The Issue Whether or not Hewey Clemmons, the spouse of Petitioner, Anne Clemmons, died "in-line-of-duty" as defined in Section 121.021(14), F.S., so as to qualify Petitioner for the death benefits provided in Section 121.091(7), F.S.
Findings Of Fact At all times material, Hewey Clemmons and Petitioner Anne Clemmons were man and wife. At all times material, Hewey Clemmons was employed as a correctional officer at Calhoun Correctional Institution on a regular duty shift. September 30, 1990 was a very hot day, with the personnel in the yard perspiring. That day, immediately preceding lunch, Inmate Warren Miller ran down the sidewalk toward the chow hall. Running is a violation of behavior for inmates at Calhoun Correctional Institution. Officer Clemmons stopped Inmate Miller. At that time, Inmate Miller raised his hands up and down, arguing with Officer Clemmons. This incident was passed over for resolution until after the meal and subsequent head count. Inmate Miller was a renowned and repetitive discipline problem, had a long disciplinary record, and was known as a "bad inmate." Although his usual behavior was more in the nature of disrespect and sarcasm rather than verbal threats, other correctional officers had had to use force on Miller several times prior to September 30, 1990. He was viewed by some of them as perennially hostile, argumentative, and possessed of an "attitude." At least one correctional officer at Calhoun Correctional Institution had felt compelled to administer mace to Miller on a prior occasion due to his behavior. After lunch and head count on September 30, 1990, at approximately 11:55 a.m. CST, Officer Clemmons proceeded to the dormitory to retrieve Miller in connection with the morning's running incident. He guided Miller into the laundry room and instructed him to turn around so that Clemmons could handcuff him. All correctional officers deposed that handcuffing under the foregoing circumstances was prudent and standard operating procedure and that Officer Clemmons was a "by the book" officer. Inmate Miller began arguing with Officer Clemmons and pushed, slapped, or otherwise struck Officer Clemmons' hand so as to break Clemmons' grip on Miller while Clemmons was attempting to handcuff him. Miller continued to refuse to be handcuffed by Clemmons, and an oral argument ensued in which Clemmons and Miller were loud and angry. Officer Lockett observed the foregoing altercation and intervened to settle things down. He talked Miller into allowing Clemmons to handcuff him and lead him away. He observed that Clemmons was angry and upset by the incident. Later, Miller was presented by Clemmons at the Lieutenant's office and officers there observed Clemmons to be angry and upset. Officer Branaman testified that in the entire time he had worked with Clemmons, he had never witnessed Clemmons as upset as he was at the time he observed him that day. Miller was escorted to the infirmary for pre-confinement medical screening. Sometime thereafter Officer Branaman observed Clemmons walking moodily outside in the yard near the internal gate. After a brief radio conversation with a superior officer, Adams, Officer Clemmons entered the internal gate in the yard and, after only a few steps, collapsed on the sidewalk. Correctional facility personnel responded with due haste, and despite valiant efforts by internal health care professionals and the Liberty County EMT team that eventually responded, Clemmons never revived. He was pronounced dead at the Calhoun County Hospital. Neither party's proposals has alluded to the fact that the materials submitted include two death certificates with different times of death and that the times related in many reports vary considerably, but having eliminated uncorroborated hearsay, having accounted for the Liberty County ambulance service personnel operating on eastern time and the correctional facility and hospital operating on central time, and having reconciled all the deposition testimony as much as possible without imputing falsehood to any witness, it is found that Officer Clemmons died at the scene at approximately 12:35 p.m. CST. Officer Clemmons' widow was denied death in-line-of-duty benefits on the basis of Officer Clemmons' pre-employment physical and the death certificate to the exclusion of all other matters, including a letter of voluntary acceptance of responsibility for the payment of death benefits sent by the state's workers' compensation administrator, the Florida Department of Insurance, Division of Risk Management (P-1 to Stanley Colvin's deposition). Officer Clemmons' pre-employment physical, performed on November 13, 1989, included an electrocardiogram which showed "sinus rhythm, premature systoles, ventricular borderline low qrs voltage, report must be correlated with clinical data by a physician, borderline for age 51." The examining physician noted in his records that Officer Clemmons had "premature ventricular contractions, borderline ekg, 1+ albumin in urine; advised to see cardiologist about pvc's." Nonetheless, the agency, knowing the results of Clemmons' pre- employment physical and that he would be called upon to deal regularly with violent and abusive inmates still chose to employ Clemmons beginning in December, 1989. Prior to his death, Clemmons' fellow correctional officers and superior viewed him as healthy and in "tip-top shape." He had served as a correctional officer at the Calhoun Correctional Institution without any health problems from December 1989 until his death, a total of ten months. The instructions on Clemmons' death certificate required the physician pronouncing death to state "IMMEDIATE CAUSE (final disease or condition resulting in death)" on the first line, and thereafter to "sequentially list conditions, if any, leading to immediate cause. Enter UNDERLYING CAUSE (Disease or injury that initiated events resulting in death) LAST." On the line of Clemmons' death certificate requiring the physician pronouncing death to list the "immediate cause of death," the pronouncing physician listed "cardiac arrest." On the first line of Clemmons' death certificate requiring the physician pronouncing death to fill in "due to or as a consequence of" the pronouncing physician listed "ASCAD" (a misnomer probably signifying "atherosclerotic heart disease"). Nothing more has been inserted on the remaining lines providing for sequentially listing conditions. However, the physician who pronounced death did not testify at formal hearing nor did the physician who performed the pre-employment physical. Dr. Lawrence J. Kanter, a board certified cardiologist and the only medical expert to testify in this cause, reviewed Officer Clemmons' pre- employment physical with EKG, the depositions of the witnesses present on September 30, 1990, the death certificate, and all relevant medical reports. With regard to the death certificate, Dr. Kanter testified that without the benefit of previous examination or an autopsy, neither he nor the physician pronouncing death could properly make any diagnosis of preexisting atherosclerotic disease. With regard to the pre-employment physical and EKG printout, he opined that all that was clear therefrom was that on the day of the pre-employment physical, Officer Clemmons had had slightly elevated blood pressure and an EKG which was not abnormal for a person his age. Dr. Kanter also noted that one may have some mild problem or may even have atherosclerosis and still may not have any significant clinical heart disease. He stated that while atherosclerosis can result in a plaque rupture from changes in blood pressure brought about by emotional stress followed by the blood vessels occluding and thus a sudden heart attack or stroke, the ventricular fibrillation (chaotic beating of the heart so that it is unable to support life) which Officer Clemmons suffered also could result from other stress-induced factors. Dr. Kanter rendered his opinion within a reasonable degree of medical probability that the cause of Officer Clemmons' death was sudden cardiac death because Officer Clemmons never had ventricular fibrillation or a blackout or syncopal episode before, was evaluated by physicians and no heart disease was documented to any certainty, and he had severe emotional distress which was totally out of character to his normal way of functioning. Upon cross- examination, Dr. Kanter indicated that although "anything is possible, the temporal relationship within minutes of a severe emotional stress makes it inconceivable to consider anything else except something that's of the outer realm of possibility." Dr. Kanter considered it important in forming his opinion that Officer Clemmons had died as the result of a stress-induced cardiac death that Officer Clemmons had evidenced no marked symptomatology for at least ten months, suffered a significant emotional trauma, was extremely upset, and within moments of being upset had a cardiac arrest and was not resuscitated. Respondent attacked the weight and credibility of Dr. Kanter's opinion that the emotional trauma of the altercation with Inmate Miller triggered Officer Clemmons' sudden cardiac death because of the physician's expressed belief that Officer Clemmons' collapse came "within moments" of the traumatic confrontation and the record as a whole shows that the time lapse was 40 minutes, but there is absolutely nothing to show how few moments Dr. Kanter meant or that he did not mean 40 minutes. It is also noteworthy that Dr. Kanter also stated that his opinion was partly based on the fact that Clemmons' collapse occurred "within five minutes of the marked change in affect," referring to Clemmons' walking moodily in the outside yard, not in referring to the angry and upset condition Officer Clemmons evidenced immediately after the precipitating physical episode in the dormitory. Upon the only credible, competent medical evidence, it appears that whether Officer Clemmons died from atherosclerosis aggravated by emotional stress producing cardiac death or simply died an instantaneous cardiac death without pre-existing atherosclerosis and/or heart disease, the precipitating cause of death was his emotional reaction to acute stress following the altercation with Inmate Miller.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a Final Order finding that Correctional Officer Clemmons suffered death in-the-line-of-duty and awarding his survivors the appropriate benefits commensurate therewith. DONE and ENTERED this 25th day of August, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 25th day of August, 1992.
Findings Of Fact Based upon the stipulation of the parties, the following facts are found: Houda Charfi and Omar Elmouki (Petitioners) are the parents and legal guardians of Mundir Elmouki (Mundir), and are the “Claimants” as defined by section 766.302(3). Mundir incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), on or about May 11, 2018, which was the sole and proximate cause of Mundir’s injury. At birth, Mundir weighed 3,390 grams. Luis Sanchez-Ramos, M.D., rendered obstetrical services in Mundir’s delivery, and, at all material times, was a “participating physician” as defined in section 766.3012(7). UF Health Jacksonville is a hospital located in Jacksonville, Florida, is the hospital where Mundir was born, and is the “hospital” as that term is defined in section 766.302(6). Mundir died on May 11, 2018. Petitioners filed a petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
The Issue The issue in this case is whether Madeline Elizabeth Kitchen suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Sarah W. Kitchen and Steven Kitchen are the natural parents of Madeline Elizabeth Kitchen (Madeline), a minor. Madeline was born a live infant at Orange Park Medical Center, a licensed hospital in Orange Park, Florida, on March 9, 2013. Obstetrical services at the time of Madeline’s birth were provided by Sharonn Jones, CNM, ARNP; and her employer, North Florida OB/GYN, LLC. At all material times, Nurse Jones and North Florida OB/GYN were participants in the Florida Birth-Related Neurological Compensation Plan. NICA’s notice is not at issue as to Nurse Jones or North Florida OB/GYN in this proceeding. Madeline weighed in excess of 2,500 grams at birth. Petitioners and Intervenors contend that Madeline suffered a birth-related neurological injury, and Petitioners seek compensation under the NICA Plan. Petitioners and Intervenors take the position that Madeline’s brain injury was caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period, which rendered Madeline permanently and substantially impaired. Respondent contends that Madeline’s injury does not meet the definition of a birth-related neurological injury as defined in section 766.302(2), Florida Statutes. Petitioner Sarah Kitchen was admitted to Orange Park Medical Center on March 9, 2013. Her membranes were artificially ruptured at 12:48 in the afternoon, and her amniotic fluid was clear. There were some fetal heart decelerations during labor. After Mrs. Kitchen pushed for over an hour, vacuum extraction with two pulls was used to assist vaginal delivery. There was meconium stained amniotic fluid requiring intubation and suctioning before first cry. Madeline’s Apgar scores were 4 at one minute, 9 at 5 minutes and 9 at 10 minutes. The cord blood pH was 7.155. Madeline was in the transitional nursery for a period of time but was not admitted to the NICU. She then spent two days in the regular nursery prior to being discharged home. Other than concerns about Madeline’s ability to nurse, there appear to have been no other concerns at discharge. When Madeline was about seven months old, Mrs. Kitchen began to have concerns about Madeline’s progress and discussed her concerns with Madeline’s pediatrician. In July 2014, Madeline was seen by Dr. Harry Abrams, a pediatric neurologist with Nemours Children’s Clinic in Jacksonville. He concurred with the parents’ concerns of motor, as well as language delays. Dr. Abrams recommended an MRI of the brain, referral to Nemours Orthopedics and Nemours GI, as well as the Early Steps Program anticipating the need for speech and physical therapy. He also noted mild microcephaly. Madeline had an MRI of the brain in August 2014, when she was approximately 16 months of age. The MRI revealed “bilateral periventricular hyper intense signal areas with cystic changes with old hemorrhagic products along with the lateral ventricles lining with a thin corpus callosum consistent with periventricular leukomalacia.” Following the results of the MRI, Madeline had a follow- up appointment with Dr. Abrams who reviewed the results with Madeline’s parents and “discussed in detail the usage of the term of ‘cerebral palsy.’” Dr. Abrams’ notes reflect that the importance of early intervention was discussed and noted that the evaluation for the Early Steps Program had already begun. Dr. Abrams again saw Madeline at an appointment in December 2014. His notes reflect that the mother reported ongoing developmental progress, but had expressed frustration at Madeline’s therapies being limited to physical therapy once per month and speech therapy once per week, with no occupational therapy. Dr. Abrams recommended more frequent therapies. At an appointment in June 2015, Dr. Abrams’ notes describe Madeline as a “2-year-old child with mild cerebral palsy who is making good progress.” At the time of Mrs. Kitchen’s deposition on July 1, 2015, Madeline was receiving physical therapy (once a week for 30 minutes), speech therapy for eating (once a week for 60 minutes), and occupational therapy consults on an irregular basis. She is able to feed herself, mostly with her fingers. Madeline did not walk until 18 months of age, but is now walking without having to hold on to anything. Her left leg is the “weaker” leg and is slightly shorter than her right leg. Her left foot turns in. There have been discussions regarding the possibility of a brace for her left leg if it does not correct itself. Her speech is limited to a few words. NICA retained Donald C. Willis, M.D., to review Madeline’s medical records. Dr. Willis made the following findings and expressed the following opinion in a report dated April 20, 2015: I have reviewed the medical records for the above individual. The mother, Sarah Kitchen was a 28 year old G1. Her AFP screen was positive for Down syndrome. She was evaluated by Maternal-Fetal Medicine. Amniocentesis was declined. The abnormal AFP was not a factor in the outcome of this case. The mother was seen for decreased fetal movement three days before delivery. Biophysical profile (BPP) was 8/8 with normal amniotic fluid volume (AFI of 10 cms). Findings suggested the fetus was not in distress. Non-stress test (NST) was done the following day and was reactive, again suggesting the fetus was not in distress. The mother presented to the hospital in labor about two days after the above NST. Her cervix was dilated 4 cms. Amniotic fluid was reported to be clear. Fetal heart rate (FHR) tracing during labor was not available for review, but labor and delivery record reported “meconium stained fluid and decelerations” as complications. Vacuum extractor with two pulls was used to assist vaginal delivery. Birth weight was 3,538 grams (7 lbs 12 oz’s). Apgar scores were 4/9/9. The newborn was intubated for meconium and suctioned. Arterial cord blood gas was within normal limits with a pH of 7.155 and a base excess of -5. Newborn physical gives an overall assessment of normal exam. Newborn hospital course was uneventful. The baby was discharged home on two days after birth. The child was subsequently followed for developmental delay. MRI on 08/04/2014 (about 16 months of age) showed periventricular leukomalacia. In summary, there was not significant oxygen deprivation during labor and delivery and indicated by normal blood gas and normal Apgar score at 5 minutes. The newborn hospital course was uncomplicated. 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. In a follow-up report dated August 13, 2015, Dr. Willis reaffirmed his opinion: I have reviewed the fetal heart rate (FHR) tracing for the above individual. The base line FHR is normal at about 140 bpm on admission and heart rate variability is normal. The FHR monitor tracing does not suggest fetal distress during labor. The normal appearing FHR tracing would be in agreement with my previous medical opinion that the baby did not suffer oxygen deprivation during labor. Dr. Willis’ opinion 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 is credited. Respondent retained Laufey Y. Sigurdardottir, M.D., to evaluate Madeline. Dr. Sigurdardottir is a pediatric neurologist with the Division of Neurology of Nemours. Dr. Sigurdardottir reviewed Madeline’s medical records and performed an independent medical examination on Madeline on July 29, 2015. Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: MEDICAL HISTORY: Madeline is a 2-year 4-month-old Caucasian female who was born via vaginal delivery at 40 weeks’ gestation after a normal pregnancy. The labor was slightly prolonged, some fetal heart decelerations were noted and the delivery ended with vacuum extraction. There was meconium stained amniotic fluid, requiring intubation and suctioning below vocal cords. The patient was 7 pounds 13 ounces at birth, had diminished respiratory effort at birth and Apgar scores were 4 after 1 minute and 9 after 5 minutes. The patient was briefly tended to in the transitional nursery, but then spent 2 days with mom in the newborn nursery prior to being discharged home, presumed to be in good health. Madeline has been found to have significant delays in both motor and cognitive development. She has been diagnosed with a chronic static encephalopathy including cerebral palsy with left greater than right- sided symptoms, language delay and poor social interaction for age. MRI imaging has shown signs of old intracerebral hemorrhage and cystic periventricular leukomalacia. Due to the severity of Madeline’s delays, her case is being considered for NICA compensation. * * * Labor history: Mom presented on 03/09/13 at 10:10 a.m. and was admitted for labor. The chart documents a total hours in labor as 62 hours and documents stage 1 as 60 hours 15 minutes, stage 2 was 1 hour 54 minutes, and stage 3 as 4 minutes. An epidural anesthesia was used, the fetal heart rate tracing is not provided for our review, but there is documentation of decelerations without further clarification in an inpatient summary from Orange Park Medical Center. Mom reports having push for more than 1 hour and therefore vacuum extraction was used. Some documentation describes forceps attempt, but this cannot be verified on record review. Two vacuum attempts were needed and a third degree perineal laceration was sustained by Madeline’s mother. When Madeline was born, there is no documentation of shoulder dystocia, and she is noted to be blue and have poor respiratory effort. Suctioning was performed below vocal cords due to meconium staining of amniotic fluid. She had Apgar score of 4 at 1 minute. Her Apgar scores quickly improved being 9 after 5 minutes and 9 after 10 minutes with her only lack being in area of color. Arterial cord blood was sent revealing a pH of 7.16 with a pCO2 of 67.8 and pO2 of less than 47%. A venous cord blood was also sent with the pH of 7.24 and a pCO2 of 51. Madeline was 50 cm at birth, 3538 g and a head circumference of 32.5 cm, which places her head circumference to be at the 8th percentile, her length to be at the 34th percentile and her weight at birth to be at the 62nd percentile per the CDC growth curve. The patient was discharged home, presumed to be in good health. Developmental and Medical History: Madeline’s mother reports early feeding difficulties. She recalls her being fairly floppy and that the parents were worried about delayed visual fixation until about 3-4 months of age. Madeline’s mother brought her to her pediatrician around the age of 6 months for complaints of not grabbing toys and not showing interest in rolling over or sitting up. She had an early frenulectomy due to poor sucking and was referred for hip x-rays for poor mobility at the age of 15 months, which was found to be normal. The patient was referred to physical, occupational and speech therapy and was able to walk unassisted around the age of 20 months. The parents feel that her left side is weaker than her right. She seems unsteady, having a broad stance and frequent falling. The parents are also worried about her language development and report her having only 5-6 words (bye-bye, mama, dada, papa and milk) and a few signs at 2 yr 4 months of age. She seems to be very attracted to music and will want to listen to music and dance along. Madeline is not interested in interacting with her peers. She loves to swing on swings and will often just go about the house on her own terms. Her parents do feel that she will turn towards their face if they say her name, but that it has been difficult to get her to repeat words or point to pictures or label items. They do feel that she knows her body parts. Due to concerns for possible cerebral palsy, she was seen by Dr. Abram of Neurology in Nemours Children’s Specialty Care, Jacksonville in July of 2014 at the age of 15 months. A neurologic exam did comment on her head circumference being below the 5th percentile, there being no dysmorphic features and that her neurologic exam did not have obvious asymmetries. An MRI performed at that time showed: Bilateral periventricular hyperintense FLAIR signal areas are seen with a few cystic changes more severe on the right side. Old hemorrhagic products are seen along the lining of the lateral ventricles. Corpus callosum is thin. Findings are consistent with periventricular leukomalacia. Myelination is appropriate for age. Size and configuration of the ventricles and basal cisterns appear normal. There is no evidence of restricted diffusion. No evidence of abnormal intracranial enhancement. The pituitary gland and cervical medullary junction region appears normal. Hippocampi appear normal. Posterior fossa structures including brain stem and cerebellum appear normal. * * * Developmental testing: She has had the following developmental testing performed in August of 2014, PLS-5 language assessment with a comprehension of 87, expressive language of 89 and total score within the low range of normal. The Battelle Developmental Inventory, however, at the age of 17 months paints a different picture with motor skills at 57, self-help and adaptive skills of a standard score 55, social and emotional a standard score of 85, cognitive a standard score of 77 and communication standard score of 61. * * * NEUROLOGIC EXAMINATION: Mental status: Madeline is on the move throughout the visit, going from 1 toy to the next and seems significantly on her own terms for the majority of the visit. She does at times interact with her parents, but little eye contact is noted. She will at times come up to the examiner briefly. She will look towards voice at times. She will follow simple commands such as stop or no. She will accept food from her parents’ hands but not have joint attention during that time. No clear repetitive behavior is noted. No understandable words are heard by the examiner. Cranial nerves: Her pupils are equal, they do react to light. She has conjugate eye movements for the most part, but occasional left eye extropia is noted, especially if she is looking up and to the right. She has symmetric facial features, but seems to keep her mouth open. Her hearing seems intact. Her motor exam reveals diminished axial tone with some tendency for slip through when held in vertical suspension. She has asymmetric tone, mainly in the lower extremities with increased resistance to passive range of motion in the left lower extremity. Her strength seems to be diminished in bilateral lower extremities and she will at times keep her knees and hips slightly flexed during ambulation. Reflexes are slightly brisker in the left lower extremity than the right. This is not noted in upper extremity. She seems to favor her right upper extremity on exam, using that consistently to grab for toys. Balance and coordination: There is significant abnormality with a broad based, slightly ataxic gait and frequent falls. Her intoeing does seem to lead to her tripping over her left foot. She will, however, stand up off the floor without difficulty. There is significant clumsiness with fine motor skills, both on the right and left upper extremity. There is no seizure-like occurrences and no clear tremor, no monoclinic jerking. Overall assessment: Here we have a 2-year 4- month-old female with chronic static encephalopathy manifested by borderline microcephaly, left greater than right sided CP, moderate receptive and expressive language delay and some delays in social interaction and attention. Her language testing from one year ago is outdated and her current language abilities from what can be observed here would result in her total language score below 70. She has motor disability with bilateral hemiplegic symptoms, but overall good functional skills with independent ambulation having been obtained at 20 months. She is also able to feed herself orally and has been relatively physically healthy from birth. On review of the case, there is no evidence of a prenatal vascular events or periods of decreased fetal movements. On review of the labor and delivery records there is little to support a serious ischemic event and her mild depressed 1 minute apgar score alone with arterial cord blood pH being 7.16 does not support such an event. Results of IME: As to question 1: The patient is found to have a permanent but not substantial physical impairment and mental abilities that are delayed but progressing. As to question 2: On review of medical records, there is minimal evidence of substantial birth asphyxia. Although initial Apgar score was 4 there was immediate recovery and the mild decrease in arterial cord blood pH is not below the 7.00 cut off. The neuroimaging findings are consistent with a hypoxic ischemic injury but do not help in the timing of such an injury. As to question 3: At this time, Madeline’s prognosis regarding her motor development are good, with independent ambulation already in place. Her cognitive development seems to be more difficult to prognosticate at this time, but ongoing speech therapy along with further workup of possible autistic characteristics would be indicated. We expect ongoing progress in this area and we estimate her life expectancy as being full. At this time, it seems likely that she will need significant ongoing supportive services, although the need for this lifelong is uncertain at this time. I am therefore not recommending Madeline to be included into the NICA program and would be happy to answer additional questions. Dr. Sigurdardottir’s opinion that Madeline has a permanent, but not substantial, physical impairment and mental abilities that are delayed, but improving, is credited. Dr. Sigurdardottir’s opinion that there is minimal evidence of substantial birth asphyxia “but there is little to support a serious ischemic event and her mild depressed 1 minute apgar score alone with arterial blood pH being 7.16 does not support this event” is credited. The greater weight of the evidence establishes through the opinions of two experts that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical injury to Madeline’s brain during labor, delivery or the post- delivery period. Here, the stipulated record demonstrates, along with Dr. Sigurdardottir’s expert opinion, that Madeline’s physical impairment is permanent, but not substantial, and that mental abilities are delayed, but progressing. While Madeline has some motor and mental deficits, these deficits do not render her permanently and substantially mentally and physically impaired.
The Issue Whether Harold W. Barney, deceased, was "killed in the line of duty" as that term is used in Chapter 121, Florida Statutes (1975). Petitioner contends: That chief Harold Barney, deceased, was killed in line of duty because the congestive heart failure from which he died was caused by a pulmonary thromboembolus, which was caused by an on-the-job injury, or by the strenuous work that he had to do, in terms of mental stress. That therefore, the widow and Petitioner, Mrs. Barney, is entitled to receive the widow's benefit provided by Section 121.019(7)(c)1., Florida Statutes (1975). That the presumption of Section 185.34, Florida Statutes, permits the Respondent to assume that the death was in line of duty or that he was killed in-line-of duty if it could be shown that he died of heart disease, hypertension or hardening of the arteries. Respondent contends: That there was no nexus or medical connection between Chief Barney's employment with the Dade County Department of Public Safety and the incident which caused his death. Therefore, Petitioner is not entitled to the benefits of a widow of one killed in line of duty. That the presumption contained in Section 185.34, Florida Statutes, is inapplicable.
Findings Of Fact Depositions of Robert J. Myerburg, M.D., Eric Lian, M.D., and E. Wilson Purdy have been considered in this order. The portions of the depositions on matters that are not in evidence are not considered in this order. Cloyice B. Barney, the Petitioner, is the surviving spouse of Harold W. Barney, a deceased member of the Florida Retirement System under Chapter 121, Florida Statutes, who was employed by the Dade County Public Safety Department at the time of death, on June 3, 1975. Petitioner timely filed her petition for administrative hearing upon denial by the agency, the Division of Retirement, of her request of payment pursuant to the in-line-of-duty death benefits provision, Section 121.019(7)(c)1., Florida Statutes (1975). The decedent, Harold Barney, was involved in an automobile accident on October 4, 1972, at approximately 6:15 P.M. He was driving a county car which suffered damages estimated at One Hundred Fifty Dollars ($150.00). There is no substantial evidence that Mr. Barney was injured in this accident. He did not mention any injury to his family, his employer or to his personal physician. His son testified that he did not notice any physical change in his father immediately after the accident, but state that after a period of time he began to limp off and on for a couple of days and then maybe months later he's start to limp again. Upon questioning, the deceased would respond he was tired but did not attribute the limp to any accident. Dr. Harvey L. Jorgenson first saw the deceased on October 3, 1974. Chief Barney did not relate a history of any type of injury to Dr. Jorgenson, but Dr. Jorgenson testified that his walk "was a little bit different. . . it wasn't exactly a limp." Two or three weeks before his death Mr. Barney awoke feeling extremely tired. He continued to follow his normal work schedule until May 30, 1975, when he left work to see his personal physician who admitted him to the hospital. He died in the hospital three days later, on June 3, 1975. Dr. Joseph H. Davis, Chief Medical Examiner for Dade County, Florida, performed the autopsy at the request of the family, on June 4, 1975. When asked his opinion of the cause of death, he stated, In my opinion, the cause of death was congestive heart failure due to pulmonary thromboemboli. That means blood clots which break loose within the veins of the body and are carried through the venous system to the lungs to lodge in the lungs, due to bland plebothrombosis of lower extremities -- phlebo meaning vein, thrombosis, clots, lower extremities meaning from the groin region down, somewhere in that area, having origin in that area. And by bland, I mean that there was no evidence of an active inflammatory condition, in which case the diagnosis would have been thrombophlebitis, meaning inflammation of veins. They had the shape and the configuration of origin from lower extremity as opposed to, say, upper extremity or pelvis. Dr. David stated that he found evidence of the following diseases: (1) moderately enlarged heart of "the type of weight increase [of the heart] that would be seen with somebody with hypertension," (2) a small tumor in the center of one of the adrenal glands called a pheochromocytoma, and (3) both kidneys were enlarged with cysts, polycystic kidneys associated with hypertension. He found no evidence of prior injury or arterial disease. He was puzzled as to how the thromboemboli was formed. The dissection of the deceased lower extremities was confined only to the area immediately above the knee joint, the back of the knee where there is a major collection of veins, the large popliteal vein is formed; and, also, my dissection continued from the back of the knee, the popliteal area, down to about midway on the calf. I did not go into the ankles nor did I carry my dissection of the femoral and afemoral veins up through the thigh. In reply to the query, "Did you find any evidence yourself of prior trauma to the lower extremities?" he stated, No. The extremities appeared symmetrical and normal in appearance. There were no obvious, significant scars, swelling, discolorations; and, in the history, my inquiry of Dr. Jorgenson revealed no history of trauma. In answer to the question, "Would the fact that this accident occurred in 1972 rule out the possibility that the blood clots were formed from a trauma that occurred in 1972?" Dr. Davis replied, It would rule it out in the sense that, in one mechanism -- that is, a mechanism inflammatory reaction -- that type of mechanism, I think, would be pretty-well ruled out because, had that been the case, I would expect, despite an individual being stoic, episodes of swelling of the extremities and incapacitation and discolorations of the skin from poor circulation and so forth. The other type of tie, where there can be a tie-in, is where the original episode was severe enough to result in thrombi, distortion of the veins, healing with scarring and partial interference with blood flow through the veins so that, instead of a normal smooth-walled flexible tube with valves placed at regular intervals, there are valves that would have been distorted by thrombus, obliterating that area of the vein, and then the valve is no longer competent and the walls are narrowed in one area, but not in other areas. And, if that situation occurs, then the stage is set for the subsequent formation of thrombi at some indetierminant time in the future; and that's the only way -- If there were trauma in 1972 and if, over a period of time, the apparent symptoms of the trauma disappeared and everything was quiescent and then this occurred, if there is a link it would have to be on the basis of distortion of the veins left over from the previous trauma and, at this particular time, the interference with blood flow was sufficient to produce some additional clots in this area that was set up for it. Dr. Davis testified that the limping if it occurred subsequent to the accident and that if there was no prior diagnosis of arthritis or something, then, following a trauma, showed residual signs of discomfort, incapacitation, to wit: limping, then that would set the stage for consideration of the original trauma as possibly playing a role in the subsequent events which led to this death. Dr. Davis did not dissect the legs stating, it's not my custom to dissect lower extremeties due to the funeral customs of this country. So, if I encounter a person with a pulmonary embolus and where there is a perfectly logical explanation based on circumstances -- a person, say, with congestive heart failure, cancer, et cetera, severe disease process, he's been confined to bed -- I usually don't dissect the legs. Dr. Davis stated that the emboli that he found in the lungs were in various stages of healing and there "was some where the margin of the clot was already being incorporated into the wall of the pulmonary artery by scar tissue." He stated, "It wasn't something that had impressed me as having been there much longer" than perhaps two weeks or so. Dr. Davis was asked the question, "If he had suffered an injury to such an extent that it caused him recurrent limping and we will assume further that each time there was a flare-up or some of the time there was a flare-up if there would be clot formed, would that, be a reasonable possibility that that could happen?" Dr. Davis replied, "It's a possibility, yes, but" and in answer to the question, "Can you say on that evidence, [as to his limping] within a reasonable degree of medical probability, that the accident was the cause of the emboli?" Dr. Davis replied, "No, I cannot." Dr. Harvey L. Jorgenson first saw Mr. Barney on October 3, 1974, and found that Mr. Barney had had a kidney stone removed in 1971 and that he had repeated attacks of malarial fever after World War II but none after 1971. He found that he weighed 204 pounds where his normal weight should have been 185 and therefore, was about 20 pounds overweight. His blood was normal except his uric acid was 8.5 whereas the upper limit is 8 in the normal range. His blood cholesterol was 380 but should have been not higher than 300. His blood pressure was 140 over 100 and should have been not more than 90. It was suggested that he diet and take a medication prescribed for his blood pressure. Dr. Jorgenson saw him on the 11th of April, 1975, and suggested that he reduce a little more in weight and continue to take medicine for his blood pressure, which had improved. He was told to report to the doctor if anything changed. The next time Dr. Jorgenson saw Mr. Barney was the 30th of May, 1975, at which time he was very ill and was sent to the hospital. Dr. Jorgenson stated that there were many veins in the body that are the size and shape of the leg veins and stated that it was an enigma to him as to the cite of the emboli. Dr. Eric Lian stated, The most frequent site for venous thrombosis is in the popliteal -- what I mean, in the posteria vein, in the posteria area, the calf vein, the veins of the calf." When asked, "Is there any connection between hypertension and increased coagulability?" he said, It depends on the causes of hypertension and its consequences. If a patient has essential hypertension and then develops a congestive heart failure, certainly suggest increased chance of thromboembolism. [Question:] Is that what happened in this case? This patient, I think one can't say with certainty. He has a history. It's possible, but I don't think one can say it with certainty. And I will say most of the causes of thromboembolism, even young, healthy people, you cannot find any cause at all, nor any concurrent theory on this, you can't find." He also stated: [Question:] "Can you state, categorically that that stress was not linked to his death? I cannot say it's a cause of death. That's all I can say. Okay? Stress, itself, it cannot be a cause of death -- mental stress-- unless you have physical abnormality to begin with." Dr. Robert J. Myerburg stated that the shape of the emboli was from the vein rather than from the heart but that he did not know where the emboli came from. He stated, "I would suspect that the veins of the legs being most likely in an obese individual." Dr. Myerburg in answer to the question whether it is impossible for emotional stress to cause the venous thrombi to occur stated, "Well, the present state of knowledge knows of no relationship between emotional stress and the formation of venous thrombi." Dr. James R. Jorgenson, an assistant county attorney, stated that there were two major events occurring in addition to the major event of administering a large metropolitan police agency that was under investigation in the two or three week period before Mr. Barney died. That the deceased held a very responsible position and in addition was pursuing a college degree and was president-elect of the downtown Kawanis Club. Chief E. Wilson Purdy, Director of Public Safety and Sheriff of Dade County, testified that the deceased was an extremely conscientious employee and his main assistant. His duties were stressful and complex and he also used his time to pursue his education and civic involvement which was encouraged by his employer. The Hearing Officer finds: There was a possibility that the deceased, Mr. Barney, suffered bodily injury in the accident in which he drove his automobile into a car rail and sustained One Hundred Fifty Dollars ($150.00) damage to the vehicle. There is a possibility he injured his lower extremities. The fact of an injury was not established. There is a possibility that an injury caused the blood clot or embolism which ultimately reached the heart and caused the death of Mr. Barney. There is a possibility said injury was the same injury which might have been sustained on October 4. The fact that an injury caused the clot was not established. Mr. Barney lived a very stressful active life which included a difficult job, a hard course of educational pursuit and a position of leadership in the community particularly as an officer in the Dade County Kawanis Club. There has been no evidence produced to show stress caused the death of the deceased although some feel it is a factor in developing coronary artery disease, heart attacks and sudden death. The fact that job stress caused the death was not established. The proposed recommended orders together with the briefs of the parties have been carefully considered in the rendition of this order as has the depositions of the two doctors and the Director of Public Safety and Sheriff of Dade County, Florida, and the testimony adduced at the public hearing.
Recommendation Deny the request for payment under Section 121.091(7)(c)1., Florida Statutes (1975). DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of October, 1977. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1977. COPIES FURNISHED: Stephen S. Mathues, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Brian S. Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
Findings Of Fact Prior to April, 1961, Mabel D. Gardner had been employed as a school teacher in the Dade County school system for approximately fourteen years. In February, 1961, Mrs. Gardner was suspended from employment. Mrs. Gardner's employment was terminated in April, 1961, after a hearing was conducted. By letter dated July 18, 1961 Mrs. Gardner was advised that an application to place her on disability retirement status with the Teachers' Retirement System of Florida had been granted. A copy of the Division of Retirement Teachers' Retirement System file for Mrs. Gardner was received in evidence as Respondent's Exhibit 1. On several occasions thereafter Mrs. Gardner sought to have her disability status changed so that she could return to employment. Most recently Mrs. Gardner made application to the Division of Retirement for a change in her status based upon an examination by Dr. Bernard Tumarkin, which was conducted on May 22, 1976. By letter dated August 25, 1976, the Division of Retirement notified Mrs. Gardner that her request to return to employment had been denied. Mrs. Gardner thereafter filed a petition for administrative hearing. The basis of Mrs. Gardner's disability status has, since July, 1961, been that she is mentally ill, and therefore unable to assume the duties of a school teacher. At the hearing Mrs. Gardner testified that her employment with the Dade County School System was improperly terminated in April, 1961; that she was improperly classified as disabled under the Teachers' Retirement System in July, 1961; and that she had never been, and was not now mentally ill, or in any way disabled. Mrs. Gardner testified at some length respecting putative injustices imposed upon her by the Dade County public school officials. She testified that an organized conspiracy had been established within the school system to fire her, and that the hearing provided her was a sham. Mrs. Gardner testified that she was diagnosed as being mentally ill by persons who never examined her, and that the original diagnosis of her being mentally ill actually pertained to a person who had a similar name, who was examined at Jackson Memorial Hospital in Miami, at approximately the same time that she was a patient at Jackson Memorial Hospital. Mrs. Gardner also testified that persons unknown to her, who she believed to be school board detectives, were focusing beams of light, which she identified as microwaves, on her and that these beams caused her to be dehydrated and on at least one occasion caused her automobile not to work. Mrs. Gardner also testified with respect to some injustices committed by police officials in Dade County upon her. Mrs. Gardner offered several exhibits in support of her testimony. Prior to her being placed on disability retirement status with the teachers' retirement system, Mrs. Gardner had been diagnosed as suffering from schizophrenic reaction, paranoid type. Expert testimony in the form of a letter from Dr. John M. Caldwell, the Chairman of the Department of Psychiatry at Jackson Memorial Hospital dated June 19, 1961, is contained in Mrs. Gardner's retirement system file. Dr. Caldwell concluded that Mrs. Gardner would not be able to enact her duties as a teacher, and that the prognosis for her recovery was poor. The only expert opinions respecting Mrs. Gardner's present condition contained in her retirement system file, or presented as evidence in any form at the hearing, is in the form of an evaluation conducted by Dr. Bernard Tumarkin, and Dr. Harry Camp, Jr. In a letter dated June 12, 1976, Dr. Tumarkin expressed his opinion that Mrs. Gardner was having a paranoid schizophrenic reaction, and that his prognosis was guarded. No expert opinion was offered in support of Mrs. Gardner's claim that she is not disabled. Insufficient evidence was offered at the hearing from which it could be concluded that Mrs. Gardner's disability status with the Teachers' Retirement System should be changed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED That a final order be entered denying the application of Mabel D. Gardner for a change in her present disability status with the Teachers' Retirement System of Florida. RECOMMENDED this 16th day of February, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Doug Spangler, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 Mabel D. Gardner 6073 West Flagler Miami, Florida 33144
The Issue Whether Petitioner, the surviving spouse of Ralph Timmerman, is entitled to receive "in line of duty" death benefits?
Findings Of Fact Petitioner is the surviving spouse of Ralph Timmerman, who died on January 23, 1998, at 48 years of age. Petitioner and Mr. Timmerman had been married since September 5, 1981. They had two daughters, who are now four and thirteen years of age. Mr. Timmerman was a member of the Florida Retirement System. At the time of his death, Mr. Timmerman was employed by Martin County as the Assistant Building Maintenance Superintendent. Mr. Timmerman had been Martin County's Building Maintenance Superintendent until December of 1990, when he suffered a heart attack and had five-vessel by-pass surgery. Following his return to work, he was reassigned to the position of Assistant Building Maintenance Superintendent. This was a new supervisory position that had been specifically created for him. By design, it was less demanding than the Building Maintenance Superintendent position he had formerly held. One of Mr. Timmerman's former subordinates, Harold Markey, was tapped to succeed Mr. Timmerman as the Building Maintenance Superintendent, a decision that Mr. Timmerman supported. As the Assistant Building Maintenance Superintendent, Mr. Timmerman worked under Mr. Markey's supervision. Mr. Markey made an effort to avoid assigning Mr. Timmerman any tasks that, given Mr. Timmerman's history of heart problems, might jeopardize Mr. Timmerman's health. Mr. Timmerman's primary duties were to directly supervise the building maintenance staff and to deal with contractors hired by Martin County to perform building maintenance and repair work. Mr. Markey did not ask Mr. Timmerman to attend or make presentations at Martin County Board of County Commissioners meetings because he knew that Mr. Timmerman would feel uncomfortable performing these duties. Neither did Mr. Markey require Mr. Timmerman to do any physically demanding work. In fact, whenever, he saw Mr. Timmerman engaged in such physical labor, he would intervene and instruct Mr. Timmerman to stop. Whenever Mr. Timmerman indicated during the course of the work day that he was tired or not feeling well, Mr. Markey allowed Mr. Timmerman to leave work and go home.7 Notwithstanding these accommodations made for him, Mr. Timmerman, on a number of occasions, complained to Mr. Markey about (what Mr. Timmerman perceived to be) Mr. Markey's lack of understanding and compassion as a supervisor. He expressed these views in a loud and argumentative manner.8 As a general rule, following these outbursts, Mr. Timmerman apologized to Mr. Markey for the manner in which he had acted. It was during such an outburst on January 23, 1998, at his work site and during his normal working hours, that Mr. Timmerman suffered cardiac arrest and subsequently died. The day before, Mr. Timmerman and members of his staff had attended a meeting with Mr. Markey. Among the subjects discussed at the meeting was the response of Mr. Timmerman and his staff to a water main break that had occurred at the Martin County-operated library in Hobe Sound on January 20, 1998. The discussion concerning this subject lasted approximately 15 to 20 minutes. Mr. Markey was not at work on January 20, 1998, and therefore it was Mr. Timmerman's responsibility to coordinate the efforts to repair the break and remedy any water damage that had occurred at the library. Mr. Timmerman was notified of the water main break by Teresa Van Cardo, a Martin County employee occupying the position of Administrator Coordinator II for General Services. After some time had passed, Ms. Van Cardo became concerned that Mr. Timmerman had not yet arrived at the library. She therefore telephoned Mr. Markey at home to express her concerns about Mr. Timmerman's delay in responding to the scene. (Huey Cummings, Martin County's lead plumber, however, was on the scene and assessing the situation.) After speaking with Ms. Van Cardo, Mr. Markey telephoned Mr. Timmerman and told him that "he needed to get to the site and he needed to make an assessment of it." Mr. Timmerman replied that Huey Cummings was already at the library. When Mr. Timmerman came home from work that day he told Petitioner about what had happened at the library and that he was "very pleased at the way the whole situation was handled" by his staff. At the January 22, 1998, staff meeting (which was a regularly scheduled meeting), Mr. Markey voiced his criticism of the manner in which the staff had responded to the water main break at the library two days before,9 and he indicated what improvements the staff needed to make in responding to similar incidents in the future. It should not be necessary, he told his subordinates at the meeting, for anyone to have to bother him at home for guidance in dealing with a situation such as the one that arose at the library. At least one of the employees at the meeting (Patti Smith) could sense (based upon her observations of Mr. Timmerman's body movements as Mr. Markey spoke) that Mr. Markey's comments upset Mr. Timmerman. Indeed, Mr. Timmerman was upset. He felt that Mr. Markey's criticism was unwarranted, and, after Mr. Markey had voiced his criticism, Mr. Timmerman told Mr. Markey and the others at the meeting that, in his opinion, "everybody responded exceptionally." That evening, when he arrived home from work, Mr. Timmerman was still upset about the negative comments that Mr. Markey had made at the staff meeting earlier that day. Mr. Timmerman shared with Petitioner what Mr. Markey had said at the meeting and expressed his disappointment that Mr. Markey had criticized, rather than praised, his subordinates. The following morning (January 23, 1998), Mr. Timmerman woke up at 5:30 a.m. He ate a small breakfast and, after spending time with his youngest daughter, left for work at 6:30 a.m. He appeared to be "very calm" when he left. Mr. Timmerman arrived at work at or about 7:00 a.m. At around 7:30 a.m., Mr. Markey, at the request of another employee, went to Mr. Timmerman's office (which was located in a different building than Mr. Markey's office) and requested that Mr. Timmerman not park his assigned Martin County- vehicle in the staff parking lot (which was reserved for personal vehicles). Mr. Timmerman reacted with displeasure to the request. He told Mr. Markey, "This is bull crap," or at least used words to that effect. Mr. Markey repeated his request and then left Mr. Timmerman's office. Shortly thereafter, Mr. Markey discovered that two expensive vacuum cleaners were missing from the storage area where they were supposed to be kept. A few months earlier, Mr. Markey had instructed Mr. Timmerman to put up a "sign-out" sheet outside the storage area for employees to sign whenever they removed an item from the storage area. After discovering that the vacuum cleaners were missing from the storage area, Mr. Markey looked for, but did not find, such a "sign-out" sheet. When he returned to the building where Mr. Timmerman's office was located, Mr. Markey confronted Mr. Timmerman and asked him where the vacuum cleaners were. Mr. Timmerman told Mr. Markey that it was not his (Mr. Timmerman's) day to watch the vacuum cleaners and that he did not know where they were. Mr. Markey then said to Mr. Timmerman, "We need to get them located today," to which Mr. Timmerman responded, "Well, later on today, I will get somebody on it and we'll try to find them." Mr. Markey was not satisfied with Mr. Timmerman's response. He advised Mr. Timmerman that he wanted Mr. Timmerman, not someone else, to look for the vacuum cleaners and that he wanted Mr. Timmerman to look for them that morning, not later in the day. He also told Mr. Timmerman that he expected Mr. Timmerman to place a "sign-out" sheet outside the storage area before the morning was over. Mr. Markey then walked away and left the building. When Mr. Markey was approximately 30 feet away, Mr. Timmerman yelled out to him, "What do you have up your ass today?" Mr. Markey stopped and replied, "Obviously you." Mr. Markey then continued walking and returned to his office. Approximately four or five minutes later, an obviously very upset Mr. Timmerman stormed into Mr. Markey's office, yelling and screaming that Mr. Markey mistreated his staff and lacked understanding and compassion. Mr. Markey told Mr. Timmerman to calm down so that they could discuss what was bothering Mr. Timmerman. Mr. Timmerman, however, continued to yell and scream. In fact, if anything, he became louder. Mr. Markey made further attempts to persuade Mr. Timmerman to sit down and talk calmly about his grievances, but these efforts were to no avail. During his exchange with Mr. Timmerman, Mr. Markey, like Mr. Timmerman, raised his voice. Mr. Timmerman left Mr. Markey's office in a huff. As he was walking down the hallway, he shouted back to Mr. Markey, "I take-up for you all of the time with the guys," and then added, "I treat you like a F-en prince, and this is what I get." Mr. Timmerman then went into another employee's (Sharon Barnes') office and started pacing back and forth. His face was red and he was visibly agitated. Ms. Barnes told Mr. Timmerman to calm down. He replied to her that it was "too late." Mr. Timmerman thereupon returned to Mr. Markey's office and continued his ranting. Mr. Markey shouted back at Mr. Timmerman. When Mr. Markey told Mr. Timmerman to "sit down," Mr. Timmerman said that he "couldn't" and then turned to leave. Mr. Markey asked where Mr. Timmerman was going. Mr. Timmerman responded that he was going to take a ride in his truck. As Mr. Timmerman exited Mr. Markey's office and walked toward his truck, Mr. Markey followed behind him. Mr. Markey believed that, given Mr. Timmerman's agitated emotional state, Mr. Timmerman was in no condition to drive. He urged Mr. Timmerman not to go to his truck. Mr. Markey was ultimately able to convince Mr. Timmerman to sit down on a bench outside the building where Mr. Markey's office was located. Mr. Timmerman remained on the bench, however, for just a couple of seconds before getting up and walking away. As Mr. Timmerman walked away, he continued to yell and scream at Mr. Markey. Mr. Markey shouted back at Mr. Timmerman, repeating his plea that Mr. Timmerman not drive off in his truck. When Mr. Timmerman was approximately 20 feet from the bench, he started breathing heavily and leaned against a wall for support. Mr. Markey ran over to Mr. Timmerman to make sure that he did not fall. Mr. Markey again exhorted Mr. Timmerman to calm down. Mr. Timmerman, as he had done previously, told Mr. Markey that he "couldn't." Mr. Timmerman then collapsed in Mr. Markey's arms. After gently lowering Mr. Timmerman to the ground, Mr. Markey ran to Ms. Barnes' office window, which was approximately ten or 15 feet away. When he got Ms. Barnes' attention, he instructed her to "call 911." Paramedics subsequently arrived on the scene. They were unable to revive Mr. Timmerman. He was pronounced dead at 8:35 a.m. on January 23, 1998. An autopsy was performed the following day by Frederick Hobin, M.D., the Medical Examiner for the 19th Medical Examiner District of Florida. Dr. Hobin is a Florida-licensed physician, who is board-certified in anatomic, clinical, and forensic pathology. Following the completion of the autopsy, Dr. Hobin prepared an autopsy report, which contained the following findings and observations, among others (which the undersigned accepts as accurate): PATHOLOGIST'S OPINION MECHANISM OF DEATH: SUDDEN CARDIAC DEATH DUE TO ISCHEMIC CARDIOMYOPATHY CAUSE OF DEATH: OCCLUSIVE CORONARY ARTERIOSCLEROSIS MANNER OF DEATH: NATURAL . . . GROSS AUTOPSY PROTOCOL EXTERNAL EXAMINATION . . . INTERNAL EXAMINATION . . . CARDIOVASCULAR SYSTEM The heart weighs 680 grams. The increase in weight is attributed to biventricular hypertrophy. All of the chambers are markedly dilated. There is a dense gray scar throughout the posteroseptal myocardium. There are some focal areas of hyperemia in the inferior septum. The cardiac valves appear functionally intact. The coronary arteries have diffuse calcific occlusive arteriosclerosis. There is indication of a double remote bypass coronary graft procedure. There is some sclerosis of both of the grafts and one of the grafts appears to have been occluded by thrombus material throughout its entire length. The thrombus material appears remote in age and it is gray and friable. There is moderate arteriosclerosis of the aorta with some reduced elasticity. . . . FINDINGS AT GROSS AUTOPSY Arteriosclerotic cardiovascular disease. Occlusive coronary artery disease. Remote coronary artery bypass graft. Remote thrombosis of coronary artery graft. Ischemic cardiomyopathy. Healed posteroseptal myocardial infarction. . . . MICROSCOPIC EXAMINATION HEART There is marked hypertrophy of the myocardium as well as very extensive scarring. This is associated with sclerosis of the coronary artery bypass grafts and they are occluded by degenerated thrombus material. There appears to be minimal fibrosis of the mitral valve. Appended to Dr. Hobin's autopsy report were the written results of laboratory tests that had been conducted in conjunction with the autopsy. Such testing, according to the written results, revealed the presence of cannabinoids (cannabis metabolites) in Mr. Timmerman's blood.10 Although at the time of his death, Mr. Timmerman (as the autopsy reflected) was suffering from a chronic, degenerative, life-threatening cardiovascular disease that had evolved over a prolonged period of time, he was able to, and did in fact, lead a relatively normal life notwithstanding his disease. He was still able to work, and he continued his employment with Martin County11 until his death. Mr. Timmerman, however, because of his disease, was vulnerable to sudden cardiac death. Sudden cardiac death is a term the medical profession uses to indicate that a person has undergone a rapid, fatal deterioration as a result of an adverse cardiac event. In most, but not all, instances, the adverse cardiac event is an arrhythmia (as was the situation in Mr. Timmerman's death). Emotional stress and excitement can produce physiological changes that increase cardiac demand and consequently may precipitate an arrhythmia that leads to sudden cardiac death. Whether a particular incident or situation will produce such a result depends, not only on the individual's physical health, but on his or her emotional makeup as well. In the instant case, it appears, within a reasonable degree of medical probability, that work-related emotional distress (which manifested itself during the confrontations Mr. Timmerman had with Mr. Markey immediately preceding Mr. Timmerman's death) aggravated Mr. Timmerman's preexisting cardiovascular disease and thereby precipitated his demise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division of Retirement issue a final order finding that Petitioner is qualified to receive "in line of duty" death benefits from the account of her late husband, Ralph Timmerman. DONE AND ENTERED this 13th day of August, 1999, in Tallahassee, Florida. STUART M. LERNER 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 13th day of August, 1999.
The Issue Whether Petitioner is entitled to "in line of duty" death benefits from the Florida Retirement System (FRS).
Findings Of Fact In assessing whether or not a death was "in line of duty," the Division of Retirement, in 1979, regularly relied upon the certificate of death; the Workers' Compensation First Report of Injury; the autopsy report, if there was one; any investigative reports or statements made by witnesses; and the final determination of the Workers' Compensation agency. Other items were also required, but if the Division of Retirement would have relied on this type of information then, which it would have, and if FRS requested and considered this type of information in denying Petitioner’s claim in 2003, which it did, it is appropriate that all of these sources also be considered in this proceeding, even without predicate, as to their internal hearsay statements. Where available, those items have been considered in this proceeding. This methodology is also approved and codified in Section 121.021(14), Florida Statutes. See the Conclusions of Law. That said, no single document is determinative of the issue of entitlement. On June 9, 1979, Donald Shackelford was a Volusia County Sheriff's Deputy and a member of FRS, with approximately one year of creditable service. On June 9, 1979, Deputy Shackelford was 36 years old. He passed away in his sleep at approximately 3:30 a.m., several hours after leaving work. The Workers' Compensation First Report of Injury on Deputy Shackelford was prepared by the decedent's supervising sergeant. It relates that Deputy Shackelford had stated at 1:19 a.m., on June 9, 1979, that he was not feeling well; was having cold chills; and was experiencing passing numbness in his hands. The Report states that those "injuries" were reported by Deputy Shackelford at 1:12 a.m., and that at 12:05 a.m., the deceased had been on duty and involved in a fight while arresting a suspect. There is no dispute that Deputy Shackelford was relieved of duty and went home before the end of his regularly scheduled shift on June 9, 1979. At the time of his death, Petitioner was married to Deputy Shackelford. Petitioner testified that when Deputy Shackelford arrived home early on June 9, 1979, he told her he had received a blow to the chest during a fight/arrest while on duty earlier in the evening. She believed that this blow caused his death. Deputy Shackelford had driven himself home in a patrol car, which he was required to keep at his residence even when he was off-duty. He also was required to be “on-call” 24 hours a day. However, he was not "on duty" at the time of his death. Later on June 9, 1979, an autopsy was performed by Dr. Schildeker, M.D., with the final diagnosis being: [T]hrombosis, right coronary artery, recent; myocardial infarct [infarction], early posterior left ventricle and septum; artherosclerosis, calcification coronary artery, severe; dilation right heart, moderate; pulmonary edema, acute. (R-15). The autopsy report also notes that there were bite marks (presumably from the resisting arrestee the night before) on Deputy Shackelford's arm, and lividity to the left side and lower portion of his face, neck, and upper shoulders. It does not note any bruising to his chest. (R-15). The autopsy report also reveals that ". . . in the coronary artery, approximately 4 centimeters from the point of origin there is an acute antemortem [before death] thrombosis which is completely occluding the lumen of the vessel." A current medical dictionary defines "thrombosis" as the formation of a blood clot in a vein or artery. Without expert medical testimony, the undersigned cannot determine if the "lividity" described in the autopsy report is bruising that occurred while Deputy Shackelford was alive or if it was postmortem lividity, which is the after-death settling of blood caused by the position of a body. However, the autopsy report also states: Careful examination of the body reveals no wounds or injuries that are contributory to the death. (R-15). The certificate of death form was also signed by Dr. Schildeker, M.D., on June 18, 1979. The form allows its signator to choose between "(Probably) accident, suicide or homicide, or undetermined." Deputy Shackelford’s certificate of death specifies "natural," on this blank. It also states under "Describe How Injury Occurred," the words, "Had coronary while making arrest." The "causes of death” listed on the certificate were, in order of descending immediacy: immediate cause: myocardial infarct [infarction], posterior; due to or as a consequence of: thrombosis, right coronary artery; and due to or as a consequence of: ASHD [artherosclerotic heart disease (R-7)]. Petitioner was represented by a lawyer for her workers' compensation claim. On June 29, 1979, she began to receive workers' compensation death benefits from Volusia County. The County was self-insured for workers' compensation purposes under Chapter 440, Florida Statutes. (P-3 and P-4). On July 27, 1979, the National Sheriffs' Association denied that Deputy Shackelford’s death was covered by its accidental death and dismemberment policy, because the death had been ruled "natural." (R-23). Within a month of Deputy Shackelford's death, Petitioner and their children relocated to Virginia Beach, Virginia. At the time of this relocation, Petitioner definitely provided forwarding information to her lawyer and possibly to Volusia County. On September 10, 1979, after being notified of Deputy Shackelford's death, the Division of Retirement sent a letter to the Volusia County Personnel Office, outlining the requirements for survivors, in this case Petitioner, to claim FRS benefits as a result of Deputy Shackelford’s death. (R-3). In 1979, the Volusia County Personnel Office's procedure would have been to forward the Division of Retirement information concerning the FRS claim requirements and the application to the surviving spouse at the spouse’s last known address. However, it cannot be verified whether or not the Division of Retirement's information was forwarded to Petitioner. Petitioner testified credibly that she never received the Division of Retirement's information from Volusia County. Petitioner subsequently remarried in 1980. On October 26, 2000, the United States Justice Department denied Petitioner benefits pursuant to the Public Safety Officers' Benefits Act, 42 U.S.C. § 3796 (PSOB), because the decedent's certificate of death suggested death was from a heart attack, and the cause of death was listed as "natural." The definition of "personal injury sustained in the line of duty" under that Act requires that the claimant demonstrate "that a traumatic injury was a substantial factor in the public safety officer's death." (P-7).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for “in line of duty” death benefits. DONE AND ENTERED this 6th day of August, 2004, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 2004. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Linda Shackelford Russell Post Office Box 1325 Daytona Beach, Florida 32115 Alberto Dominguez, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Interim Director Department of Management Services Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issues to be decided concern the question of the entitlement of the Petitioner to receive retirement benefits envisioned by Section 121.091(7)(c)1., Florida Statutes, related to the alleged in-line-of-duty death of her husband, Eddie Lee Robinson, Jr.
Findings Of Fact From January 7, 1969, until his death on April 12, 1984, Eddie Lee Robinson, Jr., served as a deputy sheriff in Gadsden County, Florida. In May 1971 the deceased was made a shift commander with that department and those were his duties from that period until the end. He held the rank of Captain at the time of his death. In his capacity as a shift supervisor, Eddie Lee Robinson, Jr., was in charge of the overall sheriff's office for part of the day. In essence, Robinson was the senior officer in charge while actively serving as a shift commander. The shift which Robinson worked would vary over time. The normal work week for Robinson at the time of his death was 46 to 50 hours. During his employment with the Gadsden County sheriff's office, Captain Robinson had been enrolled in the Florida Retirement System. Robinson had married Petitioner Margie Robinson, formerly Margie Rittman Mashhurn, on August 18, 1980, and was married to the Petitioner at the time of his death. In early October 1983 Eddie Lee Robinson, Jr., experienced an onset of severe chest pain syndrome. At that time he was seen by Dr. Earl Britt, a licensed physician in the state of Florida, who is board eligible in cardiology. In the patient history given to Dr. Britt at the time, Robinson indicated that he had a cardio-respiratory complaint as early as 1975 and was seen in an emergency room for that condition. The chest pain that he suffered on that occasion persisted off and on from that date forward and became more pronounced in the several weeks prior to the October 1983 visit with Dr. Britt. At that point in time Robinson complained of shortness of breath, even with limited physical activity. In 1976 Robinson had been diagnosed as suffering with diabetes and was taking medication for that condition. In October 1983 Robinson was overweight and suffered from hypertension. When seen by Dr. Britt on this occasion, Robinson was a smoker who had used a pack of cigarettes a day for approximately 35 years. At the time of his visit in October 1983 Robinson indicated that he had experienced what Dr. Britt describes as postcoital chest discomfort, some emotionally provoked chest pain and postprandial chest pain. Upon the recommendation of Dr. Britt, Robinson submitted himself to a coronary arteriogram which was done on October 4, 1983. This catherization process was performed by Dr. Charles C. Bianco, a licensed Florida physician who specializes in diagnostic radiology and, in particular, cardiovascular radiology. Dr. Bianco is a board certified radiologist. The results of the coronary arteriogram which Dr. Bianco performed revealed blockages ranging from 95% to 100% in the coronary arteries of three vessels. Given these facts, Dr. Britt recommended that Captain Robinson submit himself to by- pass surgery to correct these conditions. Captain Robinson declined this treatment, opting instead to be treated with medication provided by Dr. Britt. Following the October 1983 episode, Captain Robinson returned to his duties with the Gadsden County Sheriff's Office. His employer was aware of Robinson's heart condition when he returned to work. At the time of his death and those days before his death, Captain Robinson was on regular duty for the sheriff's office as a shift commander. The sheriff's office had made provision for him to take an hour off at the end of his shift to exercise by walking on those days when his shift ended around 6:00 p.m. This arrangement was not carried out if his duties demanded that he remain at his post throughout the entire shift sequence. In the late evening of April 10, 1984, Captain Robinson was summoned to the Gadsden County jail to assist the chief jailer, Lieutenant Cecil Morris. In particular, Lieutenant Morris was experiencing problems with an inmate, Morris Brown, who was incarcerated for attempted armed robbery and some form of aggravated battery or assault. Brown was a juvenile who had been adjudicated under the criminal law system pertaining to adults. He was some 6'1" and 200 pounds. Brown was a problem inmate who had destroyed lockers within the jail. On the night in question when Captain Robinson was summoned to the jail around 8:00 or 9:00 p.m., Brown had flooded his jail cell. Robinson and Morris entered the jail cell and Robinson talked to Brown to try to calm the inmate down. In doing so, Robinson shook a can of mace and told Brown that if Brown did not calm down, Robinson would have to mace him. Brown responded by indicating that he wished that Robinson would do that so that he could sue him. Brown also told Robinson, "If I get out, I know where you live." Eventually, Brown became less belligerent. Robinson then explained to Brown that they were going to have to put handcuffs on him, to which Brown replied that nobody was going to cuff him. Robinson and Morris then took the prisoner by the arms and moved him toward a bed or bunk within the cell. While this was transpiring, the prisoner pulled away from Morris, causing Morris to have to grab his arm again. Subsequently, Brown was moved back toward the bunk and pulled down to the bunk's surface. While Brown was seated on the bunk, a third officer put cuffs on him, and Brown struggled while this was being achieved. Throughout this episode Brown's basic demeanor evidenced antagonism. The situation with Morris Brown lasted for a period of five to fifteen minutes. Captain Robinson's reputation in his law enforcement work was that of an officer who was able to diffuse difficult situations with persons he encountered in his law enforcement work by talking to them as opposed to physical confrontation. Nonetheless, there were occasions where Robinson was called upon to physically subdue prisoners. In the experience of Lieutenant Morris, the previously described circumstance was the only occasion in which Robinson had been observed to interact physically with a prisoner. The extent of that physical confrontation did not include exchange of punches between the participants. When Captain Robinson returned home following the incident with Brown, he discussed that situation with his wife. The discussion was held on that same evening or the early hours of the following morning. His remarks and physical appearance pointed out how disturbed he was about the Brown incident. He seemed despondent. In the course of the conversation, Robinson took nitroglycerin because of his physical condition. He had not taken nitroglycerin for an identifiable period prior to that evening. (Nitroglycerin had been prescribed by Dr. Britt for Captain Robinson's heart condition.) Robinson remarked to his wife that he was "hurting." He told her that the prisoner Brown had flooded the jail cell and he had to go in and help restrain the prisoner. This was only the third incident, to the knowledge of his wife, in which Robinson had physically struggled with someone while performing his duties. On the following day, Captain Robinson went off duty. He visited with his mother, Lena Robinson, on a couple of occasions during that day and talked to two of his acquaintances, Luke McCray and King Baker. While in the presence of his mother and the other two individuals, there was no indication of pain on the part of Captain Robinson, nor did he use any medication. In their presence he did not appear troubled. In the late night of April 11 or early morning of April 12, 1984, while at home, Captain Robinson complained to his wife that he could not breathe. He took two nitroglycerin, began to have cold sweats and expired, having suffered a fatal heart attack described as an acute myocardial infarction, sudden death syndrome. At the time of his death, Eddie Lee Robinson, Jr., was 50 years old. Dr. Britt is qualified to give expert medical opinion testimony on the question of the cause of death of Eddie Lee Robinson, Jr. Those qualifications are based upon Dr. Britt's training and experience as a physician and specialist in cardiology, his familiarity with the deceased's underlying health and his knowledge of the basic facts of Robinson's encounter with Brown, the remarks of the Petitioner about the deceased's condition on the evening of the Brown incident when the deceased returned home and the explanation of the death approximately 26 to 28 hours later. In remarking on these matters, in his deposition of May 22, 1986, at page 9 under questioning by counsel for the Petitioner, Dr. Britt said: Assuming these facts, Doctor, within a reasonable degree of medical probability, is it your medical opinion that the struggle at the jail that night caused the death of E.L. Robinson? A I can answer that in the hypothetical fashion by stating that there are well- documented markers as to what will trigger a stable anginal pattern in a patient with documented coronary artery disease being emotional provocation with physical exertion as a very common trigger for what we call the inciting event for a fatal result. If you give the clinical scenario that you have just described and ask me to mark it, use it as an index marker of likely cause and effect, it would be very high as a probable cause of the effect that occurred to him within the next 24 to 36 hours as the inciting or provocative cause. Q Within a reasonable degree of medical probability then, it could be stated that the struggle at the jail precipitated the cardiological event that resulted in E. L. Robinson's death? A It would be reasonable to say that this was the inciting event that caused an unstable setting to occur out of which a sudden death syndrome could arise. Having considered these remarks by Dr. Britt, it is concluded that within a reasonable degree of medical probability the encounter between the deceased and Brown was the precipitating event of the death of Captain Robinson. Dr. Bianco, who had knowledge of the Robinson case and the patient's death, felt that the overall condition of the patient, that is significant coronary artery disease and the fact of participation in a job which was much too stressful for his physical condition, was more likely the cause of death than the specific incident with Brown. That condition is made the more threatening, according to Dr. Bianco, due to the patient's habit of smoking, the patient's diabetes and high blood pressure and obesity. Dr. Bianco emphasized the effect of stress as a contributing factor in the patient's demise. However, in the final analysis, Dr. Bianco defers to Dr. Britt on the subject of the causation of Captain Robinson's death, and for that reason the opinion of Dr. Bianco is discounted and does not form the basis of fact determination on the question of the causation of the death of Captain Robinson.
