea. Five year sentence, to be served consecutively. Tallahassee, Florida, December 19, 1986. Possession of marijuana with intent to distribute. Guilty plea. Eight year concurrent sentence. I served a total of 61 months in federal prison of an aggregate 15 year sentence from March 27, 1986 to August 3, 1990. Petitioner's FBI rap sheet shows: Arrested 2/22/77 arrested and charged in Louisiana with possession of marijuana with intent to distribute. Arrested 11/4/77 Pensacola on charge of conspiracy to possess with intent to distribute marijuana. Sentence 60 months confinement, $15,000 fine. Arrested 3/27/86 on charge of failure to appear. Arrested 5/26/86 on charge of unlawful possession of marijuana. Sentence one year confinement. Arrested 11/21/86 on charge of possession with intent to distribute marijuana. Sentence 8 year confinement. Following his conviction on November 30, 1977, Petitioner was released on bail and failed to appear for sentencing. He remained a fugitive until he was apprehended on 3/27/86 and incarcerated in a federal correction institution. The 6/25/86 entry on the rap sheet relates to the 1977 convictions and five year sentence Petitioner failed to serve. Petitioner correctly included all convictions on his application for licensure. While serving his 15 year accumulated sentence, Petitioner decided to turn his life around. During his last three years in prison, Petitioner took college courses and correspondence courses in real estate (Exhibit 2). Petitioner received a three month credit on his presumptive parole date for superior program achievement; specifically: completed vocational training in electronics; completed an extension course in real estate appraisal; and completed an associate degree in real estate appraisal. Petitioner's sister, who testified in these proceedings, is a real estate broker and encouraged Petitioner to study for and enter the real estate field. While in federal prison, Petitioner received a Jaycees Presidential Award of Honor in June 1988 in acknowledgment of his support in community fund raising projects. Subsequent to his release from prison on August 3, 1990, Petitioner worked as an assistant in two real estate offices, served as a volunteer handler of search dogs used in law enforcement and search and rescue missions, worked with the guardian ad litem program and with project PET where he takes dogs into nursing homes to serve as temporary pets for elderly patients. Although Respondent is on five years probation and will be eligible for release from parole in 1993, he has complied with all terms of his parole, including the monthly payments on the fine assessed against him. Petitioner exhibited a sincere interest in working in the real estate field and has at least two real estate firms willing to employ him as a salesman once he is licensed.
