The Issue This matter arose when the claimant applied for in line of duty disability retirement and was advised of the denial of his application of in line of duty disability benefits. The claimant was advised of his right to a hearing pursuant to Chapter 120, Florida Statutes, and filed a Petition for a hearing to determine whether he was entitled to disability in line of duty benefits. The matter was referred to the Division of Administrative Hearings for hearing pursuant to Chapter 120, Florida Statutes.
Findings Of Fact The Petitioner, Pat Q. Trocci, is a 59 year old, white male, whose formal education is limited, and whose primary work experience outside military service in World War II was as a mechanic. The Petitioner was first injured on December 2, 1972, as hereinafter described. Between the date of his injury and 1974 he returned to work several times. During the period May 1973 to June 1974 the Petitioner returned to work on several occasions. The longest period which he worked continuously was six weeks, and during the entire period he worked 100 days. On December 2, 1972, Petitioner, Pat Q. Trocci, was installing a large hydraulic cylinder weighing approximately seven hundred (700) pounds in the back of a garbage truck. Trocci was attempting to push the cylinder into place when it shifted on the chain holding it, sheared the retaining bolt and struck Trocci in turn knocking him into other solid structures in the truck. Trocci, in fear, leaped from the truck and fell again striking himself on objects in the garage. Trocci continued to work, but later that evening began to experience pain. Trocci did not report for work for the next two days which were his regular days off. On the third day, he called in sick and went to the doctor. Dr. Talan administered a pain killing injection to Trocci and gave him oral pain killers. Trocci returned to his house, did some light work, such as watering the lawn, but later that evening experienced severe pain. Trocci was admitted to the hospital within several days suffering from back pain. The tentative diagnosis of the injury was a ruptured disc to Trocci's back with nerve root compression. Trocci was treated conservatively and released for bed rest at home. Thereafter, Trocci returned to work after a lengthy recuperation. Trocci was alternately at work and off work for the next year and a half. He would return to work and perform his duties, but eventually reinjure his back. From May 1973 until June 1974 Trocci worked 100 days of which the longest consecutive period on the job was six weeks. During this period, Trocci was in the care of Dr. Talan and thereafter Dr. Drucker. Trocci suffered primarily from his back ailment during that period. Dr. Drucker's deposition was presented in evidence and considered. Dr. Drucker, an orthopedic, had first seen Trocci in 1972 on referral from Dr. Talan. Dr. Drucker diagnosed Trocci's problem as am inflammation of the nerve root in the lower back. Dr. Drucker had treated Trocci until May 1974, but had last seem Trocci on February 1975. Trocci's medical history included Trocci's description of the accident. Dr. Drucker felt that the trauma was the result of Trocci's accident. Dr. Drucker stated that Trocci's condition was complicated by degenerative back disease, but that the disease was not the cause of Trocci's problems, but adversely affected his response to treatment and rehabilitation. Dr. Drucker indicated that Trocci's problems could be neurological rather than a nerve compression syndrome although he felt his diagnosis was accurate and the best he could make without the further tests to include a myelogram, which he had recommended but which to his knowledge Trocci had not had. Dr. Drucker stated his diagnosis was based on the fact Trocci had no neurological deficits which seemed to eliminate neurological damage. Dr. Drucker felt that Trocci's urological problems were due to extended bed rest, but that he would defer his opinion to the treating doctors. Dr. Drucker stated that in his opinion Trocci could not perform the duties he had performed prior to his injury because he could do no heavy lifting, could not bend, sit, or stand for long periods. Dr. Drucker did feel that Trocci could physically perform sedentary work, but was not aware of Trocci's educational background. Dr. Steinsnyder's report was introduced into evidence as Exhibit 1 and considered. Dr. Steinsnyder had first seem Trocci in August of 1974. At that time Trocci was hospitalized from August 15, 1974 until August 18, 1974 for back pain and bladder retention. Dr. Steinsnyder had treated Trocci from August 15, 1974 until February 12, 1975. The reports in Exhibit 1 indicate that Trocci had had a history of bladder retention during the period of Steinsnyder's treatment. Dr. Steinsnyder urged Trocci on January 22, 1975 to seek a fellow up on his nerve root compression with an orthopedic surgeon or neurelogic surgeon. Trocci was hospitalized on January 31, 1975 in Osteopathic General Hospital, North Miami Beach under Dr. Steinsnyder. Dr. Gonyaw was called in as a neurological consultant at that time. 10 Dr. Gonyaw had a myelogram performed on Trocci shortly after first seeing Trocci on February 2, 1975. Dr. Gonyaw expressed his opinion that at that date Trocci had reached maximum medical improvement. Based upon the results of the myelogram, Dr. Gonyaw eliminated nerve root compression resulting from a ruptured disc as a cause of Trocci's problems. This meant, in Dr. Gonyaw's opinion, that Trocci's problems were the result of a trauma of the spinal cord which had left Trocci with permanent damage. Dr. Gonyaw explained that such an injury is sometimes followed by a slow deterioration of the spinal cord which causes progressively severe symptoms. Dr. Gonyaw found that Trocci had impaired control of his legs, a continually worsening urological condition, and probably worsening neurological condition. Dr. Gonyaw felt that Trocci's real problem was neurological and not urological, but clearly indicated that in his condition Trocci could not perform any real work beyond some sort of hand piece work at his home. The deposition of Dr. Gilbert was also introduced into evidence and considered. Dr. Gilbert saw Trocci on August 22, 1973, at which time Trocci advised Dr. Gilbert of his earlier treatment by Drs. Drucker, Steinsynder, and Gonyaw. Dr. Gilbert stated that Trocci's symptoms were pains radiating from the lower back and buttocks into the legs and urinary retention and bladder infection. Dr. Gilbert's examination revealed that Trocci's movements were abnormally diminished, he exhibited bilateral sciatic tenderness, but that Trocci had had no sensory loss and his deep tendon reflexes were normal. Dr. Gilbert's medical opinion was that Trocci should not do any heavy lifting, no prolonged standing or sitting and no climbing. Because of his urological problems, Dr. Gilbert felt Trocci's ability to work is even more restricted. Dr. Gilbert's prognosis was one of continuing worsening of Trocci's condition, with the spread of infection eventually to his kidneys. The doctors involved have indicated in the fashion used in Workman's Compensation cases that the Petitioner is between 60 percent and 80 percent permanently partially disabled. They have all indicated that Trocci is not totally immobile and could do some light work with his hands. A listing of various job descriptions and positions was introduced by the Division as Exhibit 2 together with the affidavit of the head of the State's classification branch. The Hearing Officer finds having reviewed these descriptions and considered the obvious physical requirements of the various positions that the Petitioner could not perform any of these duties on a day in and day out basis based on the doctors' evaluations of his limitations.
Recommendation Based upon the preceding findings of fact and conclusions of law, it is recommended that the Petitioner receive disability in line of duty retirement benefits. DONE and ORDERED this 16th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Counsel for Respondent Albert E. Harum, Jr., Esquire Counsel for Petitioner
The Issue The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue to be determined is whether the infant, Adrian Olmstead (Adrian), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2018).
Findings Of Fact On November 28, 2018, Heenesys Tamayo gave birth to a baby boy, Adrian Olmstead, at AdventHealth Altamonte Springs. Adrian’s birth certificate indicates that he weighed five pounds, six ounces at birth, which equates to approximately 2,440 grams.
The Issue At issue in this proceeding is whether Brenay Janelle Jackson, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Petitioners, Bridget Jackson and Horace Jackson, are the parents and natural guardians of Brenay Janelle Jackson (Brenay), a minor. Brenay was born a live infant on January 11, 2002, at Palmetto General Hospital, a hospital located in Hialeah, Florida, and her birth weight was in excess of 2,500 grams. The physician providing obstetrical services during the birth of Brenay was Ignacio Alfredo Ramirez, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Brenay's presentation On August 15, 2002, following the filing of the claim for compensation, Brenay was examined by Michael S. Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. Dr. Duchowny reported the results of that neurology evaluation, as follows: HISTORY ACCORDING TO MR. & MRS. JACKSON: The parents began by explaining that Brenay is seven months old and has a "weak left arm." They indicated that Brenay's arm has been in this condition since birth and has "not improved very much." They believe that Brenay's left arm has limited mobility despite physical therapy provided on a routine basis. She additionally receives direct electrical stimulation to the muscles of the upper extremity. They noted that Brenay's "thumb turns in" and that she "cannot get her palm up." However, there is certainly a dexterity in the hand and she is able to use both hands in a cooperative fashion. There are more problems at the shoulder in that she is unable to raise her left arm as high as the right. Brenay underwent surgical reconstruction of the left brachial plexus three weeks ago. Surgery was performed by Dr. John Grossman and included a transplant of the left sural nerve. The procedure was uncomplicated. Brenay is also followed by Dr. Michael Tidwell in the Orthopedics department at Miami Children's Hospital. Brenay's right arm has full function and there are no problems with regard to her lower extremities. She rolled over at six months and is now sitting on her own. Her head and neck have a slight tilt to the right, but this does not compromise Brenay functionally. Brenay's hearing and vision are said to be adequate and there have been no changes in her appetite. She sleeps through the night. Brenay is on no intercurrent medications. There has been no recent exposure to toxic or infectious agents and no significant postnatal injuries. FAMILY HISTORY: Brenay's mother and father are both 36 years old. Two brothers, ages eight and seven are healthy. No family members have paralysis, mental retardation, epilepsy or developmental delay. PRE and PERINATAL HISTORY: Brenay was born at term at Palmetto General Hospital. She weighed 8-pounds, 15-ounces and was delivered vaginally. She remained in the hospital for two days. The parents stated that she breathed well at birth and did not have postnatal jaundice. Brenay's immunizations have been proceeding on schedule and she has no known drug allergies. Brenay's PHYSICAL EXAMINATION reveals an alert and playful seven month-old, well- developed, well-nourished black female. Brenay weighs 18-pounds. Her skin is warm and moist and there are no neurocataneous stigmata. There are no digital, skeletal, or palmar abnormalities and no dysmorphic features. The cranial contour appears normal and the head circumference measures 43.4 cm, placing Brenay in the 60th percentile for age-matched controls. The anterior and posterior fontanelles are both patent and flat. There are no significant facial asymmetries. Tongue thrusting is noted intermittently and there is some drooling. The head has a very slight tilt to the right side. The neck is supple without masses, thyromegaly or adenopathy, and the cardiovascular, respiratory and abdominal examinations are normal. There are healed linear scars over the left calf and left lower lateral cervical region. Brenay's NEUROLOGIC EXAMINATION reveals an alert infant sitting in her mother's lap. She is extremely engaging and smiles frequently. Brenay makes frequent cooing noises and appears extremely interested in objects and people in her immediate surround. Her cranial nerve examination reveals full visual fields to confrontation testing. The extraocular eye movements are full and conjugate and the pupils are 3 mm and briskly reactive to direct and consensually presented light. There is no ptosis. Fundoscopic examination reveals appropriately demarcated disc margins without pallor and no evidence of retinopathy. The facial movements are symmetric and the tongue moves well. The uvula is midline. Motor examination reveals a functional asymmetry of the upper extremities. Brenay tends to move her right arm much more actively, and in contrast, the left shoulder mobility is diminished. There are no fixed contractures. The shoulder is held in a position of mild internal rotation and adduction. The elbow is flexed and the wrist is pronated. There is full range of motion at the wrist and finger joints and Brenay demonstrates good individual finger dexterity. There were no asymmetries of motor bulk in the forearm compartments, but the arm showed a slightly greater ridging over the lateral surface on the left. There is no asymmetry of the dorsal musculature and the shape and slope of the shoulders appeared symmetric and normal. I was unable to accurately assess sensory function in the upper extremities. The deep tendon reflexes are 2+ at the knees and ankles and 1+ to 2+ in the right biceps and brachial radialis. The right triceps is trace. In contrast, the left biceps and brachial radialis are trace and there is no evidence of a left triceps jerk. Brenay is able to sit with good head control and has a good grasping bilaterally. There are no pathologic reflexes. She stands with support. The NEUROVASCULAR EXAMINATION reveals no cervical, cranial or ocular bruits, and no temperature or pulse asymmetries. Brenay is able to grasp objects with either hand, and she demonstrates reasonably well-developed pincer grasp with both the right and left fingers. She does not yet transfer. IN SUMMARY, Brenay's neurologic examination reveals evidence of a mild left Erb's palsy, affecting the fifth, sixth, and seventh cervical roots. The lower brachial plexus appears preserved, and there are no other neurologic abnormalities. Brenay's Erb's palsy appears to be improving slightly, but it is as yet too early to know how well she will do subsequent to her surgical repair. In contrast, the neurologic examination demonstrates no evidence of mental or motor impairment referable to the central nervous system. An Erb's palsy, such as that evidenced by Brenay, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus,2 and does not involve the brain or spinal cord.3 Moreover, the impairment Brenay suffers is mild, as opposed to substantial, and there is no evidence of mental impairment. Consequently, while Brenay may have suffered a mechanical injury, permanent in nature (to her left brachial plexus) during the course of birth, she does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to an award of attorney's fees pursuant to Section 57.111, Florida Statutes, and, if that be the case what amount of attorney's fees as well as costs is appropriate.
Findings Of Fact The Petitioner was charged by the Administrative Complaint in the underlying case with violating the Florida Statutes referenced below by transferring its business license without informing the Board and for employing a massage therapist who was unlicensed. These charges arose because of an inspection made by an Agency investigator Edward W. Vollerston, in March of 1997. Mr. Vollerston discovered that the license for the establishment had been renewed but the only therapist working at the establishment was Roger Twitchell, the Petitioner's son. Mr. Twitchell was discovered to have had an expired personal license. Roger Twitchell admitted working as a massage therapist at the establishment and that he was currently taking appointments. He admitted to the investigator that he was the only licensee working on the premises. The Petitioner's owner, Donna Anderson-Twitchell admitted that she left the establishment and allowed Roger Twitchell to see patients at the Muscle Therapy Clinic. Roger Twitchell was the only massage therapist practicing on the premises known as the Muscle Therapy Clinic. Mr. Vollerston believed as a result of his investigation that the owner was Donna Anderson-Twitchell and that Roger Twitchell did not own the establishment. The establishment license appears to have been renewed without any indication of a change in ownership. The microfilm copy of the check and the renewal slip showed no indication of changes of ownership on either document, although the check for the renewal was written by Roger Twitchell. It is impossible to determine whether he wrote the check as a new owner or whether he wrote the check on behalf of Donna Anderson-Twitchell as the owner. The fact that the establishment license was renewed showed an intention to Mr. Vollerston that the establishment was to be continued under the name of Donna Anderson-Twitchell and raised no question in his mind as to a change of ownership. There is no indication that Ms. Anderson-Twitchell let her license lapse. Indeed the licensure computer screen maintained by the Department during the investigation indicated that Donna Anderson-Twitchell was still the owner of the establishment. Even after the investigation began there was no indication that an establishment license in the name of Roger Twitchell as owner had been applied for. Later Donna Anderson-Twitchell stated that she no longer owned the establishment and that Roger Twitchell her son owned it. In any event, the documentation available to him led the investigator to believe that Ms. Anderson-Twitchell was still the owner of the Muscle Therapy Clinic. He believed that Roger Twitchell was working there as an unlicensed therapist and was the only therapist working there. The case was later transferred from the investigation office to the legal department. Susan Bodell, Esquire, reviewed the case and observed that there had been a closing order drafted by Laura Gaffney, Esquire, her predecessor, to be presented to the probable cause panel. Ms. Bodell differed with that position, however, and believed a violation had occurred and therefore caused an administrative complaint to be drafted. Ms. Bodell found, based partly on the investigative file, that it appeared that ownership had been transferred to another person without the Board of Massage being notified in purported violation of Section 480.043(7), Florida Statutes, as well as that the establishment appeared to be employing a person as a massage therapist who had no active license, in purported violation of Section 480.047(1)(c), Florida Statutes. Ms. Bodell took that case and facts as she knew them to the probable cause panel and explained the situation. The probable cause panel agreed with her and adopted the proposed administrative complaint rather than the previously prepared closing order prepared by Ms. Gaffney. The probable cause panel chairman signed a memorandum which indicated that probable cause had been found for both counts in the Administrative Complaint. After the finding of probable cause an Administrative Complaint was served on the Muscle Therapy Clinic. During the process of the that litigation, counsel for the Agency offered to settle the case. Ms. Alsobrook, the Petitioner's counsel wrote a letter dated September 4, 1998, offering to waive any claim to attorney's fees and costs if the case was dismissed by the Board of Massage Therapy and from the Division of Administrative Hearings. The Agency indeed closed the case as a result of those settlement discussions. The Petitioner now claims that because the final order of dismissal was not obtained within a two-week period, that there was no agreement to waive attorney's fees and therefore the Petitioner is now able to claim attorney's fees and costs in this proceeding. Be that as it may, after the case against Muscle Therapy Clinic, the underlying case was dismissed, the Petitioner filed the subject attorney's fee petition. Mr. Jim Spalla, the Respondent's expert on attorney's fees is qualified to testify to attorney's fees matters. He opines that Ms. Alsobrook's hourly rate of $150 an hour is reasonable. He assumed that she charged that rate per hour and not something lower because he had no retainer agreement to evaluate. He did opine that her fees were excessive in billing for research to litigate a motion filed by the Respondent in September of 1999. The Petitioner's counsel almost billed more for that motion in the month of September 1999, than she did for the total underlying case. The Petitioner's counsel did not allow Mr. Spalla to review her file to see if it corresponded to her billing and thus he used the Agency's file to determine what pleadings had been filed in the case. The Petitioner's attorney's fee expert, Jon Pellett, Esquire, testified that the fees were reasonable although he did not review the entire file either. He based his opinion on selected pleadings sent to him by Ms. Alsobrook. He saw no retainer agreement concerning the $150 per hour rate. He saw no copies of cancelled checks. Ms. Anderson-Twitchell was under a subpoena to bring all documentation concerning the case but did not bring any cancelled checks or bank statements showing payment to the hearing. It is found based upon the testimony of both attorney's fee experts that the hourly rate is a reasonable one. The undersigned, however, cannot understand how the total figure for fees and costs in excess of $20,000 can be reasonable given the very simple nature of the issues presented in the underlying disciplinary case and in this attorney's fee petition case (assuming that attorney's fees may be claimed for the attorney services and costs involved in litigating the attorney's fees claim). The rather summary nature of the documentary support for the attorney's fees and costs claimed and the testimony of Mr. Spalla, do not provide the undersigned with a sufficient understanding of a reasonable basis for the fees and costs claimed in such simple litigation engenders substantial doubt as to the reasonableness thereof. In any event, because of the result concluded below as to the issue of "substantial justification" the resolution of the question of the reasonableness of attorney's fees and costs need not be reached.
The Issue The issue in this case is the amount of attorneys' fees to be awarded to Petitioner's Counsel pursuant to the Mandate of the Third District Court of Appeal entered on Case No. 3D11- 1621, as well as the Order in that case granting Appellee's Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(b) and § 57.105, Fla. Stat.
Findings Of Fact On November 22, 2010, Petitioner filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. On May 20, 2011, a Summary Final Order of Dismissal was entered dismissing Petitioner’s Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq., finding that the claim was not compensable and was barred by section 766.313. On June 16, 2011, the University of Miami, d/b/a University of Miami School of Medicine appealed the final order to the Third District Court of Appeal. On June 20, 2011, Leslie Caroline McLeod, M.D.; Nathalie Dauphine McKenzie, M.D.; Marion Frederic Colas-Lacombe, M.D.; Jerry M. Giles, M.D.; Hugo Gonzalez-Quintero, M.D.; and the Public Health Trust of Miami-Dade County, d/b/a Jackson Memorial Hospital filed a Notice of Joinder of the Notice of Appeal of the Final Administrative Action. The defendants in the medical practice action filed a Motion for Stay Pending Appeal in the circuit court. By letter dated June 22, 2011, Petitioner sent a letter to the defendants in the medical malpractice action, who were also the appellants in the appeal. The letter advised that Petitioner would be filing motions for attorneys’ fees if the defendant/appellants did not withdraw the notice of appeal, joinder of appeal, and motion for stay. Copies of the motions for fees, which Petitioner intended to file in the Third District Court of Appeal and the circuit court accompanied the letter. The letter did not mention fees for the administrative action which was on appeal. On January 3, 2012, Petitioner filed Appellee’s Motion for Attorneys' Fees as a Sanction Pursuant to Fla. R. App. P. 9.410(B) and § 57.105, Fla. Stat., seeking attorneys’ fees as a sanction against Appellants/Intervenors. The Third District Court of Appeal granted the motion and remanded the case to the Division of Administrative Hearings to conduct a hearing on the amount of fees to be awarded. On February 4, 2013, the final hearing on the fees awarded by the Third District Court of Appeal commenced. On the same date, Petitioner filed Petitioner’s Motion for Attorneys’ Fees and Costs Pursuant to Florida Statutes § 57.105 with the Division of Administrative Hearings. The motion seeks attorneys’ fees for the administrative action on Petitioner’s claim for benefits under the plan administered by the Florida Birth-Related Neurological Injury Compensation Association. A Final Order on Fees was entered on May 23, 2013, which determined the amount of attorneys’ fees to be awarded to Petitioner pursuant to the order of the Third District Court of Appeal. Included in the amount awarded were fees associated with the Notice of Appeal and the Motion for Stay Pending Appeal.
The Issue Whether the Petitioner is entitled to reimbursement for medical treatments received by his wife for 4 manipulation treatments received in 1983?
Findings Of Fact At all times pertinent hereto, the Petitioner was an insured employee under the State of Florida Employees' Group Health Insurance Plan, as provided in Section 110.123, Florida Statutes. Nora Gomez, the Petitioner's wife, is entitled to participate in the Plan as an eligible dependent. Mrs. Gomez first visited David L. Hartz, a chiropractic physician on August 2, 1983. Dr. Hartz's office is located at 1610 West Plaza Drive, Tallahassee, Florida. Dr. Hartz treated Mrs. Gomez primarily for upper back and neck pain. Between August 2, 1983, and December 14, 1983, Dr. Hartz treated Mrs. Gomez 33 times. Initially, Mrs. Gomez received chiropractic manipulations 3 times per week. Visits were subsequently reduced to 2 times a week and from November 1, 1983, until December 14, 1983, when treatments stopped, her treatments were reduced to once a week. Twenty-nine of the 33 visits received by Mrs. Gomez have been paid by the Respondent. The Respondent is not seeking to be reimbursed for payments made to the Petitioner in excess of 26. The Respondent has refused to pay for 4 of the visits. The Petitioner was charged $18.00 per visit for Mrs. Gomez's treatments. The Respondent has refused to pay the Petitioner a total of $72.00 (4 visits x $18.00). Mrs. Gomez received her 26th treatment on November 1, 1983. Mrs. Gomez's condition at that time was, according to Dr. Hartz, as follows: I show that she had improved considerably over her initial findings but she still had some persistent pain in her neck and upper back and some inflammation, some nerve roots in her neck and some persistent muscle weakness. Deposition testimony of Dr. Hartz, page 15, lines 18-21. Dr. Hartz also indicated that he believed that Mrs. Gomez "could still improve some past that point." Deposition testimony of Dr. Hartz, page 11, lines 12-13. Based upon Dr. Hartz's testimony, Mrs. Gomez's problem was of a type which could be eventually treated on a "periodic supportive type treatment, on a periodic nature." Dr. Hartz was trying to treat Mrs. Gomez's problem, however, during 1983 to a point where she could receive such treatment. She did not, however, continue the treatments long enough to reach that point because of the Respondent's position that only 26 treatments would be reimbursed by the Petitioner's insurance. The Respondent reimburses for rehabilitative therapy but not for maintenance therapy under the State Plan. The Respondent determined that Mrs. Gomez's treatments after November 1, 1983 (her 26th visit) were for maintenance and not rehabilitative therapy because the Respondent determined that her condition stabilized. Therefore, the Respondent refused to make further payments. Dr. Hartz did indicate that Mrs. Gomez reached a point where she had persistent pain that would feel better for a while and then would return, and therefore, he "either had a choice to extend her treatment and let her hurt or treat her and keep her feeling as good as possible." This statement and the rest of Dr. Hartz's testimony is not sufficient to conclude, however, that Mrs. Gomez stabilized as of November 1, 1983, and therefore was receiving maintenance treatment only after that date. Dr. Hartz did not, however, based upon all his testimony, believe that Mrs. Gomez had reached a point during her treatment in 1983 where her treatment was in the nature of maintenance only. Dr. Hartz was still treating Mrs. Gomez through her last visit in 1983 in an effort to correct her condition sufficiently for her to receive only maintenance treatments. The 4 visits in 1983 for which reimbursement has not been made, were part of Dr. Hartz's effort to get Mrs. Gomez to a point where she would only need maintenance type treatment. The visits were in the nature of rehabilitative therapy, for which the Petitioner is entitled to reimbursement.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent reimburse the Petitioner $72.00 for the 1983 treatments received by the Petitioner's wife for which reimbursement has been refused. DONE AND RECOMMENDED this 3rd day of December, 1986, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2595 The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." Paragraph Number of Petitioner's Proposed Findings of Fact: Accepted in RO 1-2. Accepted in RO 3-4. Accepted in RO 5. Accepted in RO 6. Accepted in RO 6-7. Accepted in RO 7. Accepted in RO 9-10. Accepted in RO 11 and 15. The quotation of Dr. Hartz's testimony contained in the last sentence of this proposed findings of fact is taken slightly out of context. See RO 15. Accepted in RO 14. This proposed finding of fact is rejected as contrary to the weight of the evidence. See RO 15-16. COPIES FURNISHED: Michael J. Gomez 2404 Harbor Drive Tallahassee, Florida 32303 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gilda Lambert, Secretary 435 Carlton Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent should grant Petitioner's request for licensure by endorsement as a physical therapist pursuant to Sections 486.031 or 486.081, Florida Statutes (1997), and Florida Administrative Code Rule 64B17- (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact It is uncontroverted that Petitioner is 48 years old and of good moral character within the meaning of Section 486.031(1) and (2). Petitioner has been a resident of Florida for 34 years. He is licensed in Florida as a chiropractor and is a graduate of a four-year degree program at Palmer College of Chiropractic ("Palmer College"). Petitioner is board certified as a chiropractor orthopedist and as a chiropractic neurologist. Both board certifications required additional training after graduation from Palmer College. In June 1995, Petitioner attended the University of Health Sciences Antigua School of Allied Health Professionals and received a Bachelor of Science in Physical Therapy from that institution in August 1996. Petitioner traveled to the University of Antigua eight times in two years for education sessions. Each session lasted approximately two weeks. In addition to the hours Petitioner spent at the University of Antigua, Petitioner spent approximately 1,200 hours during an eight-month period at a physical therapy facility associated with the hospital in Antigua. In addition, Petitioner spent approximately 650 hours interning at the Spinal Rehabilitation Institute in Titusville, Florida. The University of Antigua required Petitioner to complete the 1,200 hours at the physical therapy facility and the 650 hours as an intern as part of its educational program. After obtaining a degree in physical therapy from the University of Antigua, Petitioner applied to the State of Colorado to take an examination prepared under the auspices of Profession Examination Services ("PES"). Colorado evaluated Petitioner's education and allowed Petitioner to take the PES exam. Petitioner passed the PES exam and has been licensed as a physical therapist in Colorado since April 11, 1997. On February 9, 1999, Petitioner applied to the State of Florida for a license as a physical therapist. Petitioner received and relied upon application materials provided by Respondent. In particular, Petitioner utilized Respondent's "List of Currently Qualified Credentialing Agencies" to select the International Education Research Foundation (the "Foundation") to evaluate Petitioner's foreign education. The Foundation is the appropriate agency identified by the Board, within the meaning of Section 486.031(3)(b), to determine whether Petitioner has educational credentials equivalent to those required for the educational preparation of physical therapists in the United States. The Foundation gave Petitioner credit for 60 semester hours of physical therapy education including six clinical hours. The Foundation determined that Petitioner has the U.S. equivalent of a Bachelor of Science in Physical Therapy (non-traditional program awarded by nonaccredited colleges and universities). The Foundation prepared its evaluation: . . . in accordance with guidelines developed by several state licensing boards and was completed in close collaboration with a physical therapy consultant. Records from the institution attended showing coursework completed, hours of study and grades earned, were used as the basis for this report. Joint Exhibit 1 at 399. The Board denied Petitioner's application for the following reasons: The applicant does not meet the requirements of Sections 486.031(3)(b) or 486.081(1) . . . and Rules 64B17-3.001(3) and (4) or 64B17- 3.003 . . . in that the applicant does not possess credentials that are deemed equivalent to a bachelor's degree in physical therapy in the United States. At best the applicant's training is a six week lecture series that would constitute a continuing education course. It is not the length and content of a CAPTE approved bachelors or masters in science program in physical therapy that would be the bulk of the final year of training. Denial Order at 1. The actual basis for Respondent's denial has little to do with factual disputes concerning Petitioner's educational hours. As Respondent admits in its PRO: While there may be some factual disputes about Petitioner's educational hours, both in modules and clinical time, these are not really material facts for the [ALJ] to resolve. The real issue is the legal interpretation of . . . Sections 486.031 and 486.081. . . . Respondent's PRO at 5. The findings in paragraphs 12-15 of Respondent's PRO are not material to the real issue concerning the interpretation of Sections 486.031 and 486.081. Respondent does not approve the physical therapy program at the University of Antigua for the educational preparation of physical therapists within the meaning of Section 486.031(3)(a). The record does not show whether the United States Department of Education approves the program. Petitioner has received a diploma from a program in a foreign country within the meaning of Section 486.031(3)(b). The Foundation, as the appropriate agency identified by the Board, has determined that Petitioner possesses educational credentials required for the educational preparation of physical therapists in this country. Petitioner passed the Colorado PES exam in 1997. Petitioner passed a national examination approved by the Board to determine Petitioner's fitness to practice as a physical therapist within the meaning of Section 486.031(3)(a) and (b). Petitioner is entitled to licensure in Florida without examination, pursuant to Section 486.031(3)(c), as provided in Section 486.081. Petitioner passed the PES exam in 1997. The written examination taken by Petitioner for licensure in Colorado was an examination prepared under the auspices of the Professional Examination Services within the meaning of Rule 64B17-3.003. Respondent has long construed applicable Florida Statutes to require an applicant for licensure without examination to pass the requisite national examination and to meet those educational requirements approved by the Commission on Accreditation for Physical Therapy ("CAPTE") in accordance with the requirements of Section 486.031(3)(a). Respondent's legal interpretation of applicable statutes and rules is a legal interpretation rather than a matter within the ambit of agency expertise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request for a license in Florida as a physical therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and 486.081. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health Division of Medical Quality Assurance Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ann Cocheu, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775
Findings Of Fact Dr. Norman S. Bateh is the Petitioner in this matter and is an unsuccessful candidate on the optometry (theory and practice) licensing examination administered by the Respondent Board of Optometry on July 23 through 25, 1983. The development of, an examination by this Board reflects careful planning and consideration to ensure it fairly tests an applicant's knowledge of the subject matter. Prior to the preparation of a particular examination, a large pool of questions is developed from numerous professional and academic sources. After the examination is given, an analysis of it is conducted to see how the questions are received by the examinees. Examinees are given the opportunity to contest particular questions after the examination has been administered. Based on the Board's analysis of the test results, any question that was answered correctly by less than 58 percent of the examinees, in addition to those questions contested by the examinees are sent for verification to the Board's consultants, in this case Drs. Pappas and Chrycy. If, upon review by the consultants, it appears a question was incorrectly graded, ambiguous, unclear, or unfair; or if, in the consultant's opinion, there is any sort of problem with the question, all examinees are given credit for it. Passing grade on the 100-question, multiple-choice examination was 70 percent. Petitioner was initially awarded a grade of 66, but on review, at his request, of several of the questions which were graded as wrong, he was awarded two more points, which brings his grade to 68, still two points below passing. He was ranked 98th out of 103 examinees. Petitioner challenges four questions at this hearing as being either improperly graded or invalid because the question is incapable of a correct answer. These questions are numbered 8, 31, 73 and 78 and will be discussed individually, infra. If Petitioner's answer is determined to be correct, he will be awarded one point credit for that question. If any question is determined to be invalid for any reason, Petitioner will be awarded one point credit for that question. Question 8 on the examination read: Intraocular lens placement after cateract extraction results in an image magnification of approximately: 0% 4% 9% D. 25% Petitioner's answer on the examination was "C. 9%." The Board's correct answer was "B. 4%." Petitioner presented the testimony of an ophthalmologist, Dr. Schnauss, who has performed the operation to implant intraocular lenses between 500 and 600 times. As an expert who has used the lenses in his practice frequently and as consultant to one .of the major manufacturers of these lenses, e states unequivocally the degree of magnification is less than 1 percent, but not 0 percent. The further away from the location of the original lens of the eye, the greater the magnification. Since the lens implant is close to the plane of the original eye lens, there would be little magnification. Therefore, notwithstanding the conclusions of the Respondent's experts, Dr. Pappas and Dr. Chrycy, both consultants to the Board of Optometry, who cite Duane, Clinical Ophthalmology, Vol. I, as authority, no answer listed as an option on the examination is clinically correct. However, 52 percent of the candidates who took this particular examination gave the Board's correct answer. Question 31 on the examination read: Which of the following would you consider a positive scotoma: the blind spot Evan's angia-scotomas Seidel's scotoma muscae volitantes Petitioner's answer on the examination was "C. Seidel's scotoma." The Board's correct answer was "D. muscae volitantes." A scotoma is a blind spot in the patient's vision. Positive scotomas are those which are noticeable by the patient as he sees. Negative scotomas are not noticeable to the patient, but show up under test. A Seidel's scotoma, which is an extension of a blind spot, would not be a positive scotoma because the patient would not see it in the visual field. The Board's preferred answer, muscae volitantes, was attacked by Petitioner's experts as being inaccurate since they are bits of floating protein substance in the eye which, .though they are opaque and create a block to vision where they exist, are not true blind spots because they are not a defective area in the eye and they move. They are blind only because they temporarily block vision, not because they are a defect in the eye. Therefore, while muscae volitantes are, technically, positive scotomas where they exist, the question is inartfully drawn, vague and confusing, a conclusion supported by the fact that only 28 percent of the candidates got the correct answer. This low figure, to Mr. Gustafson, Respondent's test statistician, is insignificant. However, a question so confusing that only 29 of 103 examinees get it right and which is capable of such substantial meritorious argument on both sides is truly vague. Question 73 on the examination read: A keratoconus patient with "K" readings of 46.00 x 52.00 can best be fitted with which lens: a spherical firm lens a soft lens with overglasses a bitoric gas permeable lens with light touch on the cone a bitoric gas permeable lens with heavy touch on the cone Though Petitioner testified his answer was "D," and he defended it at the hearing, his answer on the examination was "A." The Board's correct answer was "C." The prime consideration in this question is the touch of the lens, not the issue of hard or soft, or gas permeability. The most current edition of Mandell's textbook and the majority of optometrists today feel that the best choice of lens for fitting a keratoconus patient is the bitoric gas permeable lens with light touch. The opinion of the "majority of optometrists" referred to by Dr. Chrycy was garnered in discussions with a personal friend who, as a Fellow of the American College of Optometry, had recently attended a meeting of that body where this exact subject was, discussed and that opinion rendered. Petitioner cited an earlier edition of Mandell's work to urge the position that a firm lens is required to contain the protrusion of the dark part of the eye that comes along with keratoconus. Later opinion, however, changes that position which is now no longer considered the better treatment. Petitioner also challenged the "K" readings in the question as being unreliable. Unfortunately by doing so, reasonable asthat might be in the practice of optometry, he read into the question a factor that was neither present nor intended by the examiners. The "1(" readings in this question were agiven quantity. Petitioner's treating them as a "trick" was an unfortunate mistake. It is also pertinent to note that 71 of the 103 examinees (69 percent) chose the correct answer to this question. Question 78 on the examination, the fourth and last one challenged by Petitioner at the hearing, reads: The extraocular muscle most frequently involved in extropia is the medial rectus superior rectus lateral rectus superior oblique Petitioner's answer was "C. lateral rectus." The Board's correct answer was "A. medial rectus." The term "extropia" means a turning outward of the eye. The term "extraocular" means outside the eye. The medial rectus muscle is the muscle between the eye and the nose which pulls toward the center of the face. The lateral rectus muscle is that on the outward part of the eye which pulls toward the ear. In a normal individual, the muscles, of equal strength, balance each other and the eye looks forward unless the person involved moves it. Extropia is caused when there is an imbalance of the muscles, either by a weakening of the medial rectus, which allows the normallateral rectus to overpower it, or by an unnatural strengthening of the lateral rectus which then overpowers the normal medial rectus. By far the greater weight of optometric opinion, based on observation and testing, reveals that the most frequent" cause of this condition is the weakening ofthe medial rectus, leaving the lateral rectus normal. Consequently, the correct answer is not lateral rectus as claimed by Petitioner, but the medial rectus as stated by the Board,notwithstanding even the Board's expert, witness testified there is no definitive authority to support the Board's choice. In this case, 64 percent of the examinees chose the correct answer.
Recommendation Based on the foregoing, it is RECOMMENDED: That a final order be entered finding that Petitioner should be awarded one additional point credit for Question 31 and that he, nonetheless, failed to achieve a passing score on the July, 1982, optometry examination. RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983. COPIES FURNISHED: Abraham I. Bateh, Esq. 2124 Park Street Jacksonville, Florida 32204 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Rochep Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Mildred Gardner Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
