The Issue The issue for consideration is whether the Petitioner qualifies for participation in the Firefighter's Supplemental Compensation Program at the Bachelor's level.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Jorge Du Quesne, was a fire fighter, (driver/engineer), employed by the City of Miami Fire Department. The Respondent, Department of Insurance and Treasurer, Bureau of Fire Standards and Training, was and is the state agency in Florida responsible for the management and certification of fire fighters in this state. It is also the agency charged by statute with the responsibility of determination of the eligibility of any fire fighter to receive supplemental compensation under the Program, and the decision of the Bureau is final subject to the provisions of Chapter 120, Florida Statutes. Petitioner was awarded a Bachelor of Civil Engineering degree in 1973 by Georgia Tech. The Bachelor of Civil Engineering degree is equivalent to a Bachelor of Science degree in Engineering. While a student, Mr. Du Quesne majored in structural engineering. In addition to his undergraduate degree, he has also taken several courses sponsored by the Miami Fire Department in hydraulics, structures, construction materials and the like. The questions on the examinations came from materials provided at the course presentation. While a student at Georgia Tech, Mr. Du Quesne took many courses which relate, to some degree, to fire fighting. Included in these are pump operation and efficiency in fluid functions lab, which dealt with a centrifugal pump similar to that which is used on the fire trucks he operates. Others included chemistry, physics, fluid mechanics, thermodynamics, applied electricity, constructions materials, structural analysis, metal structural components, concrete structural components, sanitary engineering, and timber and pre- stressed concrete. All of these subjects have a bearing on fire fighting and give him a background upon which fire training can be based. Petitioner's current position as a driver/engineer of a pumper truck does not require a college degree. By the same token, the fire fighting courses he has taken since becoming a member of the Department do not provide college credit. The Department sponsored courses were designed to make him a better fire fighter, and most attendees did not possess the civil engineering background he has. In his work he relies on both his fire training and that material he studied during his training as a civil engineer. Admittedly the formulae he learned while a student in college do not necessarily relate to the work he performs on a daily basis dealing with hoses pipes and the other functions of a fire fighter. On the other hand, however, much of the information and the formulae he has learned do relate. Petitioner feels his civil education helps him make better decisions while on the fire scene. He believes that the two careers, that of a civil engineer and that of a fire fighter, aredirectly related and he contends his civil engineering background qualifies him for participation in the program and the resultant award of additional compensation. His civil engineering background, for example, gives him a better understanding of the structure of a building, how it works, how it will come down, and how it will react to the pressures of the fire and the fire fighting efforts applied. It is his firm opinion that his understanding of those problems, based on the training as a civil engineer he received in college, makes him far better qualified than someone who does not have this training. The general thrust of Petitioner's argument is supported by the testimony of Fire Lieutenant Erdozain, himself a graduate in engineering from Florida International University. Lt. Erdozain is familiar with the duties of a fire fighter and those of a civil engineer. When he responds to a fire, the first thing he has to take into consideration are those factors dealing with the structure on fire. He needs to know if he can safely enter it or not and the information he learned in his engineering training helps him with that decision. The Miami Fire Department does not offer any courses in building structure. Most knowledge in that area possessed by fire fighters is gained from experience, but the information received as a result of an education in civil engineering would help in the resolution of those problems. Another example is service on the hazardous material team, (HAZMAT). In performing that service, a fire fighter has toknow the properties of the material he will be dealing with in responding to a fire involving them. In that regard, according to Lt. Erdozain, a thorough knowledge of chemistry, beyond that which is taught by the fire department, is helpful. Though Petitioner is not now serving on a HAZMAT team and has not ever served on one during his career, he has had the opportunity to work with hazardous materials, as has most every other fire fighter employed by the Department. It is a constant potential. All fire fighters are trained in the life safety code which relates to the interior construction of buildings. The books used by the Department in the courses it teaches on this subject do not go as far or as thoroughly into it as does the course material given in a civil engineering education, and in Lt. Erdozain's opinion the knowledge possessed by a civil engineer regarding materials and construction would be of great benefit to a fire fighter. Petitioner's application for enrollment in the Program was forwarded to the bureau chief of the Department of Insurance's Bureau of Fire Standards and Training which has the responsibility for determining eligibility. The application was reviewed by Mr. Stark, the Bureau chief, who has a background of 20 years experience as a fire fighter, and subsequent to retirement from that position, as an instructor, curriculum writer, and chief of the Bureau since 1982. He is thoroughly familiar with the Program and has dealt with it since its conception. Mr. Stark determined that the Petitioner was not qualified for entry into the program based on the fact that his bachelor's degree is in civil engineering and is not either a bachelor of science or a bachelor of arts degree. Civil engineering is not one of the concentrations which qualifies for entry into the program. Section 633.382(2)(a)2, Florida Statutes, lists as a qualification: ... a bachelor's degree which bachelor's degree curriculum includes a major study concentration area readily identifiable and applicable to fire related subjects. Rule 4A-37, F.A.C., outlines the qualifying areas of concentration and it is Mr. Stark's opinion that Petitioner's civil engineering degree did not contain the major concentration areas identified by the rule as qualifying for admittance into the program. There were no other reasons for denial. As Mr. Stark sees it, Petitioner is a driver/engineer. He has a responsibility to provide a water supply to hoses in the proper amount for fighting the fire to which he has responded. The particular course material to which Petitioner was exposed while in college constituted a curriculum which does not, in Mr. Stark's opinion, qualify as a fire science curriculum. He is has reviewed the comments furnished by the Petitioner in his letter of response to the Department's letter of denial, but determined that those explanatory comments were not a catalogue description of the courses taken. Petitioner's comments contain much which is not put there by the college. Under the provisions of Section 4A-37.084(3), F.A.C., a bachelor's degree is acceptable provided the major studyconcentration area is readily identifiable and applicable as fire related, and in the major study concentration area, at least 18 semester hours or 27 quarter hours must be so related. The major study concentration areas means a major in fire science, fire science technology, fire science administration, fire protection engineer, municipal management, public administration, emergency medical technology, paramedic technology, and fire science vocational education. Applicants whose major study concentration area does not fall within one of those categories may nonetheless petition the Division for entry into the program but the burden of proof is on the applicant to prove that his major is fire related. Mr. Stark determined that Petitioner's course background does not closely enough relate to his current job. His education background contains no fire science courses which would be more appropriately related to fire fighting than the general engineering courses he took. In short, the Petitioner's educational background, while of a related type, was not sufficiently related to fire science. The intent of the statute and the rule is to require fire fighters to qualify themselves for the performance of their duties by taking fire science courses, not general courses which might be somewhat generally related to the fire fighting career. For example, in the area of hydraulics, Mr. Stark contends that the formulae used by fire fighters in this area are somewhat different than those used by a general civil engineer and the fire fighting approach to this course is more specialized. However, he readily admits that a prior knowledge of basic hydraulics will give a fire fighter an advantage in learning those specifics of fire service related hydraulics. The same would apply to any course which bears some relationship to or has some application in fire fighting. Mr. Stark indicates that if Petitioner had been an officer with the Fire Department as opposed to a fire fighter, his review of the application might have been more detailed. In this comment he does not infer that officers are given preference over fire fighters in entry into the program. He means, instead, that the job of the officer, with its management responsibilities, is what controls - not the rank itself. In that regard, Lt. Erdozain, who is an officer, was denied entry into the program. He contends, as does Petitioner, that any fire fighter who is placed in charge may assume the function of an officer at any given time at the scene of a fire. The over-all additional responsibility of the officer is what controls, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT a Final Order be entered denying Petitioner qualification for entry into the Fire Fighter's Supplemental Compensation Program. DONE and ENTERED in Tallahassee, Florida this 23rd day of October, 1991. ARNOLD H. POLLOCK 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 October, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida States, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner submitted no Proposed Findings of Fact. His three page letter, dated September 30, 1991, containing his observations, and the other materials therein have been carefully considered in the preparation of this Recommended Order. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact. & 6. Accepted and incorporated herein. Accepted and incorporated herein except for last sentence which is contra to the evidence of record. Rejected as not necessarily consistent with the evidence. Petitioner indicated that depending upon the situation at the scene of a fire, he could be called upon to make almost any fire related decision. Accepted. Not a Finding of Fact but a comment on the evidence. Accepted. Accepted and incorporated herein. - 15. Accepted. Accepted. Petitioner is not on nor has he ever been on a HAZMAT team. However, the evidence, uncontradicted, indicated he could be called upon to work with them at any given time. Accepted. Not a true Finding of Fact but more a comment on the evidence. Accepted. COPIES FURNISHED: Jorge Du Quesne 2500 SW 79th Court Miami, Florida 33155 Andrew Kenneth Levine, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Is Petitioner eligible for Respondent sponsored retraining?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner sustained a workers’ compensation injury (injury) to his right knee on November 26, 1989, while working for the Polk County Fire Department (Fire Department), as a firefighter. Following the injury, Petitioner received authorized medical care at the expense of his employer, which included surgery, followed by approximately one year of physical rehabilitation. After completing approximately one year of physical rehabilitation and light duty work, Petitioner was returned to full duty work with the Fire Department in January 1991. Petitioner continued to experience problems with his right knee, including pain and swelling. However, Petitioner continued on full time duty receiving medical care for his knee. Petitioner’s right knee remained problematic and required regular medical attention between 1990 and 1996. In January 1996, Thomas F. Winters, Jr., M.D. performed a second surgical procedure on Petitioner’s right knee. Following the second surgical procedure, Dr. Winters provided conservative treatment for a brief period before releasing Petitioner to full duty on March 9, 1996, without any restrictions. On March 12, 1996, Dr. Winters placed Petitioner at maximum medical improvement (MMI). Dr. Winters is of the opinion that Petitioner had some degenerative changes to his knee but that those changes were related to a previous arthritic problem, not to the workman’s compensation injury; and if Petitioner was performing full firefighter duties before the injury then he could perform those duties after March 9, 1996. However, based on the opinions expressed by Dr. Barrett, and Dr. McGregor, Dr. Croft, it appears that Dr. Winters did not properly take into account Petitioner’s continued problem with his knee when Dr. Winters found Petitioner at MMI and put Petitioner on full firefighter’s duty. At the time of his release by Dr. Winters on March 9, 1996, and placed at MMI, Petitioner’s knee was so weak that he could not climb stairs or climb ladders or lift anything with any degree of certainty and Petitioner did not feel himself capable of safely performing the full duties of a firefighter. Because of his knee, Petitioner did not return to full duty as a firefighter but instead requested another medical opinion. Petitioner was authorized to see Carl L. Croft, M.D. for a second opinion. Dr. Croft agreed that Petitioner could not perform full duty as a firefighter and recommended that he receive further physical therapy. This physical therapy was never authorized. Petitioner did not return to full duty as a firefighter following Dr. Winters’ release. Instead, Petitioner requested the additional care recommended by Dr. Croft. This additional care was never authorized. Ultimately, Petitioner exhausted his sick leave and vacation time and was forced to return to work in May 1996. Upon his return to work in May 1996, Petitioner advised his employer of his continued concerns as they related to his knee and his inability to perform the essential functions of a firefighter. At this point, Petitioner’s employer changed Petitioner’s work duties and he was not functioning as a firefighter. Because of Petitioner’s physical limitations on performing full firefighter duties his employment could not be considered "suitable gainful employment" as that term is defined in Section 440.491(1)(g), Florida Statutes. Petitioner was placed on administrative leave in October 1996, and remained on administrative leave until his termination for cause on January 17, 1997. At the time of termination, Petitioner’s right knee continued to be problematic. Petitioner sought retraining through Respondent and was approved for retraining on July 14, 1998. However, the Fire Department and its insurance carrier objected on the basis that Petitioner had returned to work for 90 days or more after the injury and therefore, retraining was precluded by rule. After a reevaluation, the Respondent determined that Petitioner had worked more than 90 days after being released by Dr. Winters to return to full-time work and, additionally, had worked more than 90 days after Dr. Winters had determined that Petitioner had reached MMI. Therefore, Petitioner was denied retraining on the basis that retraining was precluded by rule. Thereafter, Respondent’s initial decision to grant retraining was revoked and retraining denied by letter dated August 5, 1998. Petitioner worked full-time for more than 90 days after his injury when he was returned to full firefighter’s duty by Dr. Winters in January 1991, and when he returned to work after Dr. Winters had determined that Petitioner had reached MMI on March 12, 1996. However, neither of these periods of employment could be considered as "suitable gainful employment" as that term is defined in Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order granting Petitioner’s request for retraining. DONE AND ENTERED this 24th of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May 2000. COPIES FURNISHED: Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Geoffrey Bichler, Esquire Geoffrey Bichler, P.A. 533 West New England Avenue, Suite C Winter Park, Florida 32789 Nancy Staff Slayden, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189
The Issue The issue in this case is whether the Petitioner qualifies for the Firefighters Supplemental Compensation Program at the Bachelor level for supplemental compensation at the rate of $110.00 per month.
Findings Of Fact At all times relevant and material to these proceedings, the Petitioner has been employed as a firefighter with the Metro-Dade Fire Department. The Petitioner's primary function with the Metro-Dade Fire Department is as a firefighter. By letter dated May 30, 1991, and received on June 10, 1991, the Petitioner applied to the Respondent for Firefighters Supplemental Compensation at the Bachelor degree level. Three transcripts were submitted with the Petitioner's application. The first was from Miami-Dade Community College, and showed that an Associate of Science degree in Fire Science was awarded to the Petitioner on May 4, 1991. The second transcript was from Broward Community College, showing many courses taken by Petitioner, but no degree awarded. 3/ The third transcript was from Florida International University, and showed that a Bachelor of Science degree with a major in Industrial Technology was awarded to Petitioner on December 12, 1980. Petitioner's Bachelor degree from Florida International University is not based upon, and does not include, any of the courses in fire science that formed the basis for Petitioner's Associate degree from Miami-Dade Community College. 4/ Petitioner's transcript of her Bachelor degree does not reveal a major study concentration area of at least 18 semester hours or 27 quarter hours which is readily identifiable and applicable as fire- related. On or about June 24, 1991, the Respondent notified the Petitioner that she was eligible for the Firefighters Supplemental Compensation Program at the Associate degree level by virtue of her Associate of Science degree in Fire Science from Miami-Dade Community College. On or about June 26, 1991, the Respondent notified the Petitioner that she was not eligible for the Firefighters Supplemental Compensation Program at the Bachelor degree level because Petitioner's major in Industrial Technology from Florida International University was not a recognized Major Study Concentration Area in Rule 4A-37.084. The denial letter cites and quotes the definition of "Bachelor's Degree" at Rule 4A-37.084(3), Florida Administrative Code.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Insurance issue a final order in this case denying the Petitioner's application for participation in the Firefighters Supplemental Compensation Program at the Bachelor degree level. 7/ DONE AND ENTERED at Tallahassee, Leon County, Florida, this 17th day of December, 1991. MICHAEL M. PARRISH, 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 17th day of December, 1991.
Findings Of Fact The Department excepts to a portion of the Hearing Officer's finding of fact #3 on the basis that it is not supported by substantial competent evidence in the record. The Hearing Officer finds that a degree in public affairs from Florida Atlantic University is known as a degree in public administration elsewhere. The Hearing Officer cites no record authority for this statement and it does not appear that any officials from Florida Atlantic University or any other post-secondary institutions testified as to what a public affairs degree could be known as at other institutions. Further, the documentary evidence does not support this finding by the Hearing Officer. Joint Exhibit 2 indicates that the Petitioner, Mr. Bingham, received a Bachelor of Arts degree with a major in Political Science from Florida Atlantic University. No where on the official sealed transcript does it indicate that Mr. Bingham received a degree in public affairs or public administration. The Department's exception to finding of fact 3 is accepted. The Department excepts to the Hearing Officer's finding of fact #4 on the basis that it is not supported by substantial competent evidence in the record. For the reasons set forth in paragraph 1 above, the Department's exception to finding of fact 4 is accepted. The Department excepts to the Hearing Officer's finding of fact #9 on the basis that the Hearing Officer erroneously interpreted fire-related courses as a fire-related major study concentration area. The proper standard for reviewing Mr. Bingham's transcript is whether the major study concentration area is fire-related, not whether the Petitioner's major study concentration area includes courses that are job-related. "The intent of the statute and the rule is to require fire fighters to qualify themselves for the performance of their duties by taking fire science courses, not general courses which might be somewhat generally related to the fire fighting career." In the Matter of Jorge Du Quesne; Case No. 91-L-367AKL (Final Order entered November 22, 1991). The Department's exception to finding of fact 9 is accepted. The Department excepts to the Hearing Officer's finding of fact #11 on the basis that it is not supported by substantial competent evidence in the record. For the reasons set forth in paragraphs 1 and 3 above, the Department's exception to finding of fact #11 is accepted. RULING ON EXCEPTIONS TO CONCLUSIONS OF LAW The Department excepts to the Hearing Officer's conclusion of law #15 the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules. It appears that in this conclusion of law the Hearing Officer is simply restating the provisions of Rule 4A-37.084(3) and (5), Florida Administrative Code. Although some what difficult to follow, it does not appear that the Hearing Officer has erroneously interpreted this Rule. The Department's exception to conclusion of law #15 is rejected. The Department excepts to the Hearing Officer's conclusion of law #16, again the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules and that the conclusion is not supported by competent substantial evidence. The Hearing Officer has based this conclusion of law solely on her theory that if the Petitioner had not changed his major and had attended a different school he might have had his major called something else that would be fire-related. The Hearing Officer does not have authority to arbitrarily change the Petitioner's major study concentration area, nor is there substantial competent evidence in the record to support such a change. The Department's exception to conclusion of law #16 is accepted. The Department excepts to the Hearing Officer's conclusion of law #17 on the basis that it is not supported by substantial competent evidence. For the reasons set forth in paragraph 2 above, the Department's exception to conclusion of law #17 is accepted. The Department excepts to the Hearing Officer's conclusion of law #18 on the basis that it is not supported by substantial competent evidence. For the reasons set forth in paragraph 2 above, the Department's exception to conclusion of law #18 is accepted. RULING ON EXCEPTIONS TO RULINGS ON FINDINGS SUBMITTED BY RESPONDENT IN APPENDIX TO RECOMMENDED ORDER 1. To the extent not inconsistent with the rulings on exceptions to findings of fact contained herein, the Department's exceptions to the Hearing Officer's appendix to Recommended Order are accepted. RULING ON EXCEPTIONS TO RECOMMENDATION Based on the foregoing rulings on the Department's exceptions to the Hearing Officer's findings of fact and conclusions of law, the Hearing Officer's recommendation that the Petitioner be accepted into the Firefighter's Supplemental Compensation Program is rejected and the appropriate disposition of this case is that Petitioner is denied participation said program. Upon careful consideration of the record, the submissions of the parties and being otherwise advised in the premises, it is ORDERED: The Findings of Fact of the Hearing Officer are adopted as the Department's Findings of Fact, with the exception of Findings of Fact #3, 4, 9 and 11. The Conclusions of Law of the Hearing Officer are adopted as the Department's Conclusions of Law with the exception of Conclusions of Law #16, 17, and 18, That the Hearing Officer's recommendation that Mr. Bingham's request for entry into the Firefighter's Supplemental Compensation Program be accepted is rejected and the appropriate disposition of this case is that Mr. Bingham's request is denied. ACCORDINGLY, the request for entry into the Firefighter's Supplemental Compensation Program submitted by WILLIAM L. BINGHAM is hereby DENIED. Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida, and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of this Order. DONE and ORDERED this 6th day of May 1993. TOM GALLAGHER Treasurer and State Fire Marshal COPIES FURNISHED: HONORABLE LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 WILLIAM L. BINGHAM 11156 Northwest 35th Street Sunrise, Florida 33351 DANIEL T. GROSS, ESQUIRE Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application for entry into the Firefighters' Supplemental Compensation Program at the bachelor's degree level. DONE AND ENTERED this 26th day of March, 1993, in Tallahassee, Leon County, 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 26th day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6278 Petitioner's proposed findings of fact numbered 1-3 and 5-8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 4 has been rejected as being subordinate to the issue being determined herein. Respondent's proposed findings of fact numbered 1, 2, 9, 10, and 13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3-8 have been rejected as being subordinate to the issue being determined herein. Respondent's proposed finding of fact numbered 11 has been rejected as not being supported by the weight of the evidence. Respondent's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Mr. William L. Bingham 11156 Northwest 35th Street Sunrise, Florida 33351 Daniel T. Gross, Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Christian was born on February 24, 2009, at Mease Countryside located in Safety Harbor, Florida. Christian, who was born a twin, weighed in excess of 2,000 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Christian. In a medical report dated August 7, 2014, Dr. Willis opined as follows: Christine [sic] was delivered by Cesarean section for twins. Christine was designated as fetus A in the hospital records. Birth weight was 2,395 grams. Apgar scores were 9/9. The baby had mild respiratory distress and required nasal oxygen for <24 hours and then weaned to room air. NICU admission exam noted the baby to be alert and active with normal muscle tone. After weaning off oxygen, the baby remained stable until about one week of age when fever and seizure activity developed. E. coli meningitis was diagnosed. The baby subsequently developed hydrocephalus as a result of the meningitis. The child was subsequently diagnosed with cerebral palsy and developmental delay. Based on limited medical records, there does not apparent [sic] to be any 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. The baby had mild respiratory distress for less than 24 hours. The baby was stable until seizures developed at about one week age. Bacterial meningitis was diagnosed and resulted in hydrocephalus and brain injury. Dr. Willis reaffirmed his opinion in an affidavit dated April 27, 2014. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Christian and to review his medical records. Dr. Duchowny examined Christian on January 14, 2015. In an affidavit dated April 29, 2015, regarding his independent medical examination of Christian, Dr. Duchowny opined as follows: In summary, Christian’s evaluation today reveals findings consistent with a substantial mental and physical impairment. Christian has a right hemiparesis with greater involvement of the upper extremity, absence of meaningful communication skills, repetitive self-stimulatory behavior, cortical visual impairment, microcephaly, and static hydrocephalus with a functioning left ventriculoperitoneal shunt. His developmental level is between 9-12 months of age which is significantly delayed. A review of Christian’s medical records confirms his mother’s impression of meningitis. Christian was diagnosed with Citrobacter meningitis in the Newborn Nursery. The records indicate that Christian was born at 33 weeks gestation and weighed 5 pounds 4 ounces at birth and had Apgar scores of 9 & 9 at 1 and 5 minutes. He was delivered by non-emergent repeat elective cesarean section. Citrobacter meningitis was confirmed on cerebrospinal fluid examination on March 3, 2009. Gram negative rods were noted in the fluid which revealed a protein of 248 with 2830 white blood cells. He was treated aggressively with antibiotics but developed obstructive hydrocephalus necessitating his ventriculoperitoneal shunting. Although Christian has a permanent and substantial mental and motor impairment, the etiology would appear to be postnatal- acquired Citrobacter meningitis and hydrocephalus. The medical records do not substantiate that Christian’s neurologic impairment resulted from either oxygen deprivation or mechanical injury in the course of labor or delivery. For this reason, I am not recommending Christian for inclusion within the NICA program. 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 during labor, delivery, or the immediate post- delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that although Christian’s examination reveals findings consistent with a substantial mental and motor impairment, his neurological problems did not result from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. Dr. Duchowny’s opinion is credited.
The Issue The issues for determination are whether Petitioner, Paul F. Meloy (Meloy), is an employee of Petitioner, Alva Fire Protection and Rescue District (District), and is entitled to participate in the Florida Retirement System (FRS) pursuant to Section 121.051, Florida Statutes (2001). (All references to statutes are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Section 121.051 requires participation in the FRS by all employees hired after December 1, 1970. The District hired Meloy after 1970. Meloy has worked for the District as the fire chief and administrator since the District's inception in 1976. Meloy was instrumental in establishing the District. The other requirement imposed by Section 121.051 for participation in the FRS is that Meloy must be an employee. Section 121.021(11), in relevant part, defines an employee as any person receiving salary payments for work performed in a regularly established position. Respondent denies that the payments Meloy receives from the District are salary payments. Respondent asserts that the payments are reimbursement for expenses. Respondent denies that the payments to Meloy are compensation. Section 121.021(22) defines the term "compensation" to mean: . . . the monthly salary paid a member by his or her employer for work performed arising from that employment. The payments from the District to Meloy since October 1990 have been compensation. In October 1990, the District began paying Meloy a monthly salary "for work performed arising from his employment with the District." Before October 1990, the District reimbursed Meloy for expenses he incurred in housing fire trucks in the garage at Meloy's auto service business. The District also reimbursed Meloy for the maintenance and repair of District vehicles. In 1988, the District began reporting the payments made to Meloy as salary for purposes of the federal income tax. Each year from 1988 to the present, the District has reported the payments to Meloy on a W2 Wage and Tax Statement. Between 1988 and October 1990, the District stopped housing vehicles in Meloy's garage, and Meloy stopped servicing vehicles for the District. In October 1990, the amount of the monthly payment to Meloy increased substantially. Thereafter, the District provided annual cost of living increases to Meloy. The payments to Meloy from October 1990 to the present have been unrelated to expenses incurred by Meloy. Those payments have been regular monthly salary payments for work performed to implement the policy of the District and to administer the day-to-day operations of the District. Even if the payments are salary payments, Respondent argues that Meloy did not receive those payments for work performed in a regularly established position. Section 121.021(52)(b) defines a regularly established position as one that will be in existence for six months. Meloy's position has been in existence since 1976. It will be in existence for six months. Respondent asserts that the position occupied by Meloy is a temporary position defined in Section 121.021(53)(b). Section 121.021(53)(b) defines a temporary position as one that will exist for less than six months or as defined by rule, regardless of its duration. Respondent claims that the position occupied by Meloy is a temporary position because it is an "on call position" defined in Florida Administrative Code Rule 60S- 1.004(5)(d)5. The rule defines an on call position as one filled by employees who are called to work unexpectedly for brief periods and whose employment ceases when the purpose for being called is satisfied. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) Meloy performs some of his duties unexpectedly when called anytime 24 hours a day. He performs his other duties in the normal course of business. Meloy does not maintain any time sheets, and the District does not require Meloy to perform his duties within an established work schedule. Meloy does not occupy an "on call position" within the meaning of Rule 60S-1.004(5)(d)5. Meloy's employment does not cease when the purpose of his being called is satisfied. Meloy has been performing his on-call duties and his other duties for approximately 25 years. In 1994, Mr. William D. Wilkinson became the Chairman of the District (Wilkinson). Wilkinson is also the Court Administrator for the Circuit Court in the Twentieth Judicial Circuit of Florida, in which the District is located. After Wilkinson became Chairman, he determined that Meloy receives compensation in a regularly established position and is entitled to membership in the FRS. Wilkinson testified at the hearing. Meloy has sole responsibility for implementing the District's policy and administering the day-to-day operation of the District. Relevant portions of Wilkinson's testimony are instructive. Q. And whose job is it to carry out that policy? A. Mr. Meloy. Q. When you came on board in 1994, Mr. Meloy, was he employed by the district? A. That's correct. Q. How many other administrators does the district employ? A. None. Q. Who runs the day-to-day affairs of the fire district? A. Mr. Meloy. Q. He is required to work a certain work schedule? A. No, sir. Q. What is he required to do as far as hours go? A. Once we set the policy, then we expect, you know, the chief to carry that out. And for however many hours it takes during the week, you know, the month to see it is fulfilled. Q. Do you know if he is on call? A. He is on call 24/7. Q. And what does that mean? A. 24 hours a day, seven days a week. Q. Is that 365 days a year? A. That's correct. * * * Q. Let me ask you to put your other hat on as the court administrator for the 20th Judicial Circuit. Are you involved with the Florida Retirement System? A. Yes, I am. Q. And you are a participant? A. Yes, I am. Q. Your duties as the court administrator, how would you compare that to Mr. Meloy's duties as the fire chief administrator of the Alva Fire District? A. Well, with the exception that I certainly make a lot more than he does for the duties that he has, it is similar. You know, I'm paid an annual salary and expected to get the job done. If you have to work 60 hours, you have to work 60 hours. If you get through sooner, hopefully you do. But that never happens. The District requires Meloy to spend as much time as is needed to implement the policy of the District and to administer the day-to-day business of the District. The hours vary, and there are no set hours. Some days, Meloy's day begins at 6:00 a.m. Other days, Meloy does not get to work until 9:00 a.m. or noon. Some days, Meloy leaves work at 5:00 p.m. and then must return immediately to the office. "It is whatever is needed." The District employs four individuals. One is Meloy. Two are certified firefighters. The other is a part- time bookkeeper. The bookkeeper and the two certified firefighters are members of the FRS. The two full-time firefighters maintain time sheets, and the District pays them for overtime. The District compensation of its full-time firefighters is consistent with compensation on an hourly basis. Meloy is not a certified firefighter, and the District does not compensate Meloy on an hourly basis. Meloy does not maintain or submit time sheets. The District does not pay Meloy for overtime. Like the certified firefighters, Meloy performs some of his duties when called anytime, 24 hours a day. However, neither the certified firefighters nor Meloy has the option to refuse to work when called. The employment positions of the certified firefighters and Meloy do not cease when the purpose for being called is satisfied. Although the bookkeeper for the District is never on call, she maintains a schedule similar to that of Meloy. She works those hours necessary to perform her duties. Like Meloy, the bookkeeper's position does not cease when she completes her work. The District pays compensation to Meloy in accordance with an annual salary rather than an hourly rate. Meloy does not have an established schedule during which he must implement the board's policy and administer the day-to- day operations of the District. Meloy occupies a regularly established position within the meaning of Section 121.021(52)(b). Meloy is the District administrator. The position has been in existence since 1988 and is not a temporary position within the meaning of Section 121.021(53)(b) or Rule 60S-1.004(5). Respondent's final argument is that a determination of Petitioners' request to enroll Meloy in the FRS is barred by the judicial doctrines of res judicata or collateral estoppel. Respondent argues that final agency action determined that the payments received by Meloy through June 29, 1992, are reimbursement for expenses. Respondent argues that nothing has changed since that time, and Meloy cannot now revisit the issue of his compensation. Findings regarding Respondent's final argument require some historical perspective. The District joined the FRS in 1988. At that time, the District purchased past service credit for a number of employees, including Meloy. Meloy enrolled as a member of the Special Risk Class. When Meloy enrolled as a member of the Special Risk Class, a question in the enrollment form asked Meloy if the applicant was certified as a firefighter or required to be certified as a firefighter. Meloy answered in the affirmative. Meloy has always been required to be certified as a firefighter in order to receive retirement benefits as a member of the Special Risk Class. However, Meloy has never been certified as a firefighter pursuant to Section 633.35. Meloy has never completed an essential firefighting course that is a statutory prerequisite to certification. By letter dated June 29, 1992, Respondent notified Meloy that Respondent was terminating Meloy's membership in the FRS. The letter stated two grounds for termination. One ground was that Meloy had not completed the firefighting course required for membership in the Special Risk Class. The second ground was that the payments Meloy received from his employer are reimbursement for expenses rather than compensation. Meloy did not appeal either ground stated by Respondent on June 29, 1992, for the termination of benefits. Meloy does not contest the first ground and is not now seeking enrollment in the FRS as a member of the Special Risk Class. Rather, Meloy now seeks benefits as a member in a regularly established position defined in Section 121.021(52)(b). Meloy does contest the second ground stated by Respondent on June 29, 1992, for terminating Meloy's membership in the FRS. Respondent determined that Meloy did not receive compensation from 1988 through June 29, 1992. The time for appealing that determination has expired, and Meloy cannot now amend the scope of this proceeding to include any payments he received on or before June 29, 1992. Respondent asserts that its determination on June 29, 1992, also establishes that payments received by Meloy after June 29, 1992, are not compensation. Respondent argues that Meloy's duties have not changed, and the payments Meloy receives are reimbursement for expenses. On June 1, 1999, Respondent sent a letter to Wilkinson explaining Respondent's denial of Meloy's application for enrollment in the FRS. In relevant part, the letter stated: By certified letter dated June 29, 1992 (copy enclosed), the State Retirement Director, Mr. A.J. McMullian III, advised Mr. Meloy that he was inelligible for Florida Retirement System (FRS) participation since the monthly payments he received were for "expenses" and not compensation. Subsequent to Mr. McMullian's letter, a hearing was conducted by the Division of Administrative Hearings and Mr. Meloy's payments were defined as expenses as a statement [sic] of fact (copy enclosed). In light of this, the Division has already made a determination that Mr. Meloy is ineligible for FRS participation from 1979 through 1992. Since your letter indicates that Mr. Meloy's duties and payments he has received have not changed since 1988, he remains ineligible for FRS participation. Respondent's Exhibit 10. The DOAH hearing referred to in the letter on June 1, 1999, involved allegations that Meloy had violated state ethics laws when he first attempted to enroll in the FRS in 1988. In 1992, the Florida Commission on Ethics (Commission) investigated Meloy's participation in the FRS. The Commission entered an order finding probable cause that Meloy violated Section 112.313(6) when he submitted his enrollment form for retirement benefits by corruptly using or attempting to use his official position to retain retirement benefits for himself and his assistant fire chief when neither was qualified to receive benefits. The findings concerning the assistant fire chief are neither relevant nor material to this proceeding. Meloy requested an administrative hearing, and the Commission referred the matter to DOAH to conduct the hearing. ALJ Susan B. Kirkland conducted the administrative hearing and entered a Recommended Order on July 8, 1994. The Recommended Order found that Meloy misrepresented his entitlement to membership in the Special Risk Class and did so with wrongful intent. The Order concluded that Meloy violated the relevant statute because Meloy attempted to use his position, or the property and resources entrusted to him, to secure a benefit. The Order recommended a civil penalty, public censure, and a reprimand. The Final Order of the Commission adopted the Recommended Order. The Recommended Order contains three paragraphs that discuss the payments received by Meloy. Those three paragraphs state: 3. In 1976, the . . . District was established. The firefighting equipment and vehicles were originally located in Meloy's garage, where he maintained an automotive repair shop. Meloy received a fixed reimbursement from the District each month for the use of his garage and for repair services which he rendered for the District. * * * 5. In 1988, the District joined the . . . (FRS). At that time the District employed four full-time firefighters and a part-time secretary. Meloy worked part-time as the administrator of the District but did not draw a salary and continued to receive remuneration in the form of the monthly reimbursement for expenses. . . . * * * 18. By letter dated June 29, 1992, [Respondent] notified Meloy that his membership in the FRS . . . was being terminated. The grounds for termination were that Meloy had been receiving payments for expenses and not compensation. . . . The Recommended Order does not operate under the judicial doctrines of res judicata or collateral estoppel to preclude a determination of whether the payments received by Meloy after 1988 are compensation. The Recommended Order limits the finding that Meloy received payments for expenses to those received in 1988. Paragraph 5 expressly states, "At that time. . . Meloy . . . continued to receive . . . reimbursement for expenses. . . ." The findings in paragraph 18 merely recite the grounds stated by Respondent but do not make findings on the merits of the stated grounds. The findings in paragraph 3 are not probative. The Recommended Order made no findings concerning the payments Meloy received after 1988. Respondent determined that the payments between 1988 and June 29, 1992, were payments for expenses rather than compensation. Irrespective of whether Respondent's determination was legally and factually correct, Meloy did not appeal Respondent's determination. The determination by Respondent on June 29, 1992, involved a separate and distinct application from the application at issue in this case. No determination has been made that the payments since June 29, 1992, either are or are not compensation. The application at issue in this case is a new application for different benefits. Meloy is not applying for benefits to which he would be entitled if he were a member of the Special Risk Class. Nor can Meloy apply for benefits related to the payments received on or before June 29, 1992. Respondent argues that nothing has changed in the course of Meloy's tenure with the District. Payments that were reimbursement for expenses before 1992 arguably have not now been transformed into compensation. Respondent is incorrect. Something has changed in the course of Meloy's tenure with the District. Sometime after September 1990, the payments to Meloy changed from reimbursement for expenses to monthly salary payments. The District no longer housed equipment at Meloy's garage, Meloy no longer serviced the equipment at the garage, and the amount of the monthly payments to Meloy increased from $540 to $833. Relevant portions of the transcript of the administrative hearing in the ethics case are instructive. Meloy asserted in the ethics case that in 1988, he was a volunteer fireman. As a volunteer, rather than a salaried employee, Meloy argued that he was not required to be certified as a firefighter. The attorney who represented the Commission sought to show that Meloy was not a volunteer after 1990 but was a salaried employee of the District. As long as I'm volunteering, I don't have to have it. Q. Okay. You are also the administrator for the full-time firemen, is that right? A. Yes. Q. You have the power to hire and fire them? A. Yes. Q. You set their hours? A. Yes. Q. The district also has a part-time secretary, is that right? A. Yes. Q. And currently that's Ms. Connie Bull? A. Correct. Q. She handles payroll matters? A. Yes. Q. She writes checks? A. Yes. Q. Pays bills? A. Yes. Q. She and you both answer questions that the full-time firemen might have about vacation or sick leave or retirement, is that right? A. To the best of our ability, yes. Q. Okay. Now, before 1990 you were not an employee of the fire district, is that right? A. According to how you define it, I guess. I was paid more as an expense type arrangement up until sometime around '90. I don't remember the exact date. Q. Okay, you received the expense reimbursement prior to 1990 for working on the fire equipment; is that right? A. It covered a lot of things. We worked on the fire equipment there in my business, we housed a lot of equipment there, used my facilities for -- well, we have used my facilities as a station for awhile. Q. When you say your facilities, you mean the Alva garage that you used to own? A. Right. Q. When you got the expense reimbursement, you would get the same amount every month, is that right? A. Yes. Q. It changed some over time, though, didn't it from '73 to 1990? A. Yes. Q. You got that same reimbursement amount regardless of the number of hours that you worked for the district? A. Yes. Q. And regardless of what any actual expenses might be? A. Correct. Q. Now, sometime in 1990 you became an employee of the district on a part-time basis; is that right? A. That's when they started taking out taxes and all and that reverted to more of a salary type reimbursement rather than expense. In other words, I was paying income tax and Social Security and everything and at that time it was considered more of a salary. Q. And they started doing that in 1990 sometime? A. I don't remember the date. It was approximately then. Q. When you started receiving a salary, you stopped getting the reimbursement; is that right? A. Right. Q. Isn't it true that when you first started getting the salary that the amount of the salary was several hundred dollars a month more than what the reimbursement had been? A. I couldn't tell you. Q. Isn't it a fact that the last-- A. I don't believe that would be right, though, because it didn't go up very much any one time, I don't think. I would have to see the figures to tell for sure. Q. All right. Isn't it a fact that the last time you received a monthly reimbursement you were receiving about $540 a month? A. I don't have those figures in front of me. Q. You don't remember? A. No. Q. Isn't it a fact that when you first got a salary in October 1990, you got $833 a month? A. I still couldn't tell you. I don't have those figures in front of me. I have them wrote down if I can get my papers. Q. All right. You don't know how much you get now? A. Yeah, but this ain't 1990. Respondent's Exhibit 3 at 29-32. The state argued in the ethics case that Meloy has been salaried since October 1990 and was required to be certified as a firefighter before enrolling in the FRS as a member of the Special Risk Class. The state now argues that Meloy has never been salaried and cannot enroll in the FRS as member of the regular class. The state cannot have it both ways. Meloy is entitled to membership in the FRS for the period after June 29, 1992. During that time, the District has paid a salary to Meloy that is compensation for duties performed in a regularly established position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners' request for Meloy to participate in the FRS. DONE AND ENTERED this 7th day of January, 2002, in Tallahassee, Leon County, Florida. _________ ________________ 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 7th day of January, 2002. COPIES FURNISHED: J. Frank Porter, Esquire Porter & Jessell, P.A. 1424 Dean Street Ft. Myers, Florida 33901 Thomas E. Wright, Esquire Division of Retirement P.O. Box 3900 Tallahassee, Florida 32315-3900 Erin B. Sjostrom, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Mallory Harrell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Pursuant to the Joint Motion for Summary Final Order, Petitioners and Respondent stipulate to the following facts: Catherine Christin Silva and Victor Silva, individually and as parents and natural guardians of Savannah Silva (Savannah), a minor, are the “Claimants,” as defined by section 766.302. Savannah incurred a “birth-related neurological injury,” as that term is defined in section 766.302(2), on or about August 13, 2020, the date Savannah was born. Savannah was a single gestation who, at birth, weighed 3,460 grams. Ellen Joy Schwartzbard, M.D., rendered obstetrical services in the delivery of Savannah and, at all times, was a “participating physician,” as defined in section 766.302(7). South Miami Hospital is a hospital located in Miami, Florida, and is the “hospital,” as that term is defined in section 766.302(6), where Savannah was born. South Miami Hospital and Dr. Schwartzbard complied with the statutory notice requirements under section 766.316.
Conclusions This matter came before the undersigned on Petitioners’ and Respondent’s Stipulation and Joint Motion for Final Order Deeming Claim Compensable Pursuant to Chapter 766, Florida Statutes and Joint Motion for Additional Time to File Joint Stipulation Concerning the Award, or Alternatively, to Advise the Court that a Hearing is Required Concerning Award (Joint Motion for Summary Final Order), filed October 29, 2019.1
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
Findings Of Fact At all times pertinent to these proceedings, the Petitioner has been employed as a firefighter with the City of Miami, Florida. He received his Certificate of Compliance with the Division of the State Fire Marshal on August 25, 1976. On August 25, 1988, Petitioner applied to the Respondent for Firefighter Supplemental Compensation pursuant to Section 633.382, Florida Statutes, at the bachelor's level. On September 21, 1988, Respondent notified Fire Chief C. H. Duke, City of Miami Fire Department, that Petitioner's application was accepted. This notification provided, in part that "... the firefighter will receive Supplemental Compensation for qualifying under the requirements of Section 633.382, Florida Statutes and Rule 4A-37.78 for possession of a/an [sic] Bachelor's degree of Business Administration." On November 20, 1989, Respondent asked Petitioner to provide a copy of his undergraduate transcript. In response to that request, Petitioner provided a copy of his transcripts from the University of Arkansas, Miami Dade Community College, and Barry University. On April 4, 1990, Petitioner was informed that he was being removed from the Firefighter Supplemental Compensation Program. This determination was based on a reevaluation of his transcripts which reflected that he did not possess an eligible Associate or Bachelor's Degree as required by Section 633.382, Florida Statutes, and by Rule 4A-37.085, Florida Administrative Code. [Formerly Rule 4A-37.076, Florida Administrative Code.] Petitioner received 8 credit hours at the University of Arkansas, 27 credit hours at Miami Dade Community College, and 36 credit hours from Barry University. Petitioner received a Master of Business Administration Degree from Barry University on May 6, 1988. Petitioner does not possess an Associate degree or Bachelor's Degree from an accredited college or university.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order which DENIES Petitioner's eligibility to participate in the Firefighters Supplemental Compensation program. DONE AND ENTERED this 29th day of August, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NUMBER 90-2922 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraphs 1-9 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 10 are rejected as being merely recitation of testimony in the form of excerpts from the affidavit of George J. Petrello, Ph.D., the former Dean of the Business Executive Program at Barry University. The statements in Paragraph 5 are overly broad and fail to consider the well recognized differences between a bachelor's program and a master's program, particularly as to subjects outside the major field of study. The statements in Paragraph 6 merely reflect Dr. Petrello's interpretation of the pertinent statute and rule. His interpretation is clearly not the only permissible interpretation. The proposed findings of fact submitted on behalf of Respondent are adopted in material part by the Recommended Order. Copies furnished: Kathleen Phillips, Esquire KAPLAN & BLOOM, P.A. 1951 Northwest 17th Avenue P. O. Drawer 520337 Miami, Florida 33152 Lisa B. Santucci, Esquire Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Emmanuel Jared Marinez, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the death benefit, the amount owing for attorney's fees and costs, and the amount owing for past expenses.
Findings Of Fact Findings related to compensability Magaly N. Marinez is the natural mother of Emmanuel Jared Marinez, a deceased minor. Emmanuel was born a live infant on December 26, 2001, at Orlando Regional South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight exceeded 2,500 grams. Emmanuel expired January 6, 2002, following removal from life support. The physician providing obstetrical services at Emmanuel's birth was Stephen Phillips, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.1 Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Emmanuel suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered him permanently and substantially mentally and physically impaired and which, following removal from life support, resulted in death. Consequently, the proof demonstrates that Emmanuel suffered a "birth-related neurological injury" and, since obstetrical services were provided by a participating physician at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31 provides for an award providing compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . At hearing, the parties agreed that Petitioner receive a parental award of $100,000.00, to be paid in lump sum; a death benefit for the infant of $10,000.00; an award of $10,500.00 for attorney's fees ($10,000.00) and other expenses ($500.00) incurred in connection with the filing of the claim; and no award for past expenses, since any such expenses have been paid by a collateral source. Such agreement is reasonable, and is approved.
