The Issue Whether Petitioner, A Place Called Home (“APCH”), committed three Class II deficiencies and an uncorrected Class III deficiency at the time of the survey conducted on January 20 through 27, 2015, so as to justify Respondent, Agency for Health Care Administration (“AHCA”), denying the licensure renewal application of APCH to continue to operate an eight-bed assisted living facility (“ALF”) located in Miami, Florida.
Findings Of Fact The Parties Since 2013, APCH has been licensed by AHCA to operate an eight-bed ALF located in a duplex at 80-82 Northeast 68th Terrace, Miami, Florida. APCH is licensed to provide limiting nursing and mental health services. Tory Mays has been the Administrator of APCH since its inception in 2013. His wife, Linda Mays, is a Florida licensed advanced registered nurse practitioner, and the contracting nursing care consultant for APCH. AHCA is the state agency responsible for licensing and monitoring assisted living facilities in this state. The October 21, 2014, Survey On October 21, 2014, AHCA conducted a standard biennial survey at APCH. The October 21, 2014, survey was conducted by Judith Calixte-Joasil, who has conducted thousands of surveys during the past nine years she has been employed by AHCA. Ms. Calixte-Joasil, who is employed by AHCA as a health facility evaluator no. 2, has no nursing background, and she is not a physician. During this survey, Ms. Calixte-Joasil found and cited APCH with seven Class III deficiencies. Ms. Calixte-Joasil issued seven separate “tags” to explain the deficiencies. The following is a summary of the seven Class III deficiencies found by Ms. Calixte-Joasil during the October 21, 2014, survey: Tag A026–-Resident Care-–Social & Leisure Activities: Failure to provide scheduled activities posted in the common area and failure to encourage the residents to participate in social, recreational, educational, and other activities within the facility and community. Tag A078–-Staffing Standards: Failure to ensure that a staff member had documentation verifying proof of an annual tuberculosis test result. Tag A079–-Staffing Standards: A staff schedule showed an individual listed on the work schedule for the month of October 2014, but that individual no longer worked at the facility. Tag A081–-Staff In-Service Training: Failure to have proper training hours that are not over the time limits in one day of training (two out of four sampled staff). Tag A152–-Physical Plant–-Safe Living Environment/Other: Broken and rotten wood around an air conditioner unit in an outside window area of one of the rooms. Also, peeling paint in front of the air conditioner was observed in this room. Peeling paint was also observed on the ceiling in both common areas. Finally, in another room, there were missing dresser knobs and a broken door with peeling paint. Tag A160–-Records: Failure to have resident elopement response policies and procedures. Tag AL243–-Training: Failure to have documentation ensuring that a staff member completed the minimum six hours of continuing education. The Incident Involving Resident M.R. M.R. is a current resident at APCH. M.R. became a resident of APCH on December 29, 2014, after transferring from another ALF called Ashley Gardens. Upon transferring to APCH, Ms. Mays examined M.R. and completed AHCA’s Form 1823, titled Resident Health Assessment for Assisted Living Facilities.1/ At the time of her transfer to APCH on December 29, 2014, M.R. was 80 years old, 4’9” inches tall, and weighed 107 pounds. Her medical history and diagnoses were positive for hypertension, Alzheimer’s disease, and psychosis. At that time, M.R. had an “unsteady gait.” She needed “hands on” assistance for bathing and assistance choosing clothing, but she could independently ambulate, eat, care for herself, and use the toilet. Her cognitive or behavioral status was “impaired mental status.” No nursing, treatment, psychiatric or therapy services were required. No special precautions were necessary, and she was not an elopement risk. From December 29, 2014, until January 14, 2015, M.R. resided at APCH without incident. However, on January 14, 2015, at 4:15 p.m., M.R. fell at the entrance of APCH and suffered injury. Mr. Mays learned of M.R.’s fall shortly after it occurred, when he received a telephone call from Glasna Sterling, a caregiver at APCH. Mr. Mays then called his wife to let her know of the fall. Mr. Mays also called Ben Johnson, M.R.’s guardian, to let him know of the fall. In the meantime, a caregiver at the facility applied some ice to M.R.’s face shortly after the fall. Ms. Mays arrived at APCH on January 14, 2015, and conducted a thorough “face-to- face,” “head-to-toe” examination and nursing assessment of M.R. at 7:30 p.m. M.R.’s chief complaint at that time was that her forehead hurt. Upon examination, Ms. Mays observed a two-inch circumference closed hematoma above M.R.’s right eye, which was tender to the touch.2/ Ms. Mays’ examination and nursing assessment of M.R. on January 14, 2015, included checking M.R.’s mentation from her baseline, which was forgetfulness. Ms. Mays examined M.R.’s cognitive abilities and was able to determine her level of orientation and mental status. Ms. Mays observed that M.R.’s eyes were open; she could speak, move, and respond appropriately to voice commands. Ms. Mays examined M.R.’s pupils to see if they were reactive to light and accommodating. Ms. Mays checked the movement of M.R.’s limbs. She checked her lung and bowel sounds. Ms. Mays performed a Glasgow Scale test, which is a test designed to determine a patient’s neurological status and any type of neurological change. Ms. Mays found no deficits on the Glasgow Scale. Following her January 14, 2015, examination of M.R., Ms. Mays’ assessment was hematoma secondary to head trauma. M.R. also had a bruised knee. Ms. Mays determined that M.R.’s injuries resulting from the fall required first-aid type treatment, only, which could be provided by a person who is trained to perform first-aid. At that time, Ms. Mays’ recommended plan of treatment called for ice to be applied to M.R.’s forehead for 15 minutes every two hours for eight hours; the checking of vital signs and alertness for the next eight hours; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Moses Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. No ambulance or physician was called regarding M.R. on January 14, 2015. Ms. Mays documented her findings and treatment plan in “SOAP” notes dated 7:30 p.m., on January 14, 2015. SOAP notes are a problem-solving focused style of note writing, and provide guidance as to how a nurse might document her assessment of a patient for an issue that is being addressed. The term SOAP is an acronym for the following: S=subject, O=objective, A=assessment, and P=plan. The SOAP notes were maintained in M.R.’s resident file to document her health condition. Ms. Mays and Mr. Sterling were trained and qualified to perform the duties set forth in the “SOAP” notes. Ms. Mays and Mr. Sterling were trained and qualified to provide first-aid to residents. Notably, Mr. Sterling was trained and qualified on how to observe and report any changes in M.R.’s condition to Dr. Alade. Ms. Mays explained to Mr. Sterling that he should contact Dr. Alade if M.R. became dizzy; if she was not waking up; if she was sluggish; if there was any change in her normal alertness; if she was not eating; if she appeared more confused than usual; or if she was combative. Ms. Mays continued to monitor M.R.’s condition over the next two days to ensure that her initial findings were accurate. Ms. Mays also followed-up with Mr. Sterling over the next two days to ensure that he followed her orders. There was no change in M.R.’s level of consciousness during the overnight period of January 14 through 15, 2015. On January 15, 2015, at 5:30 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this time, M.R. appeared guarded. Nevertheless, Ms. Mays observed that the hematoma was healing, and had reduced in size from two inches to one inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 122/78 and a heart rate of 82, which are within normal limits.3/ Notably, by this time, fluid that had collected in the hematoma had begun to collect in the facial tissues, resulting in M.R.’s facial area appearing purple/blue in color. At hearing, Ms. Mays explained that for a geriatric patient such as M.R. with non-elastic skin, it is reasonable that the fluid collected in the hematoma would dissipate downward with gravity in other areas of the body, such as to the face. Based on her examination of M.R. on January 15, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required. Following her examination of M.R. on January 15, 2015, Ms. Mays’ recommended treatment called for Tylenol (325mg ii tabs)4/ and ice to be applied to the forehead, if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:30 p.m., on January 15, 2015. On January 16, 2015, at 5:35 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this examination, M.R. was less guarded. Ms. Mays observed that the hematoma was continuing to heal and had reduced in size from one inch to .75 inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 117/74 and a heart rate of 76, which are within normal limits. However, by this time, Ms. Mays observed a purple/blue discoloration on both sides of M.R.’s face and a dark green and yellow color on the bridge of her nose. This observation was consistent with blood collecting in the tissues of her face as previously determined by Ms. Mays. Based on her examination of M.R. on January 16, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required of M.R. Following her examination of M.R. on January 16, 2015, Ms. Mays’ treatment plan called for Tylenol (325mg ii tabs), if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:33 p.m., on January 16, 2015. Following her examination of M.R. on January 16, 2015, Ms. Mays had no further face-to-face contact with M.R. between January 16, 2015, and January 21, 2015. The January 20 through 27, 2015, Survey and Its Aftermath From January 20 through 27, 2015, a standard biennial revisit survey was conducted at APCH by Ms. Calixte-Joasil. Upon arriving at APCH at 9:15 a.m., on January 20, 2015, to conduct the revisit survey, Ms. Calixte-Joasil observed M.R. sitting on the couch. Ms. Calixte-Joasil observed M.R.’s face with the different discolorations and bruises. Ms. Calixte- Joasil became concerned based on M.R.’s appearance. Ms. Calixte- Joasil proceeded to take three photographs of M.R.’s face. Based on “the way she looked,” Ms. Calixte-Joasil believed that M.R. needed to see a doctor “just to be on the safe side to make sure she didn’t suffer any other injuries.” M.R. had already been scheduled to see Dr. Alade on January 20, 2015, for a “normal appointment,” unrelated to her January 14, 2015, fall. Ms. Calixte-Joasil saw M.R. leave APCH on January 20, 2015, accompanied by another caregiver of APCH (“Ms. Esther”) who provides transportation. Ms. Calixte-Joasil observed M.R. and Ms. Esther linking arms, with Ms. Esther assisting M.R. walking out of the facility. At that time, Ms. Esther had M.R.’s resident file with her. Ms. Calixte-Joasil assumed Ms. Esther was taking M.R. to see Dr. Alade. Both Ms. Calixte-Joasil and Mr. Mays believed that on January 20, 2015, Ms. Esther took M.R. to Dr. Alade’s office on January 20, 2015, for her regularly scheduled appointment. Unbeknownst to Ms. Calixte-Joasil or Mr. Mays on January 20, 2015, however, Ms. Esther did not take M.R. to see Dr. Alade on January 20, 2015, as she was supposed to do. The next day, January 21, 2015, Ms. Calixte-Joasil called Dr. Alade’s office directly and found out that he did not see M.R. on January 20, 2015. When Mr. Mays found out that Ms. Esther had not taken M.R. to see Dr. Alade on January 20, 2015, Ms. Ester was suspended by APCH for two weeks and subsequently terminated. On January 21, 2015, Ms. Mays contacted Dr. Alade for the first time regarding M.R.’s fall on January 14, 2015. Ms. Mays contacted Dr. Alade on January 21, 2015, because by this time, AHCA was questioning the care that had been provided to M.R. by APCH. When Ms. Mays spoke to Dr. Alade on January 21, 2015, she explained her examinations, assessments, and treatment of M.R. from January 14 through 16, 2015. No persuasive evidence was adduced at hearing that Dr. Alade recommended that M.R. be taken to the hospital or that he needed to see her for an immediate evaluation. Upon her return to APCH on January 21, 2015, Ms. Calixte-Joasil continued her survey and investigation as to what transpired with M.R. Ms. Calixte-Joasil examined Ms. Mays’ “SOAP notes.” Ms. Calixte-Joasil’s testimony that she was unable to determine from her review of Ms. Mays’ notes whether M.R. had made any improvement between January 14 and 16, 2015, is unpersuasive, and not credited. Notably, at hearing, Arlene Mayo-Davis, AHCA’s nursing expert, acknowledged that during that time, the SOAP notes reflect that the hematoma was getting better and healing. Ms. Calixte-Joasil made no effort to communicate with Ms. Mays on January 20 or 21, 2015. However, Ms. Calixte-Joasil contacted the Department of Children and Families (“DCF”) because of how M.R. looked and after finding out that M.R. did not go to the doctor as scheduled on January 20, 2015. Ms. Calixte-Joasil suspected that M.R. was the victim of abuse “from the way she looked, the fall.” Ms. Calixte-Joasil expected DCF “to come out and investigate based on my findings and what I had said.” DCF arrived at APCH on January 23, 2015, along with law enforcement. DCF arranged for M.R. to be taken by ambulance to the North Shore Medical Center emergency room. Upon learning that M.R. had been taken to the emergency room, Ms. Mays called Dr. Alade. After talking to Dr. Alade, Ms. Mays met M.R. at the emergency room and provided the emergency room physician with a report as to what happened. Ms. Mays proceeded to the emergency room and provided the emergency room physician with a report as to what happened. M.R. was admitted to the hospital on January 23, 2015. Dr. Alade agreed on January 23, 2015, that M.R. should be admitted to the hospital, and he traced M.R.’s pre-admission work-up.5/ The emergency physician who examined M.R. at the hospital reviewed Ms. Mays’ notes, and Ms. Mays testified that the emergency room physican agreed with her assessment and treatment of M.R. On January 29, 2015, M.R. was discharged from the hospital with a diagnosis of contusion and urinary tract infection. The discharge diagnosis of contusion confirms that M.R. did not suffer any fractures or a brain injury as a result of the January 14, 2015, fall, and is compatible with the need for first-aid type treatment, only, which was adequately provided by APCH. There is nothing more that APCH could have done that would have changed the course of M.R.’s recovery from her injuries resulting from the fall. Following her discharge, M.R. was returned to APCH on January 29, 2015. On February 3, 2015, Dr. Alade examined M.R. and completed AHCA’s Form 1823. Following his examination of M.R. on February 3, 2015, Dr. Alade indicated that M.R.’s facial contusion had resolved. At no time has Dr. Alade expressed any concern about the manner in which M.R. was medically treated at APCH. Dr. Alade recommended that M.R. return to APCH where she has resided ever since. M.R.’s guardian approved of M.R.’s return to APCH. AHCA’s Alleged Deficiencies as a Result of the January 20 through 27, 2015, Survey AHCA’s proposed agency action to deny APCH’s renewal license is based on three purported Class II deficiencies and one purported uncorrected Class III deficiency. Each of these alleged deficiencies relate to M.R.’s fall on January 14, 2015, and the subsequent January 20 through 27, 2015, survey. The undersigned turns now to specifically address each of these alleged deficiencies upon which AHCA’s proposed agency action is based. Tag A030: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA charged APCH with the following Class II deficiency: Tag A030 58A-5.0182(6) FAC; 429.28 FS Resident Care-–Rights & Facility Procedures: * * * he facility failed to provide access to adequate and appropriate health care consistent with established and recognized standards within the community for one out of eight [M.R.] residents. In support of its position, AHCA presented the expert testimony of Ms. Mayo-Davis. Ms. Mayo-Davis is a licensed registered nurse. She has been licensed since 1988. At hearing, AHCA’s counsel offered Ms. Mayo-Davis as an expert in the area of general nursing. Without objection, she was accepted by the undersigned as an expert in general nursing. By way of background, Ms. Mayo-Davis worked as a registered nurse at two hospitals for a total of seven years, focusing on medical, surgical, oncology, and hematology. Since 1995, she has been employed by AHCA. She began her ACHA employment as a registered nurse specialist. She later became a registered nurse supervisor and registered nurse consultant. Ms. Mayo-Davis is currently employed by AHCA as a field office manager. As a field office manager, Ms. Mayo-Davis manages 110 employees in the Delray and Miami, Florida, offices of AHCA. As a field officer manager, Ms. Mayo-Davis reviews deficiencies found at AHCA licensed facility surveys. She reviews hundreds of surveys on an annual basis, but she has not actually performed surveys while employed at AHCA. At hearing, Ms. Mayo-Davis opined that the factual basis supporting this alleged deficiency is that the facility “did not seek additional health evaluation after the resident had a fall.” Ms. Mayo-Davis testified that based on her review of the three photographs taken on January 20, 2015, and other documents, her nursing impression is that there was the potential for a brain injury or fracture of the face and that M.R. needed to be assessed by a doctor, not a nurse, and also taken to the hospital to evaluate whether or not some additional diagnostic testing needed to be done (i.e., CAT scan or X-ray). Ms. Mayo-Davis opined that M.R. still needed to go to the hospital even though by the third day “things were resolving.” At hearing, Ms. Mayo-Davis conceded that there is no evidence that M.R. suffered a brain injury or fracture to the face as a result of the fall on January 14, 2015. Importantly, at hearing, Ms. Mayo-Davis conceded that she never saw or examined M.R., and that she has never been to APCH. The undersigned rejects Ms. Mayo-Davis’ opinions as unpersuasive. The undersigned accepts and finds Ms. Mays’ opinions persuasive. By way of background, Ms. Mays received a bachelor’s degree in nursing from the University of Miami in 1999 and a master’s degree in nursing for clinical research from Duke University in 2001. She received a post-masters’ certificate as a psychiatric nurse practitioner from the University of Florida in 2013 and a doctoral degree in nursing practice from the University of Florida in August 2015. Ms. Mays has been licensed as a registered nurse in Florida since 1997. She is also licensed as a registered nurse in North Carolina and Kentucky. She is also licensed as an advanced registered nurse practitioner in Florida and Kentucky. Ms. Mays received training as an ALF administrator in Florida, and she is certified by the State of Florida to train ALF trainers. Ms. Mays began her work experience as a telemetry nurse for two years at Kendall Regional Medical Center. After that, she studied at Duke University where she became a clinical instructor for nursing students at Vance-Granville Community College, as well as the staff coordinator trainer at a nursing home in North Carolina. After that, Ms. Mays moved to Kentucky for six months where she was hired to be a director of a nursing home. She then returned to South Florida, where she accepted the position of director of nursing for a ventilator unit at Miami Hart Hospital, a position she held for three years. After Ms. Mays received her post-master’s certificate as a psychiatric nurse practitioner, she was then hired to work at West Palm Hospital as a psychiatric nurse practitioner. She is currently employed as an assistant professor at the University of Miami for clinical studies in the School of Nursing, in addition to her duties as the nursing care consultant at APCH. At hearing, without objection, Ms. Mays was accepted as an expert in the areas of general nursing, nursing standards, fall management, core training as it relates to ALFs, and nursing as it relates to the administration and management of ALFs. Ms. Mays persuasively opined that the acute course of M.R.’s medical condition occurred between January 14 and 16, 2015. During this time period, there was no change in M.R.’s condition because of her injuries from the fall which necessitated APCH contacting M.R.’s primary care physician or taking her to the hospital. M.R. was able to carry out her same activities of daily living she had done before the fall. Ms. Mays persuasively opined at hearing that had there been any indication of a brain injury as a result of the fall, the symptoms would have manifested during the January 14 through 16, 2015, period. However, no symptoms of a brain injury were presented, and there was no indication of a fracture. The persuasive evidence adduced at hearing establishes that APCH provided the correct course of treatment following M.R.’s fall, and there was no need for any further medical treatment or assessment of M.R. as a result of her injuries from the fall. M.R. was not subject to abuse or neglect by APCH, and AHCA failed to prove an intentional or negligent act by APCH seriously or materially affecting the health of M.R. Based on the particular facts of this case, the first-aid medical treatment provided by APCH as a result of M.R.’s injuries from the fall was adequate, appropriate, and consistent with the established and recognized standards within the community. Mr. Sterling was trained and qualified to perform the first-aid type treatment that he did and to contact Dr. Alade if there was any change in M.R.’s condition. Mr. Sterling’s first-aid treatment of M.R. was consistent with Ms. Mays’ protocol. The treatment protocol was sufficiently documented and followed. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A030. Tag A077: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A077: 58A-5.019(1) FAC Staffing Standards--Administrators * * * he facility failed to be under the supervision of an administrator who is responsible for the provision of appropriate care for one out of eight [M.R.] residents. The facility administrator, Mr. Mays, is responsible for the provision of appropriate care for the residents. At hearing, Ms. Calixte-Joasil testified that it is the administrator’s responsibility to ensure that the resident receive appropriate care. She testified that the reason she cited APCH for this deficiency is because Mr. Mays, “never ensured that she saw a doctor,” there was no documentation that she saw a doctor, and then when she contacted the doctor’s office, Dr. Alade had not seen her. Again, this deficiency is based on M.R.’s fall, and AHCA’s position that M.R. did not receive appropriate care as a result of her injuries from the fall. However, as detailed above, the undersigned has found that M.R. received adequate and appropriate care as a result of her injuries from the fall. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A077. Tag A025: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A025: 58A-5.0182(1) FAC Resident Care- Supervision * * * he facility failed to maintain a written record of any significant change for one out of eight residents [M.R.]. At hearing, Ms. Calixte-Joasil testified that the factual basis for this alleged deficiency is that APCH did not have any written record of any “significant change” for M.R. following the fall. The determination of whether a resident suffered from a “significant change” in behavior or mood cannot be made by a non- medical professional. Nevertheless, Ms. Calixte-Joasil made the determination that M.R. suffered from a “significant change” in her health status because of the “bump” on her head and “discoloration of the resident’s eyes.” The contusion caused by M.R.’s fall, which later resolved, did not result in a significant change in her health status. As detailed above, the injuries M.R. sustained as a result of the fall were short-term, requiring first-aid treatment, only. M.R. was able to continue to carry out her same activities of daily living before and after the fall. The credible and persuasive evidence adduced at hearing establishes that M.R. did not suffer from a “significant change” in her health status as a result of her injuries from the fall on January 14, 2015. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A025. Tag A152: Uncorrected Class III Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class III uncorrected deficiency: Tag A152: 58A-5.023(3) FAC Physical Plant-– Safe Living Environ/Other * * * he facility failed to maintain a safe living environment free from hazards. This alleged deficiency is premised on Ms. Calixte-Joasil’s belief that M.R.’s fall was caused by her tripping over a metal threshold at the entrance of APCH. At hearing, Ms. Calixte-Joasil testified that her belief is based on a conversation she had with Mr. Sterling on January 27, 2015. However, a review of Ms. Calixte-Joasil’s survey notes reflects that Mr. Sterling told her that his back was toward M.R. when she fell, and he did not actually see when M.R. fell. At hearing, Ms. Calixte-Joasil further testified that Ms. Mays told her that M.R. fell as a result of the metal threshold. However, Ms. Calixte-Joasil acknowledged that this purported statement is not in her survey notes. At hearing, Mr. Mays denied making the purported statement to Ms. Calixte- Joasil. No persuasive and credible evidence was adduced at hearing to demonstrate what caused M.R. to fall on January 14, 2015. Although APCH did not dispute in its Petition for Formal Hearing that M.R. “fell at the entrance of the facility,” that does not mean that she tripped over the metal threshold at the entrance of the facility. No witnesses who actually saw M.R. fall testified at the hearing. M.R. could have tripped over her own two feet at the entrance to the facility. Ms. Calixte-Joasil’s testimony that M.R. fell because she tripped over the metal threshold is not credited. Mr. Mays’ testimony is credited. In sum, the persuasive evidence adduced at hearing fails to establish that M.R. tripped over the metal threshold at the entrance door to APCH on January 14, 2015, which caused her to fall and suffer injuries.6/ Moreover, the evidence presented at hearing fails to establish that the metal threshold was a hazardous or potential hazardous condition. At hearing, Ms. Calixte-Joasil testified that when she observed the metal threshold during her January 2015 inspection, “[i]t was elevated a little bit.” Based on her belief that M.R. fell on January 20, 2015, she cited this deficiency as a repeat environmental hazard. APCH was unaware that the metal threshold was a potential hazard prior to the January 20 through 27, 2015, survey. There is no history of anyone ever tripping over the metal threshold prior to January 14, 2015. The metal threshold is not an uncorrected deficiency from the October 21, 2014, survey. The metal threshold was in the same condition on January 20, 2015, as it was at the time of the October 21, 2014, survey. The metal threshold was in the same condition it had been in when APCH commenced operations in 2013. Ms. Calixte-Joasil had been to APCH on multiple occasions prior to the October 21, 2014, survey, and used the same entrance where the metal threshold is located. Notably, Ms. Calixte-Joasil did not cite the metal threshold as an environmental hazard at any time prior to the October 21, 2014, survey, or when she conducted the October 21, 2014, survey. Ms. Calixte-Joasil made no mention to APCH of any issue with the metal threshold prior to the January 20 through 27, 2015, survey, and APCH was never made aware by AHCA that the metal threshold was a tripping hazard prior to the January 20 through 27, 2015, survey.7/ At hearing, Ms. Calixte-Joasil conceded that by the time of the January 20 through 27, 2015, survey, all of the items cited in the October 21, 2014, survey had been timely repaired. APCH’s license was set to expire on February 26, 2015. On February 23, 2015, AHCA conducted a standard biennial second revisit survey at APCH, at which time no deficiencies were found. At hearing, Ms. Calixte-Joasil conceded that all of the January 20 through 27, 2015, citations were timely corrected prior to the February 23, 2015, survey. Thus, there were no deficiencies at the facility for weeks prior to the March 10, 2015, denial letter. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order granting APCH’s license renewal application. DONE AND ENTERED this 9th day of December, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 9th day of December, 2015.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has a disability (back injury) for purposes of Chapter 760, Florida Statutes, and whether her termination was because of her race (Black) or due to excessive absenteeism and tardiness.
Findings Of Fact The Petitioner first worked for Mold-Ex Rubber Company (Mold-Ex) in November 1998. Her duties were in the extrusion department where she worked bonding rubber strips together on a "hot plate machine," hanging them to dry and then transferring them to be stored in a box for shipping. Nick Bores, Human Resources Coordinator at Mold-Ex, explained that she was responsible for transferring completed, bonded rubber strips and was responsible for moving four to five strips at a time. The weight of those strips was approximately one pound per strip. The Petitioner remained a probationary employee throughout her tenure. The probationary period for new employees at Mold-Ex is ninety days. She was never entitled to benefits and never received any because she remained on probationary status. Several weeks after she first began employment at Mold- Ex the Petitioner was in a car accident, which was unrelated to her employment. The accident occurred on December 4, 1998. Mr. Bores was unaware of the length of time required for her recovery from her car accident, but in any event her initial employment with Mold-Ex ended at some point after the car accident in December 1998. She did not return to work after that accident. In May 1999, the Petitioner submitted a doctor's note to Mr. Bores, which released her to return to work without any restrictions as of May 17, 1999. Mr. Bores was under the belief that he was under no obligation to re-hire the Petitioner because she had left her employment after the accident while still a probationary employee. Nevertheless, he re-hired her as a probationary employee in May 1999, and was given to understand by the Petitioner that, as of May 17, 1999, she was under no medical restrictions and could return to regular duties. Mr. Bores hired Ms. Prather to work at the rate of $6.00 per hour and she averaged $960.00 per month in pay. The Petitioner maintained that she was "averaging $288.00" per month in overtime. She did not present any evidence to corroborate her testimony to demonstrate her average overtime pay or that she even earned any overtime pay. Considering her short service with Mold-Ex, which was only a month in 1998 and less than two weeks in 1999, it cannot be concluded what she would have averaged in overtime pay nor can it be concluded, because there is not credible evidence, that she actually worked overtime. In any event, she worked in a department where her job duties including trimming the edges of square pieces of rubber with a sharp knife. During her second week of employment in 1999, the Petitioner left work early on May 28, 1999, to see her physician. She did not return to her job, but her next scheduled day at work was May 31, 1999. She visited her doctor again on June 2, 1999, when she obtained a physician's note (Petitioner's Exhibit A) and on June 2, 1999, gave the note to Mr. Bores. The Petitioner did not present evidence of any other doctor's note regarding medical restrictions or advice. The Petitioner had earlier submitted a note that released her to full duty as of May 17, 1999. Despite her return to health according to her doctor's note, she was unable to be at her work station on time and sometimes failed to appear for work at all. Respondent's Exhibit five reflects the Petitioner's actual "time punches" between May 17, 1999, and May 28, 1999. This exhibit reflects a pattern of tardiness and absenteeism. Mold-Ex has an attendance policy in force, shown by Respondent's Exhibit three. That policy requires its employees to be at their work stations ready to work at their scheduled time every day that their work is scheduled. Additionally, employees are expected not to leave their work stations early. Absences, tardiness and leaving early are not excused unless the supervisor has approved the time off in advance. An employee cannot be excused from absence or tardiness by calling in at the start of his or her shift. Depending on the business needs of each department, a supervisor can accept as little as 24-hours advance notice of an occurrence in order for it to be excused. The proper policy for having an excused absence or time off requires pre-approval by the employee's supervisor. Violations of this policy can lead to termination. Mold-Ex has terminated both white and black employees for attendance violations. Ms. Prather admitted that she was aware of the attendance policy contained in Respondent's Exhibit three and that she had received a copy of that policy. She agreed that if she was not at her work station at her scheduled time that was an "occurrence" or violation of the policy. Ms. Prather agreed that leaving work early also was a violation of the policy. She agreed that her shift began at 7:00 a.m., and ended at 3:30 p.m., and that she was scheduled to work five and sometimes six days per week. She agreed that to be in compliance with the attendance policy she was required to clock- in at 7:00 a.m., and clock-out at 3:30 p.m., each day when she was scheduled to work. She also agreed that unless an employee contacted the company prior to the absence or tardy occurrence that the occurrence would be unexcused and a violation of the policy. The Petitioner agreed that if she had absences or tardiness during the period that lasted from May 17, 1999 through June 4, 1999, then those occurrences would count against her under the Respondent's attendance policy. She also admitted that the company could terminate her for having too many occurrences in violation of the attendance policy. The Petitioner's absences or instances of being tardy are depicted on Respondent's Exhibit five. She was absent on May 18, 1999; late to work on May 19, 1999 and May 20, 1999. On Saturday, May 22, 1999, she was "technically absent" because she clocked in for only one minute. The next scheduled work day was May 24, 1999, and she was absent. She was also absent on the following day, May 25, 1999. She was late to her work station the next three days of that week: May 26 - May 28, 1999. She clocked out early on May 28, 1999, and would have been scheduled to be at work on May 31, 1999, and June 1, 1999, but she failed to come to work on those days. This is a total of 13 occurrences or violations of the attendance policy, which she effectively did not dispute. The Petitioner did not present evidence of any occurrence being excused under the policy. Mr. Bores did not recall the Petitioner calling in for advance approval regarding any of these occurrences. Ms. Prather suggested that she may have informed Mr. Bores that she would miss a few days after May 28, 1999, but she did not testify that she informed him prior to the shifts for which she was scheduled to work. On rebuttal she claimed that she had called the receptionist on May 28, 1999, to inform the Respondent that she would be taking a few days off and would bring in a doctor's note when she could return to work. However, she admitted that she did not speak to her own supervisor about her need for time off, which was required under the policy for time off to be excused. She had no explanation for any of her other violations of the attendance policy. She claimed that the note, Petitioner's Exhibit A, released her from work for two days. The note, however, does not reflect that any days off were advised by the physician. Rather the note merely states that "Ms. Prather has been advised to avoid repetitive overhead work, lifting over 15-20 pounds and repetitive bending." This note did not inform Mold-Ex of any necessary absences or request any excuse for missed work. The Petitioner admitted that she did not provide the note to the company until June 2, 1999, after the scheduled shifts of May 31, 1999 and June 1, 1999. Accordingly, she did not follow the policy for obtaining excused absences. The note itself, as well as Ms. Prather's admission of her failure to follow policy, shows that her contention that the note released her from work for two days is without merit. After reviewing Ms. Prather's time records on June 1, 1999, Mr. Bores decided on that day to terminate her because of her violations of the attendance policy. He identified at least nine violations of the attendance policy in less than two weeks. Mold-Ex has terminated employees with fewer attendance occurrences than Ms. Prather had accumulated at the time Mr. Bores decided to terminate her. A continuing pattern of being late, even as little as two to four minutes, is sufficient for termination under the attendance policy adopted by Mold-Ex. Her poor attendance was the only reason for her termination. Mr. Bores discussed the termination with Ms. Prather on June 2, 1999. She testified that she presented him with her doctor's note (Petitioner's Exhibit A) on June 2, 1999. Nevertheless, by June 2, 1999, Mr. Bores had already decided to terminate her for poor attendance based upon her record to that point. Mr. Bores never considered that the Petitioner had a disability. If she had not violated the attendance policy with so many occurrences of absenteeism and tardiness he would have considered her for any available work at Mold-Ex within her doctor's restrictions. Mr. Bores completed a termination form for the Petitioner on June 4, 1999. Because the form was not completed until June 4, 1999, which may have been the date she signed the form, her termination was considered effective on that date, although Mr. Bores had decided to terminate her on June 1, 1999. When terminating employees for failure of their probationary period, detailed forms are not required under Mold-Ex's regularly adopted personnel policy. The termination form that is Respondent's Exhibit four is consistent with the company policy and practice for terminating probationary employees. The company form reflects one comment describing a reason for termination: "probation." This signifies that the employee violated her probationary status and, in this case, that she failed her probationary period because of attendance violations. Failure to pass the probationary period is an issue that falls within "category 5" of the termination form. The only work restrictions placed on the Petitioner by her physician were represented by Petitioner's Exhibit A. The Petitioner agreed that she could have performed many different jobs under those restrictions. In fact, she testified that Petitioner's Exhibit A reflects restrictions that would have prevented her from working only in a "very narrow" range of jobs. Nevertheless, after being terminated from Mold-Ex, effective June 4, 1999, the Petitioner did not obtain employment until January 26, 2000, when her doctor gave her a full release to return to work. She admitted that she did not seek other employment during that period of time when she was without work. Additionally, she admitted that she could have obtained a full release to return to work prior to January 2000 if she had requested such from her doctor. Thus, it has not been proven that she acted to mitigate any damages caused by her loss of employment with the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitioner's charge of discrimination, with prejudice, in its entirety. DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 4th day of March, 2002. COPIES FURNISHED: Nick Bores Mold-Ex Rubber Company 8052 Armstrong Road Milton, Florida 32583 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Maldrick E. Bright, Esquire Bright Law Office, P.A. 5189 Stewart Street Milton, Florida 32570 Heather F. Lindsay, Esquire Johnston, Barton, Proctor & Powell 1901 Sixth Avenue, North, Suite 2900 Birmingham, Alabama 35203 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
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 Did Respondent discriminate against Petitioner because of his handicap and in retaliation for filing an earlier discrimination complaint with the Florida Commission on Human Relations, as alleged in Petitioner's Petition For Relief, in violation of Sections 760.01 - 760.11, Florida Statutes, known as the Florida Civil Rights Act of 1992?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner checked the boxes for both Handicap and Retaliation in the section titled "Cause of Discrimination Based On" of the Charge of Discrimination filed by Petitioner on May 14, 1994. In the section titled "Date Most Recent or Continuing Discrimination Took Place" of the Charge of Discrimination Petitioner indicated December 22, 1992. In the section titled "The Particulars Are" of the Charge of Discrimination Petitioner indicated: PERSONAL HARM: On a continuing basis I have not been referred for work by my union, with the last occurrence on December 22, 1992. RESPONDENT'S REASON FOR ADVERSE ACTION: Mr. Mike Brewer, Union Business Agent, said that I was not wanted in the department in which I had previously worked. DISCRIMINATION STATEMENT: I believe I have been discriminated against because of retaliation for filing (FCHR No. 90-8052) for the following reasons: The last time I contacted Mr. Brewer he hung up on me. continuing Mr. Brewer has referred other union members for work on a basis. A NOTICE OF DETERMINATION: NO CAUSE was issued by the Commission on March 11, 1996. In Section 3 of the Petition For Relief filed with the Commission on April 15, 1996, Petitioner alleges that Respondent violated the Florida Civil Rights Act of 1993, as Amended, as follows: Conspiring with company to isolate the HANDICAPPED Petitioner in a classification essentially made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990 signing of the A.D.A. (singling him out for "layoff") F.S. 760.10(4b). Filing a grievance to deter the Petitioner from filing any HANDICAP Discrimination complaints, and refusing to process it. Referring others for employment on a continuing basis, (F.S. 760.104(b). Refusing representation. (Foreman/union steward?) At all times material to this proceeding, Petitioner Dennis M. Presson was a member of the bargaining unit of the Craft Maintenance Council, Carpenters Local Union No. 1820. Respondent Craft Maintenance Council, Carpenters Local Union No. 1820 Statutes. Commission and the courts. as a Property Craftworker Assistant, and assigned Petitioner to the Furnishings 10. During August, 1990, the work in Furnishings declined and, in lieu of craftworker assistants, including Petitioner, were temporarily assigned on through the first week of October 1990. October 11, 1990, was laid off due to lack of work in Furnishings. Petitioner 12. On November 2, 1990, the remaining six property craftworker assistants higher in seniority than Petitioner. transferred back to Furnishings so that he could be laid off is without merit. department until their function could no longer be justified in lieu of laying The lay-offs on October 11 and November 2, 1990, were caused by lack get back at Petitioner because of his handicap or in retaliation for filing an On October 11, 1990, when Petitioner was laid off, Disney offered as custodians. Although other property craftworker assistants accepted work as On October 12, 1990, Michael Brewer, Shop Steward filed an Employee of seniority - another worker with lower seniority had been retained. Respondent settled with Disney for $2,500 rather than proceed to final and Petitioner received payment. grievance or delayed or refused to process the grievance so as to deter During the grievance process Disney again offered Petitioner a job as From the time Petitioner was laid off on October 11, 1990, until December, 1992, Respondent referred Petitioner to six or seven jobs. These jobs covered every field where the work required unskilled or slightly skilled employees. Petitioner declined each and every offer, stating that he was an artist and wanted a job as an artist. Prior to Petitioner filing this complaint with the Commission, Respondent's last contact with Petitioner was around December 1992, when Petitioner informed Respondent that he had a job as an artist with Dollywood in Tennessee and was moving. On August 27, 1992, Petitioner filed a charge against Respondent with the National Labor Relations Board alleging that Respondent "has restrained or coerced and is restraining and coercing Dennis M. Presson, a crafts worker assistant, in the exercise of rights guaranteed in Section 7 of the Act by refusing to advise him of the status of his grievance on his layoff, for arbitrary, invidious and discriminatory reasons and therefore has breached its of fair representation". The National Labor Relations Board dismissed the charge for lack of merit. Respondent has referred Petitioner to jobs where Petitioner's skill matched the classification (unskilled or slightly skilled) of the job being offered. There was no evidence that Respondent had refused or failed to refer Petitioner to jobs that matched his skill because of Petitioner's handicap or in retaliation for filing an earlier discrimination complaint against Disney with the Commission. Petitioner presented no evidence of any job that matched his skill that was available through Respondent which Respondent failed or refused to refer Petitioner for any reason. Based on Petitioner's allegation, Respondent's last refusal to refer Petitioner to an available job occurred in December 1992. There was no evidence that Respondent: (a) conspired with Disney to isolate Petitioner in a classification made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990, signing of the A.D.A. (Americans with Disabilities Act); (b) conspired with Disney to single Petitioner our for lay off; or (c) refuse to represent Petitioner while a member of the union. Petitioner has neither been employed nor has he attempted to obtain any gainful employment since he was laid off by Disney on October 11, 1990. During this period Petitioner has worked on this case and looked after his mother. Petitioner survives on food stamps and other governmental subsidies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Petition for Relief filed by Dennis M. Presson against Craft Maintenance Council, Carpenters Local Union No. 1820 be dismissed. RECOMMENDED this 27th day of November, 1996, at Tallahassee, Florida. WILLIAM R. CAVE 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 COPIES FURNISHED: Sharon Moultry, Clerk Building F, Suite 240 325 John Knox Road Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 Tallahassee, Florida 32303-4149 2816 4th Street Orlando, Florida 32820 Thomas Egan, P.A. 56 East Pine Street
Findings Of Fact On or about March 15, 1990, A.J.F., an 86 year old white male went to the office of Respondent for the purpose of getting an eye examination and new glasses. A.J.F. had lens implants in both eyes in 1984 and had some astigmatism. Respondent examined A.J.F. and prepared a prescription for new glasses for A.J.F. The glasses were made by Disston Optical, a company independent of Respondent, but located in the same building as Respondent's office. A.J.F. picked up his glasses a week or two after his prescription was written and started home with them. After driving with the new glasses for about five minutes, A.J.F. concluded that he could not see well through the right lens of the glasses and replaced them with his old glasses. Later that evening, A.J.F. tried to read with his new glasses and again found he could not see well through the right lens. Within 24 hours of picking up these new glasses, A.J.F. returned to Respondent's office with the glasses complaining that he couldn't see well through the right lens. Respondent told A.J.F. that he should wear the glasses for a week or two before deciding they were unacceptable. A.J.F. demurred, and Respondent took the glasses from A.J.F. and walked into the back of his office. Respondent made no offer to check the glasses or reexamine A.J.F. Earlier A.J.F. had problems with glasses prescribed by another optometrist and complained to the optometrist who put the glasses in A.J.F.'s pocket. Although A.J.F. wrote a letter to Medicare not to pay for the unsatisfactory glasses, he found they did pay because he had taken the glasses. A.J.F. did not intend to repeat that mistake. Following Respondent's refusal to do anything about A.J.F.'s glasses, A.J.F. complained to the Department of Professional Regulation and sent a letter to a Channel 8 TV ombudsman (8 on your side) complaining of Respondent and optometrists in general. The complaint of A.J.F. was investigated by Petitioner which investigation included A.J.F.'s medical records from Respondent and from an ophthalmologist previously seen by A.J.F. and also seen by the ophthalmologist subsequent to having been seen by Respondent. These records show that Respondent's prescription for the right eye of A.J.F. contained an axis of 45 degrees for the astigmatism adjustment while prior examinations contained an axis of 85 to 95 degrees for this same adjustment. Following his failure to obtain satisfactory glasses from Respondent, A.J.F. went to the ophthalmologist he had previously seen, Dr. Don B. Knapp, II, M.D., to obtain glasses. Dr. Knapp's examination on June 7, 1990 (Exhibit 2) determined the astigmatism field adjustment was 85 degrees for the right eye. The axis for the astigmatism in A.J.F.'s right eye of 90-95 degrees in earlier examinations, a 45 degree axis in Respondent's examination, and an 85 degree axis in Dr. Knott's examination a couple of months after Respondent's examination constitutes a significant change which would indicate a distinct possibility exists that the axis determined by Respondent was inaccurate. The fact that there was approximately a 45 degree change in this axis between A.J.F.'s earlier examination and the examination conducted by Respondent should have alerted Respondent that his examination could have been in error when A.J.F. returned with the glasses complaining that he could not see clearly through the right lens. An error of that magnitude could very well lead to the patient being unable to see through the glasses. By failing to conduct a further examination of A.J.F. or to check the lens to see if it was made in accordance with the prescription he issued, Respondent was negligent in the practice of optometry. It is also clear that A.J.F. has a history of complaining about new glasses that are prescribed for him, and he can be characterized as a difficult patient. By Final Order entered June 22, 1989, Dr. Klugman was found guilty of violating Section 463.016(1)(g)(negligence of the practice of optometry) and Section 463.016(1)(h)(violation of Rule 21Q-3007, Florida Administrative Code), was fined $1,500, and his license was placed on probation for 12 months. By Final Order entered March 14, 1991, based upon a Stipulation, Respondent was ordered to pay a civil judgment entered against him in Hillsborough County Court in the amount of $177 and to refrain from violating Chapters 455 and 463, Florida Statutes.
Recommendation It is recommended that a Final Order be entered finding Mark L. Klugman, O.D., guilty of violating Section 463.016(1)(g), Florida Statutes, assessing an administrative fine of $2,000, suspension of his license for three months, and placing Mark L. Klugman's license on probation for a period of 12 months under such terms and conditions as the Board of Optometry deems appropriate. ENTERED this 7th day of October, 1991, in Tallahassee, Florida. K. N. AYERS 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 of Administrative Hearings this 7th day of October, 1991. APPENDIX Proposed findings submitted by Petitioner are accepted, except for finding 9. While a licensee on probation would be expected to be more careful than one not on probation, there is no legal requirement that the probationee exercise a higher standard of care than a licensee not on probation. Respondent's proposed findings are accepted, except for: Finding 3 - No evidence was submitted that Respondent verified the accuracy of the spectacles or that A.J.F. returned the spectacles to Disston Optical. Finding 4 - Last sentence rejected. No evidence was submitted that A.J.F. returned the spectacles to Disston Optical. COPIES FURNISHED TO: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 N. Monroe Street Suite 60 Tallahassee, FL 32399-0792 Mark L. Klugman 4201 49th Street North No. 202 St. Petersburg, FL 33709 Patricia Guilford Executive Director Board of Optometry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue is whether Respondent should renew Petitioners' license to operate a family foster home.
Findings Of Fact Respondent is the state agency responsible for licensing and regulating family foster homes. Respondent first licensed Petitioners to operate a family foster home on April 11, 2003. Respondent renewed Petitioners' license in April 2004. Petitioners began accepting foster children into their home shortly after the renewal of their license in April 2004. Respondent renewed Petitioners' license on April 14, 2005. Petitioners were required to renew their license before April 14, 2006. Petitioners timely applied for the renewal of their license before April 14, 2006. Respondent denied the application for renewal by letter dated April 14, 2006 (notice of denial). The notice of denial alleges that child abuse involving a child identified in the record as C.S. violated safety standards in Florida Administrative Code Rule 65C-13.010. The notice of denial states, in relevant part: . . . The decision to deny your foster care license is based on the following reason: On or about 12/19/05 one of your foster children, C.S., was brought to the emergency room with a fractured left elbow. The night before while sleeping, the [sic] Ann Holt heard C.S. crying and went into her room to pick her up so she wouldn't wake up another child. C.S. and the other child shared the same bedroom. While Ms. Holt was removing C.S. from the crib she heard a pop. During the next morning C.S. complained of pain. Foster care mother called child's pediatrician and got an appointment at 3:30 PM where the doctor advised Ms. Holt to take C.S. to the emergency room. The foster mother brought C.S. to Lakeland Regional Medical Center at 8:15PM on 12/20/05. Child Protection Team Medical Director, Dr. William Brooks, reviewed the emergency room records and child's x-rays and concluded the injury was child abuse. Dr. Brooks sought a second opinion from Dr. Guidi, a pediatric radiologist at Tampa General Hospital. Dr. Guidi also concurred with Dr. Brook's findings. Both doctors agreed that the injury required significant pulling force and could not be considered accidental. It is the responsibility of the Central Zone Licensing Office to make a determination whether a foster home is in compliance with the standards for licensure set forth in the Florida Administrative Codes [sic] and the Florida Statutes. Your lack of compliance with safety standards towards the foster children that were in your home at the time of the incident which are governed by Florida Administrative Code 65C13.010 [sic] prohibits the Department from re-licensing your home. Please note that pursuant to Florida Statutes 409.175, the Department may deny, suspend, or revoke a license for noncompliance with the requirements for licensure. . . . Petitioners do not dispute most of the factual allegations in the notice of denial. However, Petitioners dispute that the injury suffered by C.S. was the result of child abuse. The trier of fact finds that a preponderance of the evidence shows the injury to C.S. did not require "significant pulling force" and could be accidental.1 The trier of fact weighed expert medical testimony presented by each party concerning the issue of child abuse. Neither of the two medical experts who testified for Respondent actually examined C.S., and neither is an orthopedist. One physician is a "pediatric ER doctor" at Tampa General Hospital in Tampa, Florida. The other physician is a pediatric radiologist. The pediatric radiologist who reviewed the X-rays could not quantify the force required to cause such an injury, but stated that the mere lifting of a child of 25 pounds could cause such a fracture. He had no independent recollection of reviewing the X-rays, had never seen the child, and based his testimony on the report of the other non-treating physician that testified for Respondent. The expert who testified for Petitioners is an orthopedist, was the treating physician for C.S., and was the only expert witness that actually examined C.S. The treating physician has over 30 years' clinical experience diagnosing and treating orthopedic injuries. The treating physician is a Fellow of the Royal Academy of Physicians and Surgeons in Ireland; a Fellow of the Royal Academy of Surgeons in Scotland; and a Fellow of the British Orthopaedic Association in England. The treating physician has practiced in the United States since 1975, was Chief of Orthopedics at the VA Medical Centers in Gainesville and Bay Pines, Florida, and was an assistant professor in the colleges of medicine at the University of Florida and the University of South Florida. The testimony of the treating physician was credible and persuasive. The treating physician's clinical experience with C.S., and his extensive experience in diagnosing and treating similar types of injuries in children assisted the trier of fact in resolving the relevant factual dispute between the parties. In addition, the trier of fact found the testimony of Petitioner, Ann Holt, the foster mother and the only witness present at the time of the alleged abuse, to be credible and persuasive. Mrs. Holt was in her bedroom at approximately 11:00 p.m. on December 19, 2005, when she heard a frantic cry from C.S. Petitioner, Michael Holt, the foster father, did not hear the cry or witness the incident because he was in the shower at the time. Mrs. Holt hurried down the hallway to the bedroom that C.S. shared with another baby girl. C.S. was approximately 19 months old, and the roommate was approximately 11 months old. C.S. and her roommate each had separate cribs. The roommate was ill, and Mrs. Holt feared C.S. would awaken the roommate. Mrs. Holt reached into the crib where C.S. was crying and picked up C.S. by her left arm, held her to her shoulder with both hands, and took her out of the room. The manner in which Mrs. Holt lifted C.S. from the crib was somewhat awkward. While Mrs. Holt was lifting C.S., C.S. slipped slightly, but Mrs. Holt retained her grip on the left arm of C.S. The awkward lift caused an injury to C.S. that was diagnosed by an emergency room physician on December 20, 2005, as a metaphyseal chip fracture of the left distal humerus, with elbow joint effusion (fractured elbow). Pursuant to the instructions of the emergency room physician, Mrs. Holt took C.S. to the treating physician on December 22, 2005. The treating physician confirmed the diagnosis and placed C.S. in a cast for several weeks. C.S. recovered without complication and returned to full range of motion. The medical experts for Respondent testified that the injury could only have been caused by excessive force consistent with abuse. However, the treating physician determined the fracture was not a significant injury, did not require extraordinary force, and was not related to abuse. The fracture suffered by C.S. was a small chip about a millimeter thick that can occur with "relatively minimal force." A fracture like that suffered by C.S. can be inflicted by the child rolling over in bed without any outside cause. If the fracture were higher up the humerous bone, it may have been consistent with child abuse because of the significant force necessary to cause an injury at that location. In this case, however, the area of injury is near or in the area of the child's growth plate that is more fragile and susceptible to injury. C.S. did not cry in response to the injury. Rather, C.S. stopped crying when Mrs. Holt lifted C.S. from her crib and held C.S. to Mrs. Holt's shoulder. That night, C.S. used both hands to drink from her "sippy cup." The next day, December 20, 2005, Mrs. Holt observed that C.S. was not using her left hand to hold her "sippy cup." Mrs. Holt also observed some favoring of the left arm and some swelling. Mrs. Holt reported the incident to the licensing retention counselor and arranged an appointment with a pediatrician. The pediatrician referred C.S. to the emergency room. Mrs. Holt took C.S. to the emergency room and remained with C.S. for support and reassurance. Mrs. Holt and C.S. returned home from the emergency room at approximately 5:00 a.m. on December 21, 2005. On December 29, 2005, Respondent removed the three foster children residing with Petitioners. Respondent has not placed any other foster children with Petitioners. Petitioners did not fail the required screening described in Subsection 409.175(6)(h), Florida Statutes (2005). Respondent never conducted the required screening.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioners' application to be re-licensed as a family foster home be GRANTED. DONE AND ENTERED this 26th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2006.
Findings Of Fact Maliyah Jones was born on May 28, 2013, at North Florida Regional Medical Center located in Gainesville, Florida. Maliyah weighed 3,870 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Maliyah. In a medical report dated September 15, 2015, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia, which resulted in an Erb’s palsy. Although depressed at birth, the baby had a good response to resuscitation (bag and mask ventilation) with an Apgar score of 9 at five minutes. The baby’s condition was stated to be stable on admission to the NICU. The newborn hospital course was complicated only by the Erb’s palsy. Discharge was on DOL 2. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Maliyah and to review her medical records. Dr. Sigurdardottir examined Maliyah on October 28, 2015. In a medical report regarding her independent medical examination of Maliyah, Dr. Sigurdardottir opined as follows: Summary: Maliyah is a 2-1/2 year-old born at term after an uncomplicated pregnancy with shoulder dystocia resulting in a near complete Erb’s palsy. She has required 2 surgical procedures and does have significant disability as per the Mallet scale and is likely to need more surgical procedures to enhance her functional abilities in her right upper extremity. She is, however, functioning well from a cognitive level and her gross motor skills are otherwise intact. In review of the medical records available, it seems clear that her right brachial plexopathy did occur at birth due to mechanical injury. In light of her favorable cognitive and language development our findings are the following: Result as to question 1: The patient is found to have a permanent physical impairment, but to have none or mild delays in language development. She is therefore not found to have a substantial mental and physical impairment at this time. * * * In light of the above-mentioned details, Maliyah’s restricted motor disability and near normal cognitive development, I do not recommend Maliyah to be included into the Neurologic Injury Compensation Association Program and would be happy to answer additional questions or review further medical records. In light of her favorable mental and developmental state it is doubtful that additional records would alter the outcome of our review. She is not felt to have a substantial mental impairment at this time. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Maliyah is not found to have a substantial mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
The Issue Whether Cody Smith has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Cody Smith (Cody) is the natural son of Lisa Smith and Jeffrey Smith. He was born a live infant on May 1, 1991, at Memorial Hospital, in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physicians delivering obstetrical services during the birth of Cody were Sidney Morrison, M.D., and Robert Siudmak, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Cody's delivery at Memorial Hospital on May 1, 1991, was not without complications. Being post term, with a delivery weight of 10 pounds 3 ounces, Cody's extraction was difficult, and due to a "moderate to severe degree of shoulder dystocia" ("the shoulder was hung up in the birth canal") force was necessary to extract him from the birth canal. As a consequence of such force, trauma to segments of the brachial plexus occurred which induced a left upper extremity Erb's palsy. Today, while improved from his initial condition, Cody's physical impairment, occasioned during the course of delivery, may be described as permanent and substantial; however, a brachial plexus injury, which can result in an Erb's palsy, is not an injury to or a consequence of any injury to the brain or spinal cord. 1/ Moreover, Cody's mental functioning is age appropriate, and he has not been shown to have suffered any mental impairment, much less a substantial mental impairment.
