The Issue The issue in this case is whether Petitioner should be terminated from employment with Respondent.
Findings Of Fact At all times material to this case, Mr. Davis was employed by the Sheriff's Office as a deputy sheriff. He had been employed by the Sheriff's Office for 11 years. On July 26, 2010, Mr. Davis was assigned to work a post in the healthcare facility of the Pinellas County jail, beginning at 7:00 a.m. This facility houses inmates who have medical problems. The inmates are placed in pods, and the pods are monitored by using direct supervision, meaning a deputy is stationed inside the pod with the inmates and is able to directly monitor and interact with the inmates. Additionally, the deputy supervising the inmates is able to summon medical assistance within the building for the inmates. On July 26, 2010, Inmate Kyle Howard (Mr. Howard) was housed in the pod that Mr. Davis was supervising. On that same day, Mr. Howard came to Mr. Davis and told Mr. Davis that he was ill. Sometime during the day, two inmates came to Mr. Davis and told him that Mr. Howard was sick and throwing up a lot. Standing about 30 feet away from Mr. Howard, Mr. Davis witnessed Mr. Howard "over the toilet in a vomiting mode." Around 9:00 a.m. on July 26, 2010, the nurse, who gave medications to the inmates, gave Mr. Howard a suppository for the nausea. Sometime between 3:08 p.m. and 3:47 p.m., an inmate came to Mr. Davis and told him that Mr. Howard was not responsive. Mr. Davis went to Mr. Howard's cell, discovered that Mr. Howard was not responsive, and called for emergency medical assistance. Mr. Howard was taken to the hospital, where he was pronounced dead. One of the responsibilities of Mr. Davis was to interact with inmates to determine what problems may exist and to summon medical assistance if necessary. On July 26, 2010, Mr. Davis did not attempt to speak to Mr. Howard to determine what was wrong with him and did not call for medical assistance until Mr. Howard was found unresponsive. Mr. Davis was required to check on the inmates in the pod every 30 minutes to monitor the wellness and security of the inmates in the pod. Mr. Davis is required to check each cell and inmate during these checks. After each 30-minute check, Mr. Davis is required to record on a Daily Log Report that he performed the check. The Daily Log Reports are part of the official records of the Sheriff's Office. Mr. Davis admitted that he did not make a complete check every 30 minutes as he was required to do. He walked part of the way down the hall and observed some but not all the inmates. He entered in the Daily Log Report that he had made the checks as required. During some of Mr. Davis's shift on July 26, 2010, Mr. Davis was playing Hearts on the computer and was checking Yahoo and MSN. Prior to the incident at issue, Mr. Davis had been disciplined two times for inappropriate use of computers while on duty. Mr. Davis has admitted that he committed the violations that are charged, but contends that he should be suspended rather than terminated from his employment. The Sheriff Office's General Order 10-2 sets forth the guidelines to be used in the application of discipline. The range of penalties is based on the severity of the violation, from Level One, which is the least severe, to Level Five, which is the most severe. Failing to monitor Mr. Howard and to call for medical assistance for Mr. Howard are severe violations and are Level Five violations. Failing to accurately record his 30-minute checks, because he was not checking each of the inmates during his rounds, is also a severe violation and is a Level Five violation. General Order 10-2 provides that two Level Five violations are assigned 60 points. The disciplinary range for 60 points is a seven-day suspension to termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Mr. Davis's employment with the Sheriff's Office. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2011. COPIES FURNISHED: Sherwood S. Coleman, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Jimmie Davis 2086 Pine Ridge Drive Clearwater, Florida 33763 James L. Bennett, County Attorney Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered which denies the license renewal for Morris Manor to operate as an Assisted Living Facility. DONE AND ENTERED this 19th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 19th day of May, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway 220 Tampa, Florida 33614 Wilhelmena Morris, Administrator Morris Manor Post Office box 309 Ocklawaha, Florida 32179 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact 1. Incorporated in Finding of Fact 1. 2. Incorporated in Finding of Fact 3. 3. Incorporated in Finding of Fact 4. 4. Incorporated in Finding of Fact 5. 5. Incorporated in Findings of Fact 4 and 6. 6. Incorporated in Finding of Fact 5. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Findings of Fact 7 and 8. COPIES FURNISHED: Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louis A. Vargas General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Julia P. Forrester, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301 Vernell Hadley Jackie B. Blevins Samuel Moore Douglas Adams Union Correctional Institution P. O. Box 221 Raiford, Florida 32083 Liz Cloud Chief Bureau of Administrative Code 1802 The Capitol Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedures Committee 120 Holland Building Tallahassee, Florida 32301
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.
Conclusions WHEREFORE, it is ORDERED and ADJUDGED, that the protests are dismissed with prejudice. DONE AND ORDERED this |2__ day of May _, 2010, in Tallahassee, Florida. Fr J> . BR 7 . yamjssioner of Education | COPIES FURNISHED TO: | Christopher McRae Robert Hosay | 2612 Centennial Place 100 E. College Ave., Suite 900 | Tallahassee, FL 32308 Tallahassee, FL 32301 | Clerk William F. Quattlebaum | Division of Administrative Hearings Administrative Law Judge | The DeSoto Building Division of Administrative Hearings | 1230 Apalachee Parkway The DeSoto Building | Tallahassee, FL 32399 1230 Apalachee Parkway Tallahassee, FL 32399-3060
