The Issue Whether the Respondent (the Agency) may assess costs against the Employer, who is denominated the Petitioner in the case, for rehabilitative temporary total disability benefits for an employee who was injured on the job, returned to work for approximately three years, and then was discharged for cause unrelated to his injury?
Findings Of Fact James Rutan (Rutan) was hired by Piedmont Airlines of Jacksonville on June 4, 1985. The employer changed its name to U.S. Airways (US Air) in April 1997. Rutan’s position was a fleet service employee. In this capacity, his duties were varied, but among his duties were loading and unloading baggage and freight from aircraft. On September 25, 1993, Rutan was loading baggage, picked up a heavy bag, pulled it across his chest, and injured his shoulder. He went first to the emergency room, then to Dr. Depadua, and finally to Dr. Fady Bahri, who determined that Rutan had torn his rotator cuff. Dr. Bahri operated on Rutan’s shoulder in November 1993, and Rutan returned to light duty with US Air in January 1994. Rutan continued in light-duty status until March 15, 1994. Two contradictory documents were introduced from Dr. Bahri’s office regarding Rutan’s status as of March 15, 1994. One document, sent to the workman’s’ compensation insurer, indicates that Dr. Bahri determined Rutan had reached Maximum Medical Improvement (MMI) with a 12 percent impairment rating and physical restrictions of light work, lifting a maximum of 20 pounds, lifting and carry objects weighing up to ten pounds, and no repetitive overhead activities. However, the other document, attached to Dr. Bahri’s deposition, from the US Air file indicates that Rutan was cleared to return to “full duty.” The doctor was unable to explain in his deposition the apparent contradiction in the two determinations. Rutan testified at hearing concerning his injury and its effect upon his work. Rutan loaded and unloaded baggage and freight from aircraft, and that to do so, he crawled into the cargo bay of the aircraft several times each day and either stacked bags or boxes, or threw bags or boxes to the person stacking them. This caused him pain, and he took quantities of over-the-counter and prescription pain relievers to cope with the pain and continue working. He did not complain to his supervisor(s) about discomfort from performing his duties or seek an accommodation for his handicap. Rutan's supervisor, Lynn Moore, testified regarding Rutan’s job performance. She was his supervisor for approximately two months. She observed his work during that time, and Rutan performed full duty, lifting everything he needed to lift. During the period Moore was Rutan’s supervisor, Rutan did not make any complaints of pain or complain of an inability to do the work. Rutan did not make any requests for transfers, or make any requests for accommodation for a handicap pursuant to the Americans with Disabilities Act. In the first week of April 1997, US Air terminated Rutan for cause. Although the details were not discussed, the discharge was not related to his previously injury or its impact upon his work. Ms. Moore was familiar with the records of Rutan’s employment, and these records reflected Rutan missed a total of 90 days of work due to the injury and surgery. The records further reflect he returned to full duty not later than October 16, 1996, and worked in that capacity until his discharge. Rutan worked for approximately six months following October 16, 1996, without requesting an accommodation or other relief. Ms. Moore testified regarding the positions available at US Air for persons with Rutan’s experience. There were positions available that would have accommodated Rutan’s limitations.2/ Subsequent to his discharge, Rutan had a second surgery on his shoulder on May 11, 1998, that related back to his original injury. Dr. Bahri made another determination of MMI following this surgery on October 1, 1998. Dr. Bahri again determined that there was a 12 percent impairment, but stated that Rutan was able to do medium level work restricted to occasional lifting 21-50 pounds, frequent lifting of 11-20 pounds, and constant lifting of ten pounds with no overhead activities with the right arm or shoulder. These limitations are less restrictive, and permit Rutan to lift more than the limitations originally imposed after the 1993 surgery. At the time of the second surgery, Rutan was a full time student pursuing the profession for which he was "retrained." Subsequent to his second surgery and approximately one year after his discharge for cause, Rutan filed a DWC-23 on April 14, 1998 seeking rehabilitation temporary total disability benefits pursuant to Chapter 440, Florida Statutes. The Agency interviewed Rutan, and was aware of his work history, injury, and discharge for cause unrelated to his injury. Because he had been terminated before his presented his application, and was already approved for tuition benefits and enrolled in college, Rutan’s application was handled differently than a person who was employed by an employer. The employer was not required to sign the DWC-23, and Rutan was sent directly to Mark W. Toigo for vocational evaluation. Mr. Toigo’s evaluation of Rutan’s potential for finding employment without retraining was consistent with the standards for such evaluations and the Agency’s rules. Tiogo concluded that Rutan needed to be retrained. His conclusion was based upon two primary determinations: his determination Rutan physically could not perform the work required to work in his old job which was based upon the documentation provided to the workman's compensation insurer, and his determination that Rutan could not make the amount of money he made in his old job without retraining. The first of these determinations is not supported by the facts presented at hearing. There is documentation that Rutan was returned to full duty, which implicitly is without restriction or limitation. If we assume that Rutan was not returned to full duty by Dr. Bahri after his first surgery, the facts reveal Rutan had performed the duties of his prior job under restrictions that were more stringent than those imposed after his second surgery without complaint or requests for accommodation. Mr. Tiogo did not consider the impact of Rutan’s termination for cause because the Agency’s position was Rutan could not physically perform the duties of his employment; therefore, the job was not and had never been suitable. Ms. Moore and Mr. Richard Hall testified that US Air had positions available in the same pay range as Rutan’s that did not require lifting of the type precluded by Dr. Bahri. Had Rutan not been discharged for cause and had he requested an accommodation due to his physical limitations, US Air would have been legally required to and able to accommodate his needs.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its Final Order dismissing the administrative complaint seeking reimbursement for rehabilitation temporary total disability benefits from the Employer/Petitioner. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001.
The Issue Whether Petitioner is entitled to training and education at Respondent’s expense in order to return him to suitable gainful employment.
Findings Of Fact Respondent, the Department of Financial Services, Division of Workers’ Compensation (Respondent or Department), is the agency of the state of Florida charged with administration of medical care coordination and reemployment services that are necessary to assist employees injured in the workplace to return to suitable gainful employment. Petitioner, Nathan Lavon Florence, is a 37-year-old man residing in Pensacola, Florida. Petitioner received his Graduation Equivalent Diploma in 2001, and held a number of different jobs between 2001 and 2007, including line cook, sales associate, construction laborer, and warehouse worker. Petitioner began an electrician apprenticeship program in 2007, which he completed in May 2012. Petitioner began working for Barnes Electrical Company, Inc. (Barnes), as an electrician’s helper in August 2013. Barnes paid Petitioner biweekly at the rate of $13 per hour for regular work and $19.50 per hour for overtime. On July 16, 2014, Petitioner suffered an on-the-job injury in which his right hand was crushed by a light pole. A workers’ compensation claim (the underlying claim) was filed with Amerisure Insurance Companies, Barnes’ workers’ compensation carrier. Petitioner’s authorized treating physician was Dr. Steven Kronlage. On October 22, 2015, following three surgeries and a period of treatment, Dr. Kronlage determined Petitioner had attained maximum medical improvement and referred Petitioner for pain management. Dr. Kronlage assigned Petitioner a permanent impairment rating of 15 percent and assigned the following work restrictions: medium-level work, no use of power tools with right hand, and no lifting more than 20 pounds with right hand. According to the U.S. Department of Labor, medium-level work limits lifting to a maximum of 50 pounds. Barnes was unable to offer Petitioner employment that met his work restrictions. The parties to the underlying claim entered into a joint stipulation on January 14, 2016. The joint stipulation “resolv[ed] all issues” and provided, in pertinent part, as follows: The parties agree that the Claimant’s average weekly wage shall be amended upward by $7.59 resulting in a new average weekly wage of $386.09. The Employer/Carrier shall recalculate Claimant’s past indemnity benefits utilizing the average weekly wage of $386.09 and shall pay past due benefits utilizing this average weekly wage plus penalties and interest. Petitioner was represented by counsel in the underlying claim. On November 8, 2015, Petitioner applied to the Department for a vocational assessment to determine the best way to return Petitioner to suitable gainful employment. On November 19, 2015, the Department issued Petitioner a decision letter determining that the best way to return Petitioner to suitable gainful employment was through job placement assistance. Cynthia Baker was the vocational rehabilitation consultant assigned to Petitioner’s case. Ms. Baker based her recommendation for job placement assistance on Petitioner’s educational background, his pre-injury average weekly wage (AWW), his work restrictions, and the “transferable skills” Petitioner could bring to the job market (e.g., knowledge of the English language; knowledge of materials, methods, and tools used in construction and repair of housing; and knowledge of machines and tools). Ms. Baker conducted a labor market survey to identify job openings appropriate for Petitioner’s skill level and work restrictions. Her goal was to identify jobs which could return Petitioner to employment at, or close to, his pre-injury AWW. The labor market survey identified a variety of jobs available in the Pensacola area which Ms. Baker deemed suitable to Petitioner’s skill level and work restrictions. Potential jobs included customer service representative for Florida Pest Control, retail sales associate for T-Mobile, asset protection/loss prevention specialist for Home Depot, and vehicle transporter for Hertz. Ms. Baker prepared a résumé for Petitioner to utilize in applying for jobs identified in the labor market survey, and she connected Petitioner with Michelle Godson at CareerSource, the customer service specialist who would further assist Petitioner with employment opportunities in the area. Petitioner did not apply for any of the jobs identified by Respondent through the labor market survey. Rather, Petitioner found employment on his own and sought no further assistance from Respondent. Petitioner began work in December 2015 with WIS International (WIS) as an inventory associate. The job entails traveling to, and conducting inventory for, a variety of retail stores in the region. Petitioner utilizes a hand-held scanner to complete retail inventories. Petitioner’s rate of pay is $8.50 per hour and he is paid on a weekly basis. Petitioner works part-time for WIS, thus his earnings are below his pre-injury AWW. Petitioner has no plans to apply for a full-time position with WIS, although full-time work has become available with WIS during his employment. Petitioner invested significant time and effort toward his electrician apprenticeship, and desires a career in a field he enjoyed as much as electrician’s helper. Petitioner has requested the Department provide him with a training and education program to become a radiology (x-ray) technician. Specifically, he would like to attend Pensacola State College’s Radiography Program. Mary Cilek is a senior management analyst supervisor with the Department and reviewed Petitioner’s request for training and education. Ms. Cilek researched information on the internet regarding the personal qualities of, and physical demands on, radiology technicians, as well as the educational requirements to become a radiology technician. No competent evidence was introduced on which the undersigned could make a finding as to the particular educational requirements to become a radiology technician, or whether Petitioner would be able to perform the duties of a radiology technician within his work restrictions.1/ Petitioner’s argument in this case is twofold: First, the Department should assist him to obtain a career, rather than “any old job” that would allow him to earn at or near his pre- injury AWW. Second, Petitioner objects to the Department’s reliance on his pre-injury AWW as the basis for a labor market survey. Petitioner maintains that his pre-injury AWW was artificially low because he was out of work, or working part- time, during some of the weeks prior to the injury due to an illness. Section 440.491(1)(g), Florida Statutes, defines “suitable gainful employment” as employment . . . that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and nearly as possible to his or her average weekly earnings at the time of injury. While Petitioner maintains that none of the jobs identified was reasonably obtainable, given Petitioner’s work history, education, and work restrictions, Petitioner introduced insufficient evidence on which the undersigned could make that finding.2/ In this case, Petitioner’s AWW was established by the stipulation. Petitioner introduced no evidence that he had moved to set aside the stipulation or otherwise challenge the determination of his AWW. Petitioner did not claim that the stipulation was obtained by either fraud or duress, or based on mistake of fact.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Petitioner, Nathan Lavon Florence, is not eligible for training and education services at Respondent’s expense. DONE AND ENTERED this 1st day of July, 2016, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 1st day of July, 2016.
The Issue The issue to determine in this bid protest matter is whether the Department’s intended award of state term contracts for information technology staff augmentation services was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is the state agency responsible for procuring state term contracts. See §§ 287.012(28), 287.042(2)(a), 287.056-057, Fla. Stat. A “state term contract” is a term contract that is competitively procured by the Department. § 287.012(28), Fla. Stat. A “term contract” means an indefinite quantity contract to furnish commodities or contractual services during a defined period. § 287.012(29), Fla. Stat. The Department initiated this competitive procurement to establish a state term contract for information technology (“IT”) staff augmentation services. The procurement’s objective is to enable state agencies and other eligible users (“Customers”) to supplement their IT staff. The solicitation at the center of these protests is Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15- 80101507-SA-D (the “RFP”). The RFP is intended to replace an existing state term contract for IT staff augmentation services. The current contract has an estimated annual spending volume of approximately $66,800,000. As described in the RFP, the Department intends to award up to approximately 200 vendors with the ability to provide (temporary) IT staff services per specific position. Thereafter, a Customer who desires IT staff assistance will issue a Request for Quote, which is available for review by all vendors awarded with the state term contract (the “Contractors”). A Contractor who desires to fulfill the request responds to the Customer’s Request for Quote agreeing to provide IT staff who possess the technical skills needed. A Request for Quote also allows Customers to obtain pricing and service information from interested Contractors. See § 287.056(2), Fla. Stat. If selected, the Contractor will then charge the Customer for the assigned personnel on an hourly basis.6/ In other words, the Department will competitively procure IT staffing services from multiple vendors/Contractors. A vendor who is awarded a contract under the RFP is not given an actual IT job, but rather is included on a list of Contractors as a potential source to fill an IT position in the future. Thereafter, Customers may obtain IT staff assistance, through a Request for Quote, without having to conduct a separate, independent solicitation. The Department issued the RFP on February 5, 2019.7/ On February 11, 2019, the Department posted Addendum No. 1 to the RFP. Addendum No. 1 notified vendors that the RFP was a “new solicitation,” and that the previous solicitation had been cancelled and rebid. The Department subsequently posted Addendum No. 2 to the RFP revising and clarifying the bid specifications. The Department posted Addendum No. 3 to the RFP on May 20, 2019.8/ Addendum No. 3 instructed vendors that all proposals were due by March 19, 2019. On or before March 19, 2019, the Department received proposals from 378 vendors,9/ including ArnAmy and Seva. Under the RFP’s evaluation methodology, vendors’ proposals were scored in four Evaluation Criteria, as follows: Evaluation Criteria Maximum Possible Points IT Experience Certification (Attachment B) 100 Staffing Resource Management Plan 300 IT Staff Augmentation Contract Experience 200 Price (Attachment C) 400 per Job Title Total Score Possible Per Job Title 1000 Regarding the IT Experience Certification criteria, vendors submitted information on an IT Experience Certification Form which was included in the RFP. The form was scored based on the number of years the vendor had been in the IT business. The Procurement Officer identified in the RFP, Joel Atkinson, scored this criteria. (Both ArnAmy and Seva received the maximum 100 points in this category.) Regarding the Staffing Resource Management Plan (the “Management Plan”) and the IT Staff Augmentation Contract Experience (“IT Staff Contract Experience”) categories, the Department appointed three individuals (the “Evaluators”) to independently score these sections of each proposal. (The three Evaluators are referred to as the “Scoring Team”.) The Scoring Team consisted of Stephanie Reaves, Denise Roberts, and Heather Shoup. For the Management Plans, the Evaluators were to assign point values based on whether the vendors demonstrated “exceptional ability” (300 points); “intermediate ability” (200 points); “minimal ability” (100 points); or “fails to demonstrate ability” (0 points). For the IT Staff Contract Experience category, the Evaluators were to assess a point value based on whether the vendor demonstrated “extensive” experience (200 points); “intermediate” experience (150 points); “minimal” experience (100 points); or “fails to demonstrate experience” (0 points). Regarding the Price criteria, each vendor was required to complete a price sheet wherein the vendor quoted an hourly rate for each specific IT staff service for which the vendor desired to contract. The price sheet divided each staff service into “Job Families.” Within each Job Family, the RFP listed multiple “Job Titles.” The RFP included a total of 130 different Job Titles for which vendors could submit proposals. In addition, the price sheet further divided the majority of Job Titles into “Scope Variants,” which are degrees of experience within an individual Job Title (typically up to three Scope Variants per Job Title). For example, in the Job Family of Applications Development, the Job Title of Systems Analyst was broken out into Scope Variant levels of Entry, Intermediate, and Advanced.10/ Further, the RFP attached a “Ceiling Rate” to each Scope Variant. The RFP explained that the Department would not consider or evaluate a vendor’s proposal for a particular Job Title if the hourly rate the vendor quoted was higher than the Ceiling Rate. Finally, the price per hour the vendor quoted for the Job Title was considered a “not to exceed” price. In other words, after the state term contract was awarded, when a Contractor received a Request for Quote from a Customer, the Contractor could not charge a higher hourly rate than the price listed in its proposal. However, the RFP permitted Contractors to respond with a (competitively) lower hourly rate for the IT staffing services it would agree to provide. RFP, section 5.2.4 set forth a formula to calculate the score for the prices the vendors quoted for the specific Job Titles. The Department designed the formula to establish a base line with which to compare proposals. Using the formula, the vendor with the lowest price per Job Title or Scope Variant11/ was awarded 400 points (the maximum). Thereafter, every other vendor received points for price per Job Title using the following calculation: (X) x 400 = Z (N) Where: X = lowest price of all Proposals submitted per Job Title N = Respondent's submitted total price per Job Title Z = points awarded The Procurement Officer, Mr. Atkinson, (not the Scoring Team) calculated and assigned the points for price. The Vendors’ scores for IT Experience Certification and Price (from the Procurement Officer) were added to the Evaluators’ scores for the Management Plan and Staff Contract Experience for a total score for each proposal. Upon winning a contract, Contractors are only permitted to provide services for the specific IT positions awarded through the solicitation. As explained in RFP, Exhibit A, STATEMENT OF WORK, the Contractors agree to provide IT staffing services described in a document entitled “Job Families Descriptions.” The Contractors will be responsible for the following activities: The Contractor shall possess the professional and technical staff necessary to allocate, outsource, and manage qualified information technology staff to perform the services requested by the Customer. The Contractor shall provide Customers with staff who must have sufficient skill and experience to perform the services assigned to them. All of the information technology staff augmentation services to be furnished by the Contractor under the Contract shall meet the professional standards and quality that prevails among information technology professionals in the same discipline and of similar knowledge and skill engaged in related work throughout Florida under the same or similar circumstances. The Contractor shall provide, at its own expense, training necessary for keeping Contractor's staff abreast of industry advances and for maintaining proficiency in equipment and systems that are available on the commercial market. The Contractor shall be responsible for the administration and maintenance of all employment and payroll records, payroll processing, remittance of payroll and taxes, and all administrative tasks required by state and federal law associated with payment of staff. The Contractor shall, at its own expense, be responsible for adhering to the Contract background screening requirements, testing, evaluations, advertising, recruitment, and disciplinary actions of Contractor’s information technology staff. The Contractor shall maintain during the term of the Contract all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the information technology staff augmentation services. In short, the Contractors are responsible for finding, hiring, and recruiting qualified IT personnel. Thereafter, the Contractors must provide and manage their IT staff pursuant to the terms of the Request for Quote. Awards under the RFP were made by Job Title. RFP, section 5.3, explained the Basis for Award as follows: The Department intends to make multiple awards from this solicitation and anticipates awarding 200 contracts per Job Title. Contracts will be awarded to the responsible and responsive Vendors that are determined to be the most advantageous to the state based on, per Job Title, the highest total evaluation criteria scores, which includes price, IT Experience Certification, Staffing Resource Management Plan, and IT Staff Augmentation Contract Experience scores. The maximum possible total score per Job Title is 1000. * * * For those Job Titles where, in determining the 200th awarded Vendor, there are multiple responsible and responsive Respondents with the same numeric score, the Department reserves the right to award more than 200 contracts per Job Title to those responsive and responsible Respondents who are tied for the 200th contract award. Awards will be made per Job Title. A vendor was not required to submit a response for every Job Title. Instead, vendors were free to bid for only those Job Titles for which they desired to provide IT Staffing services. However, if a vendor did respond to a specific Job Title, the vendor was required to provide a price per hour for every Scope Variant within that Job Title. On June 5, 2019, the Department held a public meeting during which the three Evaluators, as well as the Procurement Officer, confirmed their scores. On June 24, 2019, the Department posted its Revised Notice to the Vendor Bid System listing all vendors to whom the Department intended to award IT staffing contracts. The Department awarded contracts to the top 200 vendors (plus ties) for each of the 130 Job Titles. ArnAmy bid for all 130 Job Titles. The Department awarded ArnAmy 21 out of 130 Job Titles. In other words, ArnAmy finished in the top 200 for 21 of 130 Job Titles. Seva bid for all 130 Job Titles. The Department did not award Seva any Job Titles. In other words, Seva did not finish in the top 200 for any of the Job Titles. ARNAMY’S PROTEST: ArnAmy protests the Department’s decision to award it a state term contract for only 21 of 130 Job Titles offered through the RFP. Mr. Datta Kadam testified on behalf of ArnAmy. Mr. Kadam is the founder and chief executive officer of ArnAmy. Mr. Kadam prepared and submitted ArnAmy’s response to the RFP. Mr. Kadam initially relayed that ArnAmy was formed in 2007 as an IT consulting and software development company. He further expressed that ArnAmy has extensive experience under the current (2016) state term contract, for which it is authorized to support all 130 IT staff positions. Approximately 85-90 percent of ArnAmy’s IT consulting practice is dedicated to providing IT staff augmentation services through contracts such as the Department’s state term contract. ArnAmy also services staffing contracts for Maryland and Texas. ArnAmy (through Mr. Kadam) presented three primary arguments protesting the Department’s award. The Scoring Team Failed to Evaluate ArnAmy’s Final Management Plan: ArnAmy argues that the Scoring Team was not provided with the final version of its Management Plan. Instead, the three Evaluators scored an incomplete, preliminary draft. Mr. Kadam believes ArnAmy would have received higher scores for Job Titles had the Evaluators scored the correct version of its Management Plan. ArnAmy attributes this mistake to a possible error in the MyFloridaMarketPlace (“MarketPlace”) program that interfered with or prevented Mr. Kadam from uploading, saving, and/or submitting the final version of ArnAmy’s Management Plan for scoring. MarketPlace is the State of Florida online procurement system. MarketPlace served as the “web portal” for vendors to access the Department’s procurement documents, as well as a guide to assist them through the purchase process. The RFP required vendors to submit proposals through MarketPlace. The main software component of MarketPlace is a program called “Ariba,” which is a suite of programs or tools. MarketPlace (through Ariba) allowed vendors to electronically submit their responses to the RFP. A vendor may take three distinct actions within MarketPlace/Ariba: (1) upload documents; (2) save documents; and (3) submit documents to the Department. Mr. Kadam maintained that the version of ArnAmy’s Management Plan that the Evaluators scored was an “intermediate working copy” that he had saved “locally” to MarketPlace. Mr. Kadam testified that he uploaded and saved at least three versions of ArnAmy’s Management Plan to MarketPlace. He intended the Department to score the last version of the Management Plan that he saved and submitted on March 18, 2019. Mr. Kadam explained that he was not aware that the Department did not score the appropriate version of ArnAmy’s Management Plan until after the Department posted its Revised Notice on July 24, 2019. Upon learning that ArnAmy was only awarded 21 Job Titles, Mr. Kadam conducted a “root cause analysis” to determine the reason. He initially reviewed the scores of several other proposals “to obtain a baseline of comparison.” He soon discovered that the Management Plan the Evaluators scored for ArnAmy was not the last (and correct) version he believes he uploaded to MarketPlace. Mr. Kadam suggests that a glitch occurred within the MarketPlace program that replaced or substituted an earlier version of ArnAmy’s Management Plan for the final version. At the final hearing, Mr. Kadam relayed that he did not find any error at the “front” or “user’s” (ArnAmy’s) end of the system. Nor did he receive any error messages after submitting ArnAmy’s Management Plan. He did, however, offer several possible, “logical” causes for the inconsistency. His theories included “deadlock,” or a situation that occurs on the system when one document is in use on the server that prevents another document (i.e., ArnAmy’s Management Plan) from being properly uploaded. Mr. Kadam explained that the difference between the early version and the final version of ArnAmy’s Management Plan was significant. RFP, section 5.2.2, instructed vendors to recite how they proposed to recruit, staff, and manage requests for IT services. The intermediate version of ArnAmy’s Management Plan did not include the information referenced in RFP, section 5.2.2.B, which specifically directed vendors to identify and describe the roles and expertise of their Principal Personnel.12/ Mr. Kadam represented that the final version of ArnAmy’s Management Plan did contain this information. ArnAmy argues that if the MarketPlace error had not occurred, its proposal would have received a much more favorable score. Mr. Kadam specifically pointed to the score from one Evaluator, Stephanie Reaves, who only awarded ArnAmy’s Management Plan 100 out of 300 points. Mr. Kadam contends that if Ms. Reaves had just increased her score to the next level (200), ArnAmy would have been awarded most, if not all, of the 130 Job Titles. As more fully discussed below, despite Mr. Kadam’s detailed analytical investigation into the MarketPlace program, ArnAmy did not produce conclusive or direct evidence to support his theory that an error within MarketPlace was responsible for the submission of an intermediate version of ArnAmy’s Management Plan to the Department, instead of Mr. Kadam’s final version. During his testimony, Mr. Kadam stated that “a lot could have happened” to the documents he uploaded. However, he conceded that he did not know exactly what that might have been. The Scoring Team was Not Qualified to Score the Proposals: ArnAmy also charges that the Department failed to properly train the three Evaluators or provide them adequate guidance on how to effectively score the vendors’ proposals. Specifically, ArnAmy asserts that the Department failed to select Evaluators with the requisite background, experience, and knowledge in the subject matter of the RFP, i.e., information technology. Consequently, the Evaluators could not have conducted a comprehensive or sound review of the IT staffing services listed in the RFP. In other words, the Department could not have competently or fairly decided that ArnAmy should not be awarded an IT staff augmentation contract because the Evaluators did not know how to properly score its proposal. To support its argument, ArnAmy points out that not a single Evaluator possessed IT experience. ArnAmy contends that the technical details involved in evaluating proposals for IT staff services require direct experience in the IT field or in acquiring and/or utilizing IT staffing services. Because the Evaluators were unqualified, as well as the fact that the Evaluators were under time pressure to evaluate all 374 proposals, ArnAmy alleges that they inconsistently applied the RFP’s evaluation criteria, and, in some cases, failed to apply it altogether. As discussed below, the facts adduced at the final hearing support a finding that the Evaluators were suitably qualified to score the vendors’ proposals. Therefore, the undersigned finds this argument insufficient to reverse the Department’s award. Evaluator Stephanie Reaves Incorrectly Scored ArnAmy’s IT Staff Contract Experience: Finally, as a direct result of the Scoring Team’s inexperience, ArnAmy asserts that one of the three Evaluators, Stephanie Reaves, failed to properly score its IT Staff Contract Experience. ArnAmy specifically alleges that, in her haste to review ArnAmy’s proposal, Ms. Reaves overlooked key information included in its IT Staff Contract Experience submission. RFP, section 5.2.3, advised that a vendor “will be scored” based on “the best representation of its experience in providing IT Staff Augmentation.” Section 5.2.3 specifically asked vendors to include information regarding: Total number of IT Staff Augmentation contract/purchase orders. Total combined dollar amount of IT Staff Augmentation contracts/purchase orders. At page 19 of its response to section 5.2.3, ArnAmy reported on its IT Staff Contract Experience document that ArnAmy had 11 years of IT staffing experience with the State of Florida involving 147 total contracts worth over $19,600,000. As discussed in paragraphs 93, 146, and 147 below, ArnAmy’s argument on this point has merit. Ms. Reaves awarded ArnAmy’s IT Staff Contract Experience 150 out of 200 points. At the final hearing, Ms. Reaves admitted that she did not see this information in ArnAmy’s proposal prior to formulating her score. SEVA’S PROTEST: Seva was not awarded any of the 130 Job Titles for which it bid. Seva protests the Department’s award arguing that the RFP’s scoring formula was built on an arbitrary evaluation system and a mathematically deficient price scoring system. Consequently, the evaluation process resulted in unfair and unreliable awards that should not have excluded Seva’s proposal. Danny O'Donnell spoke on behalf of Seva. Mr. O’Donnell prepared and submitted Seva’s proposal to the RFP. In addition, at the final hearing, Mr. O’Donnell was accepted as an expert in statistics, data presentation, and pattern analysis. Mr. O’Donnell explained that he is very competent at extracting and compiling data from spreadsheets and reports and presenting that information in a form that is more easily understood. Mr. O’Donnell testified that Seva is an IT consulting and software development services firm headquartered in Tallahassee, Florida. He further represented that Seva has extensive experience providing IT staffing services to the State of Florida. Seva has provided temporary IT staff for state agencies since 2009, and has participated in a total of 120 IT staffing contracts with the state worth over $19,800,000. Further, Seva is an active vendor supporting 129 of the 130 IT jobs awarded in the 2016 state term contract. Mr. O’Donnell also commented that Seva’s 2019 proposal was substantially the same as its 2016 submission. Further, the 2019 RFP criteria was very similar to the 2016 procurement terms. In 2016, Seva received good (and winning) scores for its Management Plan. Consequently, Mr. O’Donnell was puzzled why Seva received such low scores under this RFP. To understand the reason the Department did not award Seva any Job Titles, Mr. O’Donnell culled through reams of Department data, charts, and spreadsheets. Based on his statistical analysis, Mr. O’Donnell reached two primary conclusions why the Department’s scores for the 2019 RFP are unsound. The RFP’s Price Scoring System: Initially, Mr. O’Donnell argued that the RFP’s “extremely flawed” price scoring formula set forth in RFP, section 5.2.4, produced arbitrary and unreliable scoring results. Specifically, the formula allowed vendors to propose “low-ball,” “unrealistic,” and “unsustainable” prices that are excessively below the market value for IT staffing services in order to procure higher scores for their proposals. Consequently, vendors who submitted these “unbalanced” bids received an unfair competitive advantage over vendors who presented realistic prices (i.e., ArnAmy and Seva) for their IT staffing services. Mr. O’Donnell further urged that the formula caused a very narrow “band compression of price points,” which gave rise to “price neutralization.” In other words, vendors who offered legitimately low, but realistic, prices for Job Titles received no corresponding benefit because the unbalanced bids “caused the relative value of the pricing criteria to be neutralized in value.” Concomitantly, the two subjectively scored criteria graded by the Scoring Team (Management Plan and IT Staff Contract Experience) took on much greater significance in determining whether a particular vendor was awarded a state term contract. A vendor could lose more points on pricing than it could earn for its Management Plan and IT Staff Contract Experience. As a result, vendors who tendered “unbalanced” bids (with unreasonably low prices) obtained an inequitable and unwarranted benefit. Mr. O’Donnell asserted that there is no correlation between winning vendors having the best price, and the responsible and responsive vendors who can provide the best IT staffing service to Customers. Mr. O'Donnell testified to his belief that the Department did not account for or prevent these artificially low, “unbalanced,” bids. Consequently, it was his opinion that the Scoring Team did not select vendors whose proposals will be the most advantageous to the State of Florida (i.e., Seva). Therefore, the Department’s decision not to award the IT staffing contract to Seva must be overturned. Mr. O’Donnell alleged that his extensive statistical analysis reveals that the three Evaluators used markedly different standards to review, then score, vendors’ proposals. To support his argument, Seva produced a chart showing that Ms. Reaves awarded 161 of the 374 Management Plans a top score of 300. Ms. Shoup awarded 116 Management Plans with 300 points. Ms. Roberts awarded only 66 Management Plans the maximum 300 points. Mr. O’Donnell stressed that these diverse scores indicate an arbitrariness that is outside any zone of reasonable results. Consequently, as a matter of fairness, all proposals must be reevaluated. Mr. O’Donnell further argued that the inequity is compounded by the fact that the Department limited state term contracts for each Job Title to 200 vendors (and ties). Not only is restricting the available Contractors to 200 arbitrary, but the 200 Contractor cap impacts whether legitimate vendors were awarded IT staffing contracts. In addition to Mr. O’Donnell’s analysis and conclusions, Seva presented expert testimony from Dr. Wei Wu. Dr. Wu is a professor in the Department of Statistics at Florida State University. Dr. Wu was accepted as an expert in statistics, including the chi-square correlation test, as well as the “p value” as applied to the solicitation scoring. To formulate his opinion, Dr. Wu applied basic statistical methods and tools. He explained that he conducted a “standard chi-square test” to determine whether the three Evaluators produced the same scoring distribution. Dr. Wu then analyzed the data, reviewed the intuitive results, and formulated his conclusion. He rechecked his data to ensure that it was mathematically correct. Based on his statistical analysis, Dr. Wu announced, with “very high confidence,” that the three Evaluators did not apply the same methodology when scoring Management Plans. Dr. Wu specifically opined that he was “99.99 percent confident that, of the three evaluators; they don’t have the same standard to give the score.” In other words, his research indicated that the Evaluators did not have the same, common understanding of the RFP’s scoring criteria. On the contrary, the Evaluator’s scoring distributions were arbitrarily and unreasonably different. Further, Dr. Wu expressed that the scores awarded for price were “crunched” in the final results, thereby reducing their importance in the proposals’ total scores. Dr. Wu testified that, if the Evaluators had followed the same scoring standard, the score distributions across the 374 proposals would not have been so varied. Dr. Wu acknowledged that some deviation between Evaluators is expected, but not this much. Based on Mr. O’Donnell’s analysis, as supported by Dr. Wu, Seva asserts that statistical data confirms that each Evaluator applied dissimilar grading scales, which manifested itself into erratic scoring. Each Evaluator appears to have a different understanding of what a vendors’ proposal would have to show in order to earn a top-ranked score. Despite his conclusions, however, Mr. O’Donnell conceded that he has no previous experience forming statistical inferences from procurement criteria. Neither does he feel qualified to explain the meaning of his statistical analysis of the scores. Consequently, he could not testify “why” the data shows what it shows. Similarly, Dr. Wu acknowledged that he has never researched procurement scoring formulas, scoring of requests for proposals criteria, or the scoring behavior of procurement evaluators. Nor did his opinion take into account the subjective opinions of the three Evaluators. The Scoring Team was Not Qualified to Score the Proposals: Secondly, similar to ArnAmy, Seva asserts that the wide-ranging scores show that the Department failed to select Evaluators with the requisite experience and knowledge in IT. Seva further charges that the Department neglected to effectively train the Scoring Team. The Department only provided the three Evaluators poorly defined guidelines explaining how to evaluate the vendors’ Management Plans. In addition, Seva argues that amount of time the Department allotted for scoring (eight weeks) was too short to reasonably evaluate 374 separate proposals. DEPARTMENT RESPONSE TO THE TWO PROTESTS: In response to ArnAmy and Seva’s challenges, the Department asserts that it properly acted within its legal authority, as well as the RFP specifications, to award the RFP to qualified responsive and responsible vendors. The Scoring Team Selection/Qualifications: Initially, the Department rejects ArnAmy and Seva’s allegations that the Scoring Team members lacked the requisite experience and knowledge to evaluate the vendors’ proposals. To score a procurement in a request for proposals solicitation, section 287.057(16)(a)1 directed the Department to appoint: At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. In accordance with section 287.057(16)(a)1, the Department appointed three individuals (Ms. Reaves, Ms. Roberts, and Ms. Shoup) to serve on the Scoring Team. The three Evaluators were selected by Cliff Nilson (Deputy Director of the Division of State Purchasing), and Joel Atkinson (the Department’s Procurement Officer). Thereafter, the Evaluators were approved by the Department’s Secretary. At the final hearing, Mr. Nilson testified as the Department’s corporate representative. In his role as Deputy Director of State Purchasing, Mr. Nilson oversees the Department’s procurement process, as well as the state term contracts awarded under the RFP. Initially, Mr. Nilson discussed how the Department selected the three Evaluators. Mr. Nilson explained that the state term contract in this solicitation is fundamentally a “staffing” contract. Mr. Nilson characterized the procurement as “essentially . . . a human resource function that’s outsourced to a vendor to recruit, employ, and manage those people.” Mr. Nilson explained that the RFP’s purpose is to solicit vendors who will find, recruit, and manage IT personnel; then effectively provide those employees to Customers to use on an hourly basis to perform IT work. Vendors awarded with a state term contract are only responsible for providing “a person,” not directing or overseeing an IT project. Accordingly, the Department sought evaluators who had experience in human resources and staff management. Further, Mr. Nilson did not believe that a working knowledge of IT services was necessary for a fair and reasonable evaluation of the vendors’ proposals. Mr. Nilson relayed that, because the RFP’s purpose was to identify staffing companies, extensive knowledge of the IT tasks and responsibilities listed in the 130 Job Titles was not necessary when reviewing the vendors’ Management Plans and IT Staff Contract Experience. At the final hearing, the Department elicited testimony from Mr. Kadam (for ArnAmy) and Mr. O’Donnell (for Seva) admitting that the “deliverable” under this state term contract is people and their time and expense, not the various vendors’ IT prowess. During the hearing, both Mr. Kadam and Mr. O’Donnell acknowledged that their primary responsibilities would be to find, recruit, and place suitable IT staff with a state agency. Regarding training the Evaluators, Mr. Nilson conveyed that the Department anticipated that scoring would be fairly straightforward. Therefore, the Department did not plan a lengthy training regime for the Evaluators. Mr. Nilson further commented that the grading criteria described in the RFP did not require specific knowledge of IT services. The Evaluators were to review how each vendor proposed to hire, manage, and retain persons with IT skills. The Evaluators were not scoring the specialized knowledge of the vendors or their employees. Before starting their reviews, the Department arranged for each Evaluator to receive a copy of each proposals’ Management Plan and IT Staff Contract Experience section. The Evaluators also received an Evaluators Guide, as well as Instructions for the Evaluator Score Sheet. Each Evaluator also received and signed a document entitled Evaluator Instructions for Ethics, Sunshine Law, and Conflict of Interest. Finally, the Procurement Officer, Mr. Atkinson, contacted each Evaluator separately to explain their role and answer any questions. The RFP gave the three Evaluators eight weeks to review and score every proposal. Mr. Nilson envisioned the Evaluators spending approximately 30 minutes on each proposal. Mr. Nilson recognized that the scoring would entail hard work, but he was comfortable that the Evaluators would have enough time to perform their responsibilities. The Evaluators scored Petitioners’ proposals as follows: ArnAmy: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 200 points Ms. Shoup: 200 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Seva: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 0 points Ms. Shoup: 100 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Mr. Nilson testified that he was not concerned that the Evaluators’ scores were slightly different. He commented that in his experience, a one-step difference in the scoring spread between evaluators was “not unusual at all.” At the final hearing, each of the Evaluators testified about their background and experience in state procurements and IT staffing contracts as follows: Stephanie Reaves: Ms. Reaves testified that she has worked in the field of human resources for her entire career. She has hired, managed, recruited, and trained employees. At the time Ms. Reaves was selected as an evaluator, she was employed as the Director of Human Resources for the Department of Children and Families. During the RFP process, she transferred to the Department of Environmental Protection where she works as an Employee Relations Specialist. In addition, Ms. Reaves was previously employed with the Florida Housing Finance Corporation, where she reviewed and scored proposals submitted in response to requests for proposals for public contracts. Ms. Reaves also holds a Bachelor of Science degree in Business Administration, as well as a Masters in Human Resource Development. Prior to this RFP, however, she has never been involved in procuring IT staff services. Ms. Reaves declared that she had a firm grasp of her responsibilities as an evaluator. Before she scored the proposals, she reviewed and understood the scoring criteria described in RFP, section 5. She also read the Evaluators Guide, as well as the score sheet instructions. She further relayed that she spoke with the Procurement Officer, Mr. Atkinson, who provided general guidance. Ms. Reaves expressed that she felt adequately trained to evaluate the vendors’ proposals. She also believed that she had the necessary human resources experience to discern whether vendors sufficiently described their staffing abilities in their proposals. Ms. Reaves explained that, when evaluating a proposal, she read the vendor’s submission twice, as well as reviewed the applicable RFP sections. She then compared the proposal to the RFP evaluation criteria. At that point, she scored accordingly and submitted her scores electronically to the Department. Ms. Reaves spent approximately 20-30 minutes per proposal. Ms. Reaves rejected any concerns that her lack of IT knowledge affected her evaluation. She relayed that she did not find scoring difficult. She did not encounter terms in the RFP or the various vendors’ proposals that she did not understand. Ms. Reaves asserted that she worked fairly and independently. Further, she testified that she used the criteria set forth in the RFP and applied the scoring criteria consistently to each proposal. She relayed that she held vendors to the same standard and used the same method when evaluating each proposal. Finally, despite the large amount of commitment and work this evaluation required, Ms. Reaves firmly asserted that she had sufficient guidance and time to review and score each proposal. Regarding her specific scores, Ms. Reaves testified that she awarded ArnAmy 100 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal would have to “demonstrate exceptional ability.” This score meant that she thoroughly understood how a vendor would provide prospective IT staff to Customers, and the vendor did an excellent job in describing how it would identify potential IT staff that would respond to a Customer’s Request for Quote. ArnAmy’s Management Plan, however, only showed minimal ability to meet the RFP’s objectives. Specifically, ArnAmy did not explain “how” it intended to accomplish or implement a plan to provide IT staff to Customers. In addition, ArnAmy failed to include information regarding the experience of its Principal Personnel to manage IT staff. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Reaves awarded ArnAmy 150 out of 200 points. Ms. Reaves explained that she did not find in ArnAmy’s proposal responses to two specific requests for information: 1) the total number of IT Staff Augmentation contracts/purchase orders; and 2) the total combined dollar amount of IT Staff Augmentation contracts/purchase orders. However, as became apparent during the final hearing, ArnAmy’s proposal did, in fact, include information on these two specific points. What appears to have happened is that Ms. Reaves missed this information because ArnAmy presented these numbers at the very end (page 14) of its IT Staff Contract Experience section (and in tiny print).13/ In RFP, section 5.2.3, the total number of IT contracts and their combined dollar amount are the first two bullet points listed in the IT Staff Contract Experience criteria section.14/ Accordingly, Ms. Reaves looked for this information in the order set forth in the RFP, i.e., at the beginning of each vendors’ response to this section. (For example, Seva inserted its contract history in the first two lines of its IT Staff Contract Experience submission.) The RFP did not contain any specific instructions on how a vendor was to format its response to this section. At the final hearing, Ms. Reaves testified that she would still have given ArnAmy’s IT Staff Contract Experience a score of 150, even if she had found the entry for total IT contracts. It does appear, however, that Ms. Reaves plainly overlooked this information when evaluating ArnAmy’s proposal. Regarding Seva, Ms. Reaves awarded it 100 points (out of 300) for its Management Plan. She explained that she did not believe Seva adequately explained “how” it was going to accomplish “what was critical” to performing the IT staffing contract. On the contrary, Seva’s proposal lacked specifics, which left Ms. Reaves questioning Seva’s ability to provide quality IT staff for potential Customers. Ms. Reaves awarded Seva 150 out of 200 points for IT Staff Contract Experience. She testified that she could not determine the level or type of Seva’s staffing experience from its proposal. Denise Roberts: Ms. Roberts has spent her entire public service career working in the procurements field for various state agencies. When she was selected to serve as an evaluator, Ms. Roberts was employed as a Purchasing Agent for the Agency for State Technology. During her evaluation, Ms. Roberts moved to the Department of Lottery where she processed procurements, solicitations, and purchase orders. Notably, Ms. Roberts has previously procured IT staff augmentation services, as well as obtained quotes for IT staff assistance for the Agency for State Technology, the Department of Corrections, as well as the Department of Transportation. Additionally, Ms. Roberts is a Certified Public Professional Buyer and a Florida Certified Contract Manager. She does not, however, have any IT experience or training. Nor did she have knowledge of what the IT Job Titles listed in the RFP specifically entailed. Ms. Roberts testified that, before she scored the proposals, she reviewed and understood the RFP, as well as the documents she was to score. In addition, she spoke with the Department’s Procurement Officer (Mr. Atkinson) who provided general guidance on how to score the proposals. Ms. Roberts expressed that she followed the instructions the Department gave her and felt sufficiently trained to evaluate the vendors’ proposals. She also believed that she had enough experience to evaluate proposals regarding IT staffing services. Ms. Roberts explained that she generally conducted the following evaluation process: Initially, she read the vendor’s proposal, followed by a review of the RFP’s requirements. She then reviewed the proposal again to determine how the vendor complied with the RFP criteria. At that point, she scored the proposal. When scoring, Ms. Roberts handwrote all scores onto the RFP’s scoresheet. Thereafter, she input her scores online and submitted them electronically to the Department. Ms. Roberts spent about 30 to 45 minutes evaluating each proposal. Regarding her specific scores, Ms. Roberts testified that she awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal had to meet every aspect the RFP requested in great detail, as well as describe how the vendor was going to accomplish the RFP’s tasks. ArnAmy’s Management Plan, however, was missing information and provided less detail than she expected. Specifically, Ms. Roberts did not find a response to the RFP’s requirements that ArnAmy list the “Respondent’s Principal Personnel who will make management decisions concerning staff placement for services under the contract(s),” or the “role each Principal Personnel” would have in the contract. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Roberts awarded ArnAmy the maximum 200 points. She found that ArnAmy provided “quite a bit” of information regarding its prior experience. Regarding Seva, Ms. Roberts awarded it 0 points for its Management Plan. She explained that she did not believe Seva’s proposal provided the information the RFP requested. Specifically, Seva did not explain “how” it was going to accomplish “any” of the RFP’s staffing requirements. Seva simply offered general comments with no details or step-by-step processes describing how it would acquire, then manage, IT personnel for potential Customers. Neither did Seva include the role its principals would play in its Management Plan. Conversely, Ms. Roberts awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva provided all the information requested regarding its prior contract experience. Ms. Roberts asserted that she worked independently and did not communicate with the other Evaluators. Further, she testified that she conscientiously used the criteria set forth in the RFP and gave each proposal consistent and fair consideration. Despite the large amount of proposals, Ms. Roberts confidently voiced that she had adequate time to consider, then score, each proposal. Heather Shoup: Ms. Shoup currently serves as the Director of Human Resources for the Department. In this position, she oversees all human resource activities for the Department, including recruitment and retention, benefit administration, classifications, compensation, employee relations issues, orientation, and retirement coordination. Ms. Shoup testified that her professional experience has been primarily in the areas of financial and human resources. In addition, she has experience hiring and managing individuals who provide IT services. However, she has no prior experience in public procurements. In preparing for her evaluations, Ms. Shoup met with the RFP’s Procurement Officer (Mr. Atkinson), as well as reviewed the RFP criteria, the Evaluators Guide, and the Instructions for the Evaluator Score Sheet. Ms. Shoup expressed that she understood her responsibilities and had sufficient training and time to evaluate each proposal. When evaluating, Ms. Shoup relayed that she worked independently through each proposal and scored as best as she could. For a perfect score, she was looking for answers to all RFP criteria. She wanted to see clear, precise responses that provided all information the RFP requested. She specifically reviewed “how” the vendor intended to deliver IT staff support for Customers. Ms. Shoup testified that she spent approximately ten minutes per evaluation. Regarding her specific scores, Ms. Shoup awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that ArnAmy’s Management Plan was missing information regarding its Principal Personnel who would make management decisions under a potential staffing contract. On the other hand, Ms. Shoup awarded ArnAmy the maximum 200 points for IT Staff Contract Experience. She found that ArnAmy’s proposal reflected extensive IT staffing experience. Regarding Seva, Ms. Shoup awarded it 100 out of 300 points for its Management Plan. She explained that Seva’s proposal was “too broad.” Specifically, Seva did not answer the “how” questions in multiple categories. Conversely, Ms. Shoup awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva’s proposal clearly showed its prior IT contract experience. Finally, Ms. Shoup testified that she fairly scored each proposal she evaluated. She did not have difficulties reviewing the various submissions. Ms. Shoup also expressed that she had adequate time to consider, then score, each proposal. Based on the testimony received, the Department persuasively demonstrated that the Scoring Team “collectively [had] the experience and knowledge” required to score the RFP. Each Evaluator convincingly conveyed her ability to ably participate in the Department’s solicitation process. Although, none of the Evaluators had prior experience in the IT profession, each possessed the acumen and ability to competently conduct a procurement for IT staffing services. Ms. Reaves and Ms. Shoup both had extensive experience in personnel and human resource functions, including hiring and managing employees. Further, Ms. Roberts had broad knowledge in procuring services, including IT staff augmentation services. Finally, upon reviewing their scores again at the final hearing, each Evaluator testified that they would not change their scores. They each credibly expressed that neither ArnAmy nor Seva adequately addressed some or all of the criterion set out in the RFP. Therefore, based on their various professional and educational backgrounds and vocational experience, the undersigned finds that the Scoring Team was fully capable and proficient to review and score all aspects of each of the 374 vendor proposals. The Evaluators were adequately knowledgeable of, and sufficiently experienced for, their task of understanding and evaluating the vendors’ IT staffing plans. Conversely, neither ArnAmy nor Seva established that the Department’s appointment of a Scoring Team consisting of Stephanie Reaves, Denise Roberts, and Heather Shoup was contrary to the governing authority in section 287.057(16)(a)1. The RFP was not Contrary to the Department’s Governing Statutes, Rules, Policies, or the Solicitation Specifications: In addition to describing the Evaluator selection process, Mr. Nilson explained why the RFP limited the number of awards to 200 Contractors per Job Title (plus ties).15/ Initially, Mr. Nilson conveyed that the Department desired that vendors continue to compete to provide staffing services. Two hundred potential Contractors for each Job Title would maintain active competition when Customers requested price quotes. This arrangement would help ensure that Customers would continue to receive fair and reasonable prices in response to a Request for Quote. Secondly, restricting the number of Contractors to 200 would enable the Department to more easily monitor the large pool of vendors. Finally, the Department hoped to keep the Request for Quote process as simple and straightforward as possible for the Customers. When seeking IT staff services, Customers would have a definite and finite list of prospective Contractors. Further, Mr. Nilson added that market research indicated that only about 90 vendors actually participated in the prior/currently existing state term contract. Consequently, the Department determined that economical and fair competition for IT staff services would reasonably end at approximately 200 Contractors. Finally, the Department called Kimberly Stiver to discuss the possibility that an error occurred in the MarketPlace online system that impeded ArnAmy’s attempt to submit the final version of its Management Plan to the Department. MarketPlace is operated by Accenture. Ms. Stiver is Accenture’s Program Manager for MarketPlace. Ms. Stiver testified that, after learning of ArnAmy’s allegations, she and her staff investigated the MarketPlace system to uncover any evidence that would justify ArnAmy’s claim. Ms. Stiver reviewed event logs, the attachment history log, and the system logs to determine whether an error took place within MarketPlace related to the uploading, saving, or transmitting of ArnAmy’s Management Plan. Initially, Ms. Stiver explained that responding to a solicitation takes two steps. First, the vendor uploads the document. Then, the vendor “submits” the document to the agency. After uploading the document, but prior to submitting it, MarketPlace allows vendors to replace, revise, or upload additional documents. After a vendor has “submitted” the document, the agency then accesses the last uploaded and successfully saved version of the document in MarketPlace. At the final hearing, Ms. Stiver declared that, following her detailed inquiry, she found no indication within MarketPlace that ArnAmy was not able to, was prevented from, or encountered any difficulties in properly submitting its Management Plan to the Department. Expanding on her assertion, Ms. Stiver explained that each procurement in MarketPlace is a unique and distinct “event” that tracks key activity from the vendor community. ArnAmy’s activity on MarketPlace relating to this RFP shows that ArnAmy submitted a Management Plan at approximately 1:41 p.m. on March 18, 2019. Based on the event log, Ms. Stiver stated that ArnAmy logged onto MarketPlace only one time on March 18, 2019, and that ArnAmy only uploaded one document identified as its Management Plan at that time. The event log does not support Mr. Kadam’s suggestion that he uploaded multiple versions of a Management Plan which may have resulted in an earlier version being submitted to the Department instead of ArnAmy’s final intended version. The attachment history log also shows that ArnAmy logged into MarketPlace only one time on March 18, 2019, to upload, save, and submit documents. Ms. Stiver testified that, like the event log, the attachment history log does not support Mr. Kadam’s assertion that he saved at least three versions of ArnAmy’s Management Plan in MarketPlace. If Mr. Kadam had uploaded and saved, but not submitted, multiple versions of a Management Plan, Ms. Stiver asserted that the attachment history log would document the entries as “not submitted.” The attachment history log for ArnAmy, however, records no entries or messages with a status of “not submitted.” Finally, Ms. Stiver reviewed ArnAmy’s system log for the period of March 12 through 19, 2019, the time period during which MarketPlace was open to receive vendors’ proposals. The system log shows no system errors occurred at any time while ArnAmy was logged into MarketPlace from March 12 through 19, 2019. Based on her comprehensive explanation, Ms. Stiver persuasively testified that no errors or inconsistencies occurred in the MarketPlace online system that caused an earlier (incomplete) version of ArnAmy’s Management Plan to be submitted to the Department or prevented ArnAmy from effectively and timely uploading its Management Plan in response to the RFP. The logical conclusion is that the discrepancy between the version of ArnAmy’s Management Plan that the Evaluators eventually scored and the final version that Mr. Kadam claims he submitted in MarketPlace was the result of ArnAmy’s unfortunate oversight. The Possibility of “Unbalanced” Bids: Regarding Seva’s (and ArnAmy’s) complaint that the Department failed to identify and reject “unbalanced bids,” Mr. Nilson expressed that the RFP did not prevent vendors from presenting “unbalanced” proposals. Moreover, no statute, rule, or solicitation specification required the Department to reject a vendor’s proposal simply because the hourly rate quoted might be lower than market value for a certain Job Title or Scope Variant. Further, nothing in the RFP directed the Department to conduct a statistical analysis of vendor prices prior to awarding the state term contract.16/ The RFP clearly informed all vendors of the scoring criteria the Department would apply for price. Every vendor was free to submit a hourly rate for each Job Title for which it would agree to abide. The Department uniformly applied the RFP’s price formula to every Job Title from every proposal. Finally, while Seva asserts that the price formula could have led to unfair and/or misleading scoring results, the RFP allowed all vendors (including ArnAmy and Seva) to present “low-ball” prices in their proposals. Further, even if certain vendors did include unrealistic prices for their IT staffing services, the RFP protects Customers by binding a Contractor to the maximum price per Job Title or Scope Variant listed in its proposal. (In fact, a Contractor could offer even lower prices for its IT staff services in response to a Request for Quote.) Finally, regarding Seva’s complaint that its proposal was substantially similar to its previous proposal (which received a higher score), Mr. Nilson commented that Seva’s 2019 proposal was materially different from its 2016 proposal. Seva presented fewer Principal Personnel in 2019 (two versus four individuals). Mr. Nilson surmised this factor may have reduced the amount of IT experience Seva represented. In addition, Mr. Nilson believed that Seva’s prior proposal presented a clearer description of how it intended to recruit, and then place, prospective IT personnel for Customers. In that regard, Mr. O’Donnell confirmed that Seva’s 2019 proposal contained several substantive differences from its 2016 proposal. To summarize the findings in this matter, neither ArnAmy nor Seva established, by a preponderance of the evidence, that the Department’s decision to award only 21 of 130 Job Titles to ArnAmy and 0 of 130 Job Titles to Seva was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that either ArnAmy or Seva were placed at a competitive disadvantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP. Regarding ArnAmy and Seva’s complaint that the Department did not assemble a qualified Scoring Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assigned to score the vendors’ proposals possessed the “experience and knowledge in the program areas and service requirements for which [the] contractual services [were] sought” as required by section 287.057(16)(a)1. The Evaluators’ scores for ArnAmy and Seva’s proposals were logical, reasonable, and based on a sound understanding of the criteria requested in the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protests of ArnAmy and Seva, except that the Department should rescore ArnAmy’s IT Staff Contract Experience. Otherwise, the Department should award state term contracts under Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15-8010H07- SA-D as set forth in the Revised Notice of Intent to Award the RFP issued on June 24, 2019. DONE AND ENTERED this 5th day of February, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 5th day of February, 2020.
The Issue Whether Petitioner is entitled to additional reemployment services from the Bureau of Rehabilitation and Medical Services. 1/
Findings Of Fact Petitioner was employed by UPS from July 1987 until her employment was suspended on February 10, 1997, for cause unrelated to the job-related injuries at issue in this proceeding. Following an investigation of the unrelated matter, UPS terminated Petitioner’s employment on February 19, 1997. At the time of her discharge, she was working a 40-hour week, was receiving full benefits, and was being paid at the rate of $19.97 per hour. Petitioner’s duties with UPS required her to drive a truck, load and unload trucks, and deliver packages. On January 13, 1997, Petitioner sustained certain injuries on the job when she fell between a truck and a loading dock. Petitioner received medical treatment for her work-related injuries beginning February 12, 1997. Dr. Bruce M. Berkowitz is an orthopedic specialist who treated Petitioner. On May 19, 1997, Dr. Berkowitz observed that Petitioner had multiple areas of discomfort that did not fit into specific orthopedic problems that he could treat. He discharged Petitioner from orthopedic care with a 3% whole person impairment rating based on painful organic syndrome as outlined by the Florida Impairment Rating Guide. Dr. Berkowitz recommended that Petitioner’s care be continued by a physiatrist (a doctor who specializes in physical medicine or physical therapy). Dr. Berkowitz also recommended that Petitioner not lift, carry, push, or pull objects weighing over 30 pounds, and that she not bend from the waist. Dr. Berkowitz saw Petitioner again on August 1, 1997, but he merely reiterated the findings and recommendations from May 19, 1997. After Dr. Berkowitz discharged her, Petitioner received treatment from Dr. Scott D. Tannenbaum, a physiatrist. At the time of the final hearing, Petitioner continued to experience chronic pain, which she attributed to the injuries she sustained January 13, 1997. At the time of the final hearing, Petitioner’s limitations as described by Dr. Berkowitz in May and August 1997 had not improved. Because of her physical limitations, Petitioner is unable to perform her former duties with UPS. At the time of the final hearing, Petitioner was 47 years old. She has no formal education beyond high school other than a computer-training course. She has no special training and no special marketable skills. Petitioner was unemployed between February 19, 1997, and March 1998. Since March 19, 1998, Petitioner has been employed by the DBPR in an OPS 2/ clerical position that has no fringe benefits. In April 2000, Petitioner was earning $11.09 per hour. At the time of the final hearing, Petitioner was paid at the rate of $11.29 per hour. In the fall of 1999, Petitioner applied to Respondent for reemployment services. The goal of this program is to return eligible injured workers to suitable gainful employment as soon as possible. The reemployment services program is a return-to- work program, not a retraining program. The program is voluntary, and must be initiated by the injured worker or by the worker's compensation carrier. Section 440.491, Florida Statutes, defines suitable gainful employment to be: . . . employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earning at the time of injury. In December 1999, Petitioner attended an orientation program and a training workshop pertaining to employability skills. She completed a formal application for services from Respondent, which included releases for medical and employment history. A rehabilitation nurse reviewed Petitioner’s medical records and determined that Petitioner was able to return to work. Thereafter, Eva-Lyn Facey, a vocational rehabilitation counselor employed by Respondent, was assigned Petitioner’s file to make sure that all needed information was provided. Respondent typically explores three options for injured workers seeking reemployment services in the following descending order of preference. The first, and preferred option, is to place the injured worker with his or her former employer. If that option is not available, the next preferred option is on- the-job training for the injured worker. The last option is for full-time classroom re-training of the worker. The preferred option was not available because Petitioner’s prior employment had been terminated for cause and because Petitioner was no longer physically able to perform her former job. On April 6, 2000, Petitioner met with Ms. Facey. After that meeting, Petitioner’s application was complete and she had provided all information required by Respondent to determine whether option two or option three should be pursued. After the application file was complete, Ms. Facey turned the file over to her supervisor 3/ who reviewed the file with Angel Ivan Miranda, a vocational consultant. The supervisor and Mr. Miranda determined that Petitioner's employment with DBPR constituted "suitable gainful employment" as defined by Section 440.491(1)(g), Florida Statutes. They further determined that Petitioner was not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code, which provides as follows: (5) Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation: * * * (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days. In attempting to comply with the provisions of Section 440.491, Florida Statutes, Respondent attempts to determine what employment is reasonably attainable for the injured worker. Mr. Miranda determined that Petitioner's employment with DBPR constitutes suitable gainful employment despite the considerable disparity between Petitioner's pre- injury average weekly wage and her post-injury average weekly wage because better employment for Petitioner is not reasonably attainable. In making that determination, Mr. Miranda considered Petitioner's age, education, work history, transferable skills, and physical restrictions. It is unlikely that Petitioner will be able to find employment that pays as well as her former employment with UPS. Petitioner wants to be retrained in order to be able to work with computers. Mr. Miranda testified that it was likely that an independent evaluator would find that such retraining to be the most appropriate for Petitioner. Mr. Miranda also determined that after such retraining, Petitioner would likely start employment as a computer technician at a lower hourly rate than she was earning at DBPR. The greater weight of the credible evidence established that Petitioner's employment with DBPR constitutes suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner further reemployment services. DONE AND ENTERED this 19th day of March, 2001, in Tallahassee, Leon County, Florida. ___ CLAUDE B. ARRINGTON 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 March, 2001.
The Issue The issue in this case is whether Respondent, Jeffrey R. Baxter (Mr. Baxter) is eligible for vocational training and education at Petitioners’ expense to allow for him to return to suitable gainful employment.
Findings Of Fact The Department of Financial Services, Division of Workers’ Compensation, is the agency of the state of Florida charged with administration of medical care coordination and reemployment services that are necessary to assist employees injured in the workplace to return to suitable gainful employment. Mr. Baxter was, at the time of the hearing, 45 years of age. During the periods relevant to this proceeding, he was five feet, seven inches in height, and his weight ranged from 285 to 307 pounds. Mr. Baxter was employed by Ring Power as a mechanic from June 2006 until July 2011. In July, 2008, Mr. Baxter suffered a non-compensable injury while at home. He was seen by Dr. Phil Riddlehoover, a primary-care orthopedist practicing with The Orthopaedic Institute, who noted that Mr. Baxter complained of a sudden onset of lower-back, left buttock, and left hip pain. Dr. Riddlehoover related that Mr. Baxter had experienced similar back pain problems on several occasions over the past “couple of years,” for which he received chiropractic treatment. Mr. Baxter related to Dr. Riddlehoover that he had some lessening of pain with the chiropractic treatments, but still had significant limitation of range of motion and spasm. During his examination, Dr. Riddlehoover noted that Mr. Baxter had “marked limitation of range of motion in flexion and extension as well as side-to-side rotary movements.” An X- ray was taken, which showed minimal osteophyte formation in the lumbar spine, with well-maintained vertebral body heights and normal disk spaces. Dr. Riddlehoover’s assessment was low back pain, for which he recommended physical therapy for three weeks, prescribed medications, and “encouraged . . . light duty activity.” Based on stipulated facts submitted by the parties, the following findings are made: Mr. Baxter was involved in a compensable work- related accident while employed with the employer, Ring Power, on or about September 18, 2008. Petitioners accepted the September 18, 2008, work- related accident as compensable and provided medical treatment for same. Mr. Baxter was treated by Dr. Edward Samby, an authorized treating physician, for the September 18, 2008, work- related accident. On October 7, 2008, Dr. Samby opined that Mr. Baxter had reached MMI as a result of the September 18, 2008, workplace accident with a zero percent PIR. At that time, Dr. Samby released Mr. Baxter to full duty with no restrictions. Despite the foregoing stipulated facts, there is not an iota of competent substantial evidence in the record of this proceeding of the nature of the September 18, 2008, work-related accident, whether it involved or affected Mr. Baxter’s back, or whether it has any bearing whatsoever on any issue in this proceeding. Therefore, other than the bare stipulations, no findings regarding that purported accident are or can be made. On August 24, 2010, Mr. Baxter suffered a workplace injury that was determined to be compensable under the Florida Workers’ Compensation Act. Mr. Baxter’s injury was to his lower back. On September 16, 2010, Mr. Baxter was again seen by Dr. Riddlehoover. Dr. Riddlehoover related that Mr. Baxter experienced a sudden onset of lower-back discomfort while lifting and twisting a heavy object that was exacerbated when he twisted. Dr. Riddlehoover noted that Mr. Baxter “has a significant history of low back pain complaints within the last two to three-year time frame.”1/ Dr. Riddlehoover noted limitation to Mr. Baxter’s range of motion and tenderness to palpation. X-rays of Mr. Baxter’s back were taken in the office, and compared to previous X-rays. Dr. Riddlehoover noted that there was “a transitional vertebra at L5,” and in comparison with previous X-rays, there was “some loss of disk space height at L5-S1 with some scoliosis of the endplates. There are also some small posterior osteophytes that seem to have developed at L4-5 and L5-S1 as well.” Mr. Baxter was thereupon placed on light-duty status, and referred for physical therapy. On October 7, 2010, Mr. Baxter had a follow-up visit with Dr. Riddlehoover. Mr. Baxter stated that he had no improvement from his physical therapy, though Dr. Riddlehoover noted that “[i]t seems as though the physical therapy note that accompanies him from Health Works indicates to the contrary.” Since Mr. Baxter continued to complain of intermittent sharp pains, Dr. Riddlehoover ordered a MRI “as there seems to be a discrepancy as far as what the patient is reporting with his low back pain and what the physical therapist is reporting.” Physical therapy was discontinued. On October 8, 2010, Mr. Baxter underwent a MRI of his lumbar spine. The MRI, as interpreted by Dr. Riddlehoover, showed a disk herniation at L4-5, and a disk bulge at L5-S1. He determined the most significant problem was related to the disk bulge at L5-S1. Dr. Riddlehoover referred Mr. Baxter for a series of epidural steroid injections. By November 9, 2010, Mr. Baxter reported modest improvement from the epidural injections. Dr. Riddlehoover decided to wait three to four weeks in order to determine whether Mr. Baxter was responding to treatment. Mr. Baxter was provided with a note reiterating his work limitations. On December 2, 2010, Mr. Baxter reported to Dr. Riddlehoover that he continued to show improvement. Dr. Riddlehoover referred him for a repeat epidural injection, and refilled his medication prescription. On February 2, 2011, Dr. Riddlehoover reported that Mr. Baxter continued to have ongoing discomfort in his back that required continued use of narcotic analgesics. Dr. Riddlehoover further reported that Mr. Baxter was “unable to do a hard days labor and place high demands on his back without serious discomfort.” He refilled Mr. Baxter’s medication prescription, and referred Mr. Baxter to Dr. Troy Trimble, an orthopedic surgeon practicing with The Orthopaedic Institute, to determine his suitability for surgical relief. On March 9, 2011, Dr. Trimble diagnosed Mr. Baxter with low back pain to the left leg, lower thorasic right side back pain, and morbid obesity. He recommended physical therapy, medication refills, and possibly a L3 selective nerve block. He suggested that Mr. Baxter’s symptoms would improve with aggressive physical therapy and weight loss, and concluded that Mr. Baxter was not a surgical candidate. Dr. Riddlehoover relied upon Dr. Trimble’s report in the development of his opinions. At some time prior to March 25, 2011, Mr. Baxter suffered a separate back injury that occurred while he was getting out of a truck. It resulted in a sudden onset of discomfort that caused him to go to an emergency room. The emergency room referred Mr. Baxter back to Dr. Riddlehoover for further evaluation and management. By the time of his visit with Dr. Riddlehoover on March 25, 2011, the discomfort from that injury was completely gone. Dr. Riddlehoover placed Mr. Baxter at MMI with a PIR of zero percent for that claim, but noted that Mr. Baxter was to follow up with him to assess his consultation with Dr. Trimble. On April 26, 2011, Mr. Baxter followed up with Dr. Riddlehoover, continuing to complain of lower-back discomfort from time-to-time. Dr. Riddlehoover extended physical therapy for an additional period of four weeks, and refilled Mr. Baxter’s medication prescription. On June 1, 2011, Mr. Baxter returned to Dr. Riddlehoover, and indicated no improvement with his lower- back and spine pain after six weeks of physical therapy. Dr. Riddlehoover referred Mr. Baxter back to Dr. Trimble for further assessment as to whether he was an operative candidate, and refilled Mr. Baxter’s medication prescriptions. On June 9, 2011, Ring Power determined it was no longer able to employ Mr. Baxter within the light duty restrictions assigned by Dr. Riddlehoover, and therefore terminated his employment. On June 20, 2011, Dr. Trimble reevaluated Mr. Baxter. He again diagnosed Mr. Baxter with lower-back pain to the left leg, and noted evidence of L5-S1 disc degeneration. Dr. Trimble reiterated that Mr. Baxter was not a surgical candidate, and recommended pain management and weight loss. On June 29, 2011, Mr. Baxter returned to Dr. Riddlehoover, who thereupon placed Mr. Baxter at MMI and assigned a seven percent PIR. Dr. Riddlehoover assigned permanent work restrictions that allowed Mr. Baxter to lift no more than 10 pounds, and instructed Mr. Baxter to follow up as needed. As to the cause of the disk abnormalities, Dr. Riddlehoover testified that “I can only assume that [the herniation and bulge] were related to the workplace accident because I had no prior MRIs.” Dr. Riddlehoover concluded that the workplace injury was the major contributing cause of the PIR, based upon the history of the injury; his reading of the October 2010, MRI results; and subsequent treatment. The PIR and work restrictions were not based on a functional-capacity examination or other objective measure, but relied entirely on Mr. Baxter’s relation of his subjective impression as to what he could withstand without discomfort. On August 31, 2011, Mr. Baxter requested vocational screening from DOE. In mid-2011, DOE vocational rehabilitation funding was cut. Thereafter, processing of applications for vocational training and education, including that of Mr. Baxter, was slowed. In the Medical Update Questionnaire that accompanied his request for vocational screening, Mr. Baxter noted that he had completed all medical treatment, but requested a second opinion. On January 5, 2012, at Mr. Baxter’s request, he was evaluated by Dr. Troy Lowell, a board-certified orthopedic surgeon. Dr. Lowell reviewed Mr. Baxter’s 2010 X-ray and MRI, and performed a physical examination. Although Dr. Lowell testified that he did not recall having seen any X-ray other than that taken in 2010, his office visit report indicates that Mr. Baxter “presents with x-rays from that time,” and that “[c]ompared to 2008 films there is no significant change.” Mr. Baxter told Dr. Lowell that he had experienced back pain since 2008. However, Dr. Lowell was unaware of the accident that occurred in 2008 or, seemingly, of the earlier incidents of lower-back pain previously related by Mr. Baxter to Dr. Riddlehoover. Dr. Lowell analyzed the 2010 MRI, and saw no evidence of the disk herniation noted by Dr. Riddlehoover. Rather, his reading of the MRI showed a slight degenerative bulge at L4-5, and severe degenerative disk disease at L5-S1. Dr. Lowell concluded that the severe degenerative disk disease at L5-S1 was the cause of Mr. Baxter’s ongoing symptoms. Dr. Lowell testified that that it was possible that an injury occurring prior to 2010 could have led to the observed degree of degenerative disk disease in 2012, but that he did not have sufficient information to draw a conclusion as to whether the 2008 injury in particular was the cause. However, he was confident that the level of degeneration could not have resulted from a 2010 traumatic injury. Based on his office examination and review of the X- ray and MRI, Dr. Lowell placed Mr. Baxter at MMI and assigned a zero percent PIR. His assignment of a zero percent PIR was based on his understanding that Mr. Baxter may have had “an exacerbation of symptoms as a result of his work injury,” but that there was no objective evidence of any worsening or aggravation of the preexisting condition, nor was there any evidence of any new injury resulting from the August 24, 2010, workplace accident. In Dr. Lowell’s opinion, it is Mr. Baxter’s preexisting, severe degenerative disk disease that prevents his ability to work at his previous position and duties. At about the time that Dr. Lowell’s report was received, DOE staff was advised that section 440.491 was likely to be repealed during the 2012 legislative session. In response, DOE did nothing to advance any training and education screenings or referrals. Section 440.491 was not repealed during the 2012 legislative session. Rather, duties and responsibilities for the administration of training and education screenings, reemployment assessments, vocational evaluations, and reemployment services that had been the responsibility of the DOE were transferred to the Department. The transfer of duties from DOE to the Department was approved on April 20, 2012, but did not become effective until July 1, 2012. DOE personnel did not act on requests for retraining in the interim because they did not want to obligate funds to be applied to the Department’s budget after the transfer of responsibilities. Given the disruption that resulted from the transfer of duties and staff to the Department, a vocational evaluation for Mr. Baxter was not arranged until October 2012. The vocational assessment of Mr. Baxter was performed on November 2, 2012, by Karla Wooten, pursuant to a contract with the Department. The evaluation resulted in the submission of a Vocational Evaluation Final Report to the Department on November 20, 2012. The Final Report recommended that Mr. Baxter be afforded the opportunity to continue his education through the Computer Information Technology, A.S.-degree program at Florida Gateway College. On December 3, 2012, the Department issued its notice approving vocational education, which determined that the best way to return Mr. Baxter to suitable gainful employment was through the Computer Information Technology, A.S.-degree program at Florida Gateway College. When it made its decision, the Department had the office-visit evaluation reports from Dr. Riddlehoover and Dr. Lowell, along with the information submitted with the Request for Screening and the completed forms and file materials from USIS. The Department accepted Dr. Riddlehoover’s assessment of Mr. Baxter’s injury as carrying more weight because he had seen Mr. Baxter on 10 occasions going back to his 2008 injury, and had authorized treatments over an eight to ten- month period. Ring Power and USIS filed a petition disputing the Department’s notice of approval on the basis that Mr. Baxter does not meet the qualifications for retraining. The vocational education program itself was not disputed. On December 18, 2012, Mr. Baxter was again seen by Dr. Lowell. The visit was apparently non-eventful, as Dr. Lowell had no memory of it until presented with his report at his April 16, 2013, deposition. However, the report indicated no change in Mr. Baxter’s symptoms, and resulted in no change of his diagnosis or opinion. There is no question but that Dr. Riddlehoover was more familiar with Mr. Baxter’s symptoms as a result of his multiple office visits. However, testimony of Dr. Riddlehoover and Dr. Lowell regarding the cause of those symptoms, i.e., disk herniation versus disk degeneration, was based entirely on their reviews of the same MRI and X-rays. Dr. Riddlehoover had been practicing orthopedics for six years at the time of his May 7, 2013, deposition testimony. He is not board certified in any area. His residency was in family practice, and his professional experience prior to his October 2007, association with The Orthopaedic Institute in Lake City, Florida, was exclusively as an Emergency Department Physician. Dr. Lowell has specialized in orthopedics for the entirety of his professional career. He has been certified since 1996 in orthopedic surgery by the American Board of Orthopaedic Surgery. Dr. Lowell has published and presented on topics directly related to issues relevant to this proceeding, including disk herniations and epidural steroid treatments. To be clear, the undersigned in no way discounts or denigrates Dr. Riddlehoover’s record of medical training, experience, and service, which appears to be exemplary. However, based on Dr. Lowell’s depth of specialized knowledge, and the substance and certainty of his testimony regarding the cause of Mr. Baxter’s inability to continue working at his previous level of exertion, the undersigned accepts Dr. Lowell’s conclusion that Mr. Baxter’s medical condition is the result of degenerative conditions that predate the workplace injury as being the most persuasive evidence on that issue.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Respondent, Jeffrey R. Baxter, is not eligible for reemployment services at Petitioners’ expense. DONE AND ENTERED this 3rd day of July, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of July, 2013.
Findings Of Fact The Petitioner is a black female who has been continuously employed by the Respondent, at the Gretchen Everhart School since approximately February of 1975. Prior to that time she worked for approximately seven years as a licensed practical nurse. The Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes. The Petitioner initially interviewed for an employment position with the Respondent in February, 1975. She was hired as a "pupil personal services worker," a combination social worker and guidance counselor. She was paid out of the Respondent's "social worker budget" and was not hired specifically as a nurse. The Petitioner maintains that upon her hiring she requested that her beginning salary be adjusted to reflect her prior work experience as a licensed practical nurse and that request was denied. However, the record reflects that she did not make any formal request for prior work experience pay credit at that time. Her formal complaint was not actually filed with the Florida Commission on Human Relations until October 28, 1985, well in excess of the 180 day requirement for filing such an action imposed under Section 760.10(10), Florida Statutes. Thus, even if she had made a formal request for such pay credit in 1975, its denial then would not now be actionable. Moreover, the Petitioner did not establish that any salary schedule, implementing regulation or collective bargaining agreement existed which provided for a salary adjustment of this type in 1975. On October 9, 1984, the Petitioner filed a written supplemental salary request with Dr. Paul Onkle, then the director of employee relations for the Respondent. She requested that she be given experience pay credit for seven years of prior experience as a licensed practical nurse at Sunland Hospital in Tallahassee, Florida. That request was denied. There is no evidence which would establish the date on which an initial, collective bargaining agreement between the Respondent and the Leon Classroom Teachers Association (LCTA), was first ratified. The Petitioner has been employed in a position included in that bargaining unit represented by the LCTA ever since the date of the first collective bargaining agreement, however. Accordingly, the terms and conditions of Petitioner's employment have been fixed by the terms of the collective bargaining agreement, ever since ratification of the initial agreement. On April 8, 1985, the Petitioner again wrote to Dr. Paul Onkle requesting his review of certain experience pay credit granted to Carolyn Peterson and Joanne Cox Arnette, in conjunction with which she requested his reconsideration of her request for experience pay credit. Ms. Peterson and Ms. Arnette are white female employees of the Respondent. Dr. Onkle instructed her on the proper means of filing a grievance and thereafter she executed a "Level I grievance" document on April 23, 1985, and delivered it to her immediate supervisor, Mrs. Susan Raker, the principal of Gretchen Everhart School. On April 24, 1985, Mrs. Raker denied the Level I grievance request on the ground that the Petitioner's salary had been set in compliance with the terms of the collective bargaining agreement then in effect. Thereafter, pursuant to the terms of the collective bargaining agreement then in effect, the Petitioner filed a "Level II grievance" with Dr. Onkle, who was then the director of Employee Relations. Dr. Onkle denied that grievance on June 24, 1985. Under the terms of the collective bargaining agreement in effect at that time, the responsibility to pursue the grievance after this denial was upon the Petitioner and the LCTA. No further review of Petitioner's request was ever formally sought, however. Under the terms of the collective bargaining agreement in effect when the requests for salary credit were filed in 1984 and 1985, no prior work experience credit was permitted for any non-teaching position, except for military service and certain work experience for vocational certification. The position in which the Petitioner was employed at that time did not involve any verified work experience which was required for vocational certification and there were no other provisions in the collective bargaining agreement in effect at that time by which the Petitioner would be entitled to receive a salary increase based upon her prior, non-teaching, licensed practical nurse employment. The Petitioner has alleged that the Respondent discriminated against her on account of her race by refusing to compensate her for prior work experience, while allegedly compensating similarly situated white employees an additional amount based upon similar work experience, thus violating Section 760.10, Florida Statutes. In view of this allegation, the work experience credit granted to a number of white employees, and the circumstances under which it was granted, must be examined. Carolyn Peterson was a white employee who began working with the Respondent in 1974 and became a full-time Occupational Specialist in 1976. In 1979, she was granted a salary increase based upon her prior work experience as an area sales manager and assistant buyer for Maas Brothers Department Store. Her position with the Respondent that year required her to be vocationally certified by the Florida Department of Education, and she was so certified. The collective bargaining agreement in existence at the time she was granted the salary increase for prior work experience specifically allowed such credit for each year of verified work experience above that required for certification of vocational teachers. The Petitioner, on the other hand, has not, in her employment position with the Respondent, ever been required to be vocationally certified by the Florida Department of Education. Thus, the Petitioner and Ms. Peterson are not "similarly situated" nor or they comparable employees with respect to their entitlement to any salary adjustment for prior work experience. Joanne Cox Arnette is a white person employed by the Respondent who was initially employed as a teacher in 1977. On approximately April 21, 1977, she requested credit for certain prior work experience, including four years of teaching in a public school system in Florida, four years of employment with the Florida Department of Education, and one year of teaching experience at the Florida A & M University. Her position was among the positions included in the bargaining unit represented by the LCTA. The collective bargaining agreement in existence at the time Ms. Arnette requested that credit specifically included and allowed for such credit for prior employees of the Florida Department of Education, by virtue of Section 238.01, Florida Statutes (1977) having been incorporated by reference in the terms of that collective bargaining agreement. That particular provision providing salary adjustment for prior work experience as an employee of the Department of Education terminated with the collective bargaining agreement entered into between the Respondent and the LCTA in 1979. It has been the practice and policy of the Respondent, however, at least as early as 1977, to continue to maintain experience credit for prior employment to an individual employee who was initially qualified for such a salary increase based upon prior employment experience; even though subsequent collective bargaining agreements, entered into after that employee obtained that salary increase, no longer included provisions authorizing such increases. Further, it has been the policy and practice of the Respondent, at times pertinent hereto, to consider and determine any requests for salary increases, based upon prior work experience, in the context of the collective bargaining agreement or other appropriate provisions prevailing and applicable at the time the request is made. Thus, for the reasons stated above, the Petitioner and Ms. Arnette are also not "similarly situated" employees and their positions are not comparable, within the meaning of Section 760.10, Florida Statutes. Gary Coates is a white person who was employed by the Respondent in March of 1976. In 1982, he requested and was granted a salary increase based upon credit for certain prior work experience. He was employed at that time in a position which was included in the bargaining unit represented by the LCTA. He was granted a salary increase for three years of teaching experience in a public hospital. An examination of the collective bargaining agreement in effect at the time Mr. Coates requested the salary increase reflects that credit was allowed for prior teaching experience in a public hospital or public institution. Mr. Coates met those requirements and was granted work experience credit for those three years. He also requested a salary increase for other work experience, and that request was denied by reason of the Respondent's determination that the experience involved did not qualify him under the terms of the collective bargaining agreement. Therefore, the Petitioner and Mr. Coates are not "similarly situated" employees and their prior work experience was not comparable within the meaning of Section 760.10, Florida Statutes. Mr. Tom Heiman, a white person, was hired in September, 1985. He was hired as a social worker, which is a non-teaching position, also included within the bargaining unit represented by the LCTA. Social workers have been included within that unit since the unit was first certified by the Public Employees Relations Commission. In administering the collective bargaining agreement with respect to social workers, the Respondent has followed a policy and practice of interpreting that collective bargaining agreement to allow credit for prior social work experience as if such experience was in fact prior "teaching" experience. Mr. Heiman was granted work experience credit for six years of prior social work, although he was denied work experience credit for other prior work experience. Under the terms of the collective bargaining agreement in effect in 1985, he was entitled to be credited with each year of teaching or social work experience in a public hospital or a public institution which required teacher certification in an area "in field" with a corresponding teaching position assignment. He was properly certified in that field and was otherwise entitled to receive work experience credit for his six years prior social work experience. Thus, Mr. Heiman and the Petitioner are not "similarly situated" employees either, and their work experience is not comparable. Mr. Gerald Torano, a white person, was first hired in October, 1985, as a social worker. His position with the Respondent was also included within the LCTA bargaining unit. He was granted a salary increase in 1985 based upon five years experience as a social worker in a public institution, as well as with the Florida Department of Health and Rehabilitative Services. He was granted a salary increase pursuant to the same collective bargaining agreement by which Mr. Tom Heiman became eligible for such an increase. Just like Mr. Heiman, Mr. Torano requested additional work experience credit for other past experience which the Respondent denied, based upon the fact that such additional work experience did not qualify him for increased salary credit under the terms of the collective bargaining agreement prevailing at the time he made the request. Thus, the Petitioner and Mr. Torano are also not "similarly situated" employees, nor was their prior work experience comparable. Ms. Jean Schneggenberger is a white person first hired by the Respondent in February, 1985. She was a registered nurse and was hired in that capacity as a Registered School Nurse. Her position is not included within the bargaining unit represented by the LCTA, rather, she is known as a "classified employee," which is a term used by the Respondent to describe those employees whose positions are not included within any accepted bargaining unit, for which there is a collective bargaining agreement in force. Although the Petitioner never asserted in these proceedings that Ms. Schneggenberger was an example of another white employee who had been treated differently and more favorably then Petitioner, the Petitioner offered substantial testimony in an attempt to demonstrate that she had in fact engaged in comparable "nursing duties" or in "nursing related duties" while engaged as a counselor and social worker at the Gretchen Everhart School. Thus, an examination of the manner in which Ms. Schneggenberger's salary as a nurse was computed is relevant to this proceeding. The record establishes that for the year 1984-85, the Respondent adopted a separate salary schedule and implementing regulations related to all "classified" employees. Those implementing regulations applicable to Ms. Schneggenberger are found in the Respondent's Exhibit 4, beginning at paragraph 2A. Ms. Schneggenberger is the only person employed by the Respondent in the position of "Registered School Nurse." Accordingly, neither the Petitioner nor any other employee of the Respondent is "similarly situated" or comparable in his position to Ms. Schneggenberger and her position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Petition for Relief from an alleged unlawful employment practice filed by the Petitioner, Annie M. Francis, be dismissed in its entirety. DONE and ENTERED this 18th day of March, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3185 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-3. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. Rejected as subordinate to the Hearing Officer's findings. Accepted, but not for its material import. 6-7. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 8. Rejected, as contrary to the preponderant weight of the evidence. 9-13. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 14-16. Accepted. 17. Rejected as to its material import. 18-20. Rejected as subordinate to the Hearing Officer's findings. 21-22. Accepted. 23. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 24-25. Rejected as immaterial. 26-27. Rejected as subordinate to the Hearing Officer's findings. 28. Rejected as subordinate to the Hearing Officer's findings and as contrary to the preponderant weight of the evidence. 29-30. Rejected as subordinate to the Hearing Officer's findings. 31-33. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 34. Rejected, as contrary to the preponderant weight of the evidence. Respondent's Proposed Findings of Fact: 1-2. Accepted. 3. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 4-8. Accepted. 9. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 10-17. Accepted. COPIES FURNISHED: Danni Vogt, Esquire 308 East Park Avenue, Room 209 Post Office Box 11301 Tallahassee, Florida 32302 C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Charles Couch, Superintendent Leon County School Board 2727 West Pensacola Street Tallahassee, Florida 32301
Findings Of Fact Petitioner was hired by the Department of Agriculture, Respondent, in June 1965 as a Standards Inspector II with the Division of Standards, Bureau of Weights and Measures. He performed satisfactorily in that job for over 20 years and in September of 1977 he was promoted to Standards Inspection Supervisor and placed in a probationary status for a period of six months. In his position as Standards Inspector II, Petitioner had been assigned to the small scale division and most of his work involved testing small capacity scales with a weight limit of 30 pounds or less. This work occasionally involved lifting weights up to 50 pounds and Petitioner worked alone. Shortly after Petitioner was promoted to supervisor in 1977, his superiors started receiving complaints from inspectors supervised by Petitioner and from public establishments serviced by Petitioner. These complaints ranged from improper dress while visiting those establishments supervised by the Department of Agriculture to an inability to work harmoniously with the inspectors whose work Petitioner supervised. Petitioner's first Employment Performance Review as a supervisor was December 1, 1977. In this review (Exhibit 8) Petitioner was given an overall evaluation of 4.6, which is barely above-the 4.5 floor for a satisfactory evaluation. He was next evaluated June 1, 1978, and again given a marginally satisfactory evaluation, this time of 4.5. Following each of these evaluations, Petitioner was counseled by his supervisors regarding the unsatisfactory aspects of his performance, and serious doubts arose regarding Petitioner's qualifications to work satisfactorily as a supervisor. His probationary status was extended. In March 1979 Petitioner suffered a heart attack, was hospitalized and returned to work within ten days. He exhibited no physical evidence of an inability to perform his duties and made no complaints about physical difficulties. Petitioner's performance of duty did not improve and on his yearly evaluation June 5, 1979, he was given an overall rating of 3.5, which is unsatisfactory. By giving Petitioner an unsatisfactory rating following a conditional rating, Respondent had to elect between dismissing Petitioner or demoting him. In view of Petitioner's satisfactory performance as a Standards Inspector II for over 21 years, Respondent elected the latter and demoted Petitioner to Standards Inspector II but without loss of pay. The only vacancy open at that time for Standards Inspector II was in the Jacksonville area and Petitioner was transferred to Jacksonville effective September 14, 1979. On this date, September 14, 1979, Petitioner obtained a letter from his doctor stating it would be contraindicated for Petitioner to lift weights exceeding 50 pounds (Exhibit 1). Petitioner sent a copy of this letter to Respondent, and it was placed in Petitioner's personnel file. Upon transfer to Jacksonville, Petitioner was placed on what is referred to as a medium scale truck. Two people are assigned to a medium scale truck and generally handle weights up to 50 pounds. This vehicle is, however, equipped with a 500-pound weight, for which a power tailgate on the truck and special dolly for towing the weight to the scales are provided for the two people assigned to handle this weight. Petitioner was specifically instructed to lift no more than 50 pounds. Petitioner made several attempts to get a lateral transfer from Jacksonville back to Tallahassee. On September 18, 1978, Petitioner wrote a letter to his supervisor requesting he be reinstated as a Standards Inspection Supervisor (Exhibit 11); in April 1979 Petitioner met with the Commissioner of Agriculture to request reassignment to Tallahassee; and on March 20, 1980, Petitioner's attorney wrote a letter on Petitioner's behalf requesting a lateral transfer (Exhibit 12). In neither letters or meetings did Petitioner contend, or even raise the issue, that his performance of duty on the medium scale truck was physically difficult for him because of his age or heart condition. By letter dated May 26, 1980 (Exhibit 2), Petitioner's doctor advised Respondent that pushing and pulling scales in Petitioner's work was detrimental to Petitioner's health. In this letter the doctor equivocated somewhat in the last paragraph thereof in which he wrote: "... what really can be said is that any sort of arm exercise which amounts to lifting and carrying, pushing or shoving anything beyond just the usual you do in day to day existence is a detrimental thing for people with coronary artery disease." Upon receipt of this letter, Petitioner was sent to another doctor by Respondent at Respondent's cost, for a second opinion. When this doctor confirmed the diagnosis of coronary artery disease and that Petitioner was unable to perform his duties due to his heart condition, Respondent was faced with the choice of dismissing Petitioner or placing him on sick leave to see if Petitioner's condition improved. Petitioner had a large amount of accumulated sick leave and he was placed on sick leave and told if he could not perform the work of Standards Inspector he should seek more sedentary employment. All the while on sick leave Petitioner drew the full pay he was receiving at the time he was placed on sick leave. While on sick leave Petitioner called the personnel office of Respondent several times to see if they had found a job for him. Petitioner was told he needed to go to the Department of Administration and establish various positions for which his experience qualified him. He was also told on various occasions to go to specific agencies such as the Department of General Services, Department of State, Department of Natural Resources, and Department of Transportation, and contact the personnel officers at those agencies to inquire what jobs were available. Petitioner did go to the Department of Administration and established those categories of positions for which he was qualified, but he did not go to any of the other departments to which he was specifically directed by Respondent's personnel officer. On two occasions Petitioner was offered jobs in Respondent's Division of Forestry in Perry, Florida, but Petitioner declined these jobs since he did not want to leave Tallahassee. Petitioner testified he did not want to move away from the doctor who had been treating him. Both of these jobs offered to Petitioner paid considerably less than Petitioner was making while on sick leave. It is clear from Petitioner's own testimony that he expected Respondent to find him a job. When no such job was forthcoming and Petitioner was advised by Respondent that his sick leave would soon run out, Petitioner, on May 4, 1981, became employed by the Leon County Sheriff's Department as a 911 operator. He did not advise Respondent of this employment and continued to draw his compensation from Respondent as well as compensation from the Sheriff's Department until his sick leave ran out in June 1981. Shortly before the exhaustion of Petitioner's sick leave, he was contacted by Respondent and given the options of going on leave without pay, of being placed in another job, or of going on disability retirement. Petitioner resigned from his employment on June 9, 1981. He continued to be employed by the Sheriff until October of 1981 when his employment there was terminated. Petitioner drew unemployment compensation from October 1981 until he was hired in his present job as a file clerk in the Department of Labor in June 1982. Exhibit 16 contains a list of handicapped people employed by Respondent, of which several have suffered heart attacks and have other cardiac diseases.
The Issue The issue in this case is whether the training and education authorized in Section 440.491, Florida Statutes,1 is required for Petitioner to return to suitable gainful employment within the meaning of Section 440.491(1)(g).
Findings Of Fact Petitioner has been employed by Intervenor as a sales associate since January, 1993. Petitioner sustained an injury on March 3, 1993, while working for Intervenor. Petitioner tore the meniscus in his left knee. Dr. Michael Smith, an orthopedic surgeon, performed a partial medial meniscectomy. On October 7, 1993, Dr. Smith performed a second surgery on the same knee. Petitioner returned to light duty work for half-days on November 15, 1993. He worked half-days until June 30, 1994, when he began working five to six hours a day. He continues to work five to six hours a day for Intervenor. Petitioner reached maximum medical improvement on April 21, 1994. Dr. Smith rated Petitioner's permanent impairment at six percent. Petitioner can not tolerate lifting more than 20 pounds occasionally or more than 10 pounds frequently. He can not tolerate repetitive squatting, stooping, and climbing. Petitioner can not tolerate standing more than six hours at a time in consecutive eight-hour days. Petitioner's current sales position requires too much standing, squatting, stooping, and climbing for Petitioner to work consecutive eight-hour days. However, Petitioner can work consecutive eight-hour days in a job that does not exceed the restrictions Petitioner can tolerate. Petitioner can work consecutive eight-hour days for Intervenor in a commercial sales position because it requires less lifting, standing, squatting, stooping, and climbing each day. However, a commercial sales position is not available. 1. The Pub In July, 1992, Petitioner began working as a bartender for the Pelican Pub (the "Pub"). He was employed by the Pub on March 3, 1993, when he was injured working for Intervenor. Before the injury, Petitioner worked approximately 57 hours a week in both jobs. Petitioner worked approximately five eight-hour or nine-hour shifts for Intervenor. He worked two eight-hour shifts at the Pub. After the injury, Petitioner returned to work at both jobs. However, he does not work 40 hours a week for Intervenor. In August, 1996, Intervenor required Petitioner to elect either full-time status, working 40 hours a week, or part- time status, working four shifts of five to six hours each. Petitioner elected part-time status. Since July, 1994, Petitioner has worked approximately 48 hours a week at both jobs. Petitioner works approximately 24 hours a week at each job in four six-hour shifts. Petitioner works no more than eight hours a day each day except Monday. Monday is a very light day for business at the Pub. Petitioner has seven hours to rest between his two jobs each Monday. At the Pub, Petitioner can sit much of the time, especially in the first three hours of each shift. While working for Intervenor, Petitioner is on his feet most of the time. Average Weekly Earnings One of the requirements of "suitable gainful employment" is that Petitioner's average weekly earnings after the injury must equal, as nearly as possible, his average weekly earnings at the time of the accident. The parties stipulated that average weekly earnings at the time of the accident ("pre- injury earnings") were approximately $360. The stipulation does not specify whether it includes earnings from the Pub. Petitioner argues that earnings from the Pub were excluded from the stipulated amount of pre-injury earnings and should also be excluded from his post-injury earnings. Respondent and Intervenor assert that earnings from the Pub should be included in Petitioner's post-injury earnings, irrespective of the stipulated amount of pre-injury earnings. Earnings from any job that qualifies as employment is properly included in post-injury earnings. It is uncontroverted that Petitioner's job with Intervenor qualifies as employment. Petitioner's employment with the Pub is employment within the meaning of Section 440.02(15)(a). The Pub is a private employer that employed four or more employees before and after the injury. Earnings from Petitioner's employment with the Pub are properly included in Petitioner's post-injury earnings. Before the injury, Petitioner earned approximately $360 a week from his employment in both jobs. He earned $289 a week from his employment with Intervenor, working 41 hours a week at $7 an hour. He earned approximately $71 a week from his employment with the Pub, including salary and tips. After the injury, Petitioner earns approximately $358 from his employment in both jobs. Petitioner earns $214 from his employment with Intervenor, working 24 hours a week at $8.90 an hour. He earns $144 from his employment with the Pub, working 24 hours a week at $6 an hour. The $214 Petitioner now earns from his employment with Intervenor is less than either the stipulated or actual wages Petitioner earned from that employment before the injury. However, the $358 Petitioner now earns from all employment in both jobs is substantially the same as both the stipulated and actual wages he earned from the same employment before the injury. Petitioner's average weekly earnings after the injury, as nearly as possible, equal his average weekly earnings at the time of the injury. Underemployment Petitioner is not underemployed within the meaning of Florida Administrative Code Rule 38F-55.0001(16).2 Petitioner's post-injury wages from his employment with Intervenor are less than 80 percent of his pre-injury wages from the same employment.3 However, Petitioner's post-injury wages from all employment, as nearly as possible, is equal to his pre-injury wages from the same employment. Training and education are not required to return Petitioner to suitable gainful employment solely with Intervenor. All that is required is job availability. Petitioner can earn average wages equal to his pre- injury wages by working five eight-hour shifts for Intervenor in commercial sales when and if such a position becomes available. Petitioner is not precluded from suitable gainful employment with Intervenor by age, education, work history, transferable skills, previous occupation, or injury. A commercial sales position is reasonably attainable in light of Petitioner's age, education, work history, transferable skills, previous occupation, and injury. It offers an opportunity to restore Petitioner as soon as practicable and as nearly as possible to his pre-injury earnings. Training And Education Benefits On January 22, 1995, Petitioner applied for training and education benefits. Respondent conducted a screening and properly determined that Petitioner should not be referred for vocational evaluation. The screening conducted by Respondent complied with the requirements of Section 440.491(6)(a) and Rule 38F-55.009. Respondent obtained Petitioner's medical file, a history of wages and earnings from Petitioner's employment with Intervenor and the Pub, and relevant background information. Respondent then scheduled an interview with Petitioner. Respondent reviewed the medical file, work history, and background information. Respondent investigated the information to determine whether Petitioner had the ability to perform the duties required by his pre-injury employment with Intervenor and the Pub. Respondent interviewed Petitioner and representatives of both employers. Respondent obtained written clarification from the treating physician regarding Petitioner's ability to perform his duties in both jobs. Respondent properly determined that Petitioner should not be referred for vocational evaluation. Petitioner had returned to suitable gainful employment, maintained such employment for at least 90 days, and had transferable skills which allowed him to work in suitable gainful employment within the meaning of Rules 38F-55.009(5) and (6). As soon as was practicable after the accident, Petitioner returned to both of the positions he held prior to the accident. Petitioner has consistently worked approximately 48 hours a week in suitable gainful employment with Intervenor and the Pub. Petitioner's current employment offers a meaningful opportunity to restore Petitioner to his average weekly earnings at the time of the injury. Petitioner's average weekly earnings before and after the injury, as nearly as possible, are equal. Training and education are not required for Petitioner to return to suitable gainful employment. Such employment is reasonably attainable in light of his age, education, work history, transferable skills, previous occupation, and injury. 5. Training And Education Goals Petitioner wishes to return to college in a program that leads to a bachelor's degree in sociology. Petitioner has previously earned 84 credit hours from Bucks Community College. Petitioner needs approximately 30 credit hours to complete the requirements for a bachelor's degree. The average annual income for entry level positions in sociology is approximately $20,000. Petitioner may be able to tolerate the duties of a position in sociology more easily than he tolerates those in his current employment if a future position in sociology requires less standing, stooping, squatting, bending, or lifting. A course of study leading to a bachelor's degree is not an education program within the meaning of Rule 38F-8.021(4). Approved education programs are limited to those in vocational and adult education, trade or business schools, and community colleges offering associate degrees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that training and education are not required for Petitioner to return to suitable gainful employment and denying Petitioner's request for training and education. DONE AND ENTERED this 11th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1997.
The Issue The issue in this proceeding is whether the training and education authorized Section 440.491(6), Florida Statutes (1997), is likely to return Intervenor to suitable gainful employment. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Intervenor is a 54-year-old male who sustained a workers' compensation injury on March 19, 1998, in the course of his employment as a surveyor for Petitioner, Misener Marine Construction ("Misener"). Intervenor received an open fracture to his left arm when a nylon cargo strap on a barge he was unloading came loose and struck Intervenor in the back of his left arm. Intervenor's treating physician diagnosed the fracture as an "extremely severe fracture of the left digital humerus." When the fracture healed, it was stable but significantly malaligned. Intervenor reached maximum medical improvement in November 1998. He suffered a permanent physical impairment of 12 percent of the body as a whole. Intervenor suffered a severe disability to his left upper extremity, including the adhesive capsulitis, contractures around the left elbow, left elbow osteoarthritis, and possible ulnar neuropathy. The functional capacity evaluation ("FCE") determined that Intervenor's injury resulted in a significant loss of grip strength in his left hand and identified several work restrictions required by Intervenor's medical condition. The FCE work restrictions include: no lifting of more than 73 pounds from floor to knuckle and no more than 47 pounds from knuckle to shoulder; and a maximum push weight of 33 pounds. Overhead reaching is limited to an occasional activity. Frequent activities are limited to sitting, standing, walking, stair climbing, squatting, stooping, and crouching. When Intervenor was injured on March 19, 1998, he had been employed by Misener since 1995 and had been working as a surveyor for 25 years. Intervenor's average weekly wage at the time of his injury was $519.71. Intervenor's average weekly wage was high for Brevard County, Florida. At Misener, Intervenor provided line and grade for various crafts. When not surveying, Intervenor established control for the line and grade. Intervenor used a variety of instruments in performing his daily duties. The instruments Intervenor used included a transit, two tripods, two surveying chains, cloth tapes, hammers, and three or four different types of level rods and wrench poles. A typical day began at 7:00 a.m. and ended at the earliest at 5:30 p.m. or dark. Intervenor's job duties required him to carry the various tools of his trade around the job site. The total weight for all of his tools was approximately 164.05 pounds. He normally carried a stake bag over his right shoulder, an instrument in his right hand at his waist, and an instrument and rod over his left shoulder. Intervenor would sometimes carry these instruments thousands of feet. He had to periodically stop and change the method of carrying the tools. The job duties at Misener required Intervenor to do a great deal of climbing, crouching, and balancing. Since impairment of Intervenor's left arm has adversely affected Intervenor's balance, the loss of balance would create a danger of physical harm to Intervenor in the performance of his job responsibilities at Misener. The injury to Intervenor's left arm prevents Intervenor from performing a number of surveying functions required of a surveyor. For example, Intervenor cannot establish contact with a surveying chain. Contact with a surveying chain requires Intervenor to pull the chain with his left hand while holding a plumb bob with his right hand. Intervenor cannot perform the tasks required to establish contact with a survey chain because his left arm is weak and he lacks the strength needed to grip the chain with his hand. Intervenor cannot climb vertically because he cannot use both arms to climb, and must also carry equipment as he climbs. It would be unsafe for Intervenor to climb vertically because he cannot grab a rung correctly. A surveyor must finger and adjust surveying instruments in order to perform his or her duties. Intervenor is unable to perform the required tasks because of his injury. During the FCE, Intervenor told the evaluator that the maximum lifting in his job was 50 pounds. Intervenor meant that one item weighed more than 50 pounds. Intervenor did not mean that the total weight for all of his instruments did not exceed 50 pounds. In addition, the maximum level of effort Intervenor was able to exert without pain during the FCE was increased by pain medication Intervenor took before the FCE. Upon receipt of a worker's formal application for screening and medical records, a rehabilitation nurse for Respondent interviews the injured worker to determine the worker's eligibility for services. If it is determined that the worker is eligible for services, the file is transferred to a vocational consultant. The vocational consultant determines whether the injured worker is employable in the local labor market based on the worker's physical restrictions and average weekly earnings. If the worker is not employable in the local market, the vocational consultant looks for a local employer who is willing to train the injured worker in some other profession while the state subsidizes a portion of the wages. If neither possibility is suitable for the worker, the vocational consultant considers retraining the injured worker in order to return the worker to suitable gainful employment. Once an injured worker is approved for retraining, the insurance carrier is obligated to pay temporary total rehabilitation benefits for at least 26 weeks. The insurance carrier may be required to provide an additional 26 weeks while the injured worker is in school. In this case, the best way to return Intervenor to suitable gainful employment is to retrain him at Brevard Community College in the computer systems analyst program. Retraining in the computer systems analyst program is appropriate based on Intervenor's age, general education, work experience, the medical diagnosis of a comminuted open left distal humeral fracture, and the resulting permanent disability and permanent work restrictions already discussed in previous findings. Retraining of Intervenor is also supported by the vocational evaluation of Intervenor performed by a certified vocational evaluator. The vocational evaluation relied on Intervenor's medical records, functional capacity evaluation, job history, and formal application to Respondent. It included five hours of testing and interviews by a certified vocational evaluator on April 20, 1999. The tests comprised a vocational aptitude test, a vocational interest test, an intelligence test, and an academic skills test. The evaluator used the test results to assist her in determining the best vocational direction for Intervenor. Alternative job placement is not a viable alternative for Intervenor. The vocational evaluation included a transferable skills analysis used to determine the jobs Intervenor would be able to perform given his current medical restrictions, work restrictions prescribed in the FCE, educational history, and previous work history. Intervenor has worked as a land surveyor, chief of party, and structural steel worker. The transferable skills analysis revealed nine potential job matches as a surveyor, mapping supervisor, civil drafter, sewer maintenance supervisor, bank boss, supervisor of weights, brake repair supervisor, production planner, and liaison engineer. A market survey for those nine positions was unnecessary. Intervenor did not qualify for most of the jobs or most were unavailable in the geographical area or the job did not offer compensation equal to Intervenor's pre- injury wages. Intervenor could not return to his previous employment because of his work restrictions and had no alternative job placement potential based on his transferable skills. Based on the market survey in the vocational evaluation, the best alternative for Intervenor was retraining in computer information systems analysis. Intervenor began retraining in the computer systems analyst program on August 23, 1999. Respondent is paying for Intervenor's tuition, books, and necessary supplies; and Intervenor is performing well academically. Retraining was the best alternative for Intervenor for other reasons. First, no evidence suggests that a local employer was willing to train Intervenor in some other profession while the state subsidized a portion of the wages. In addition, Intervenor was not employable in the local labor market, including Misener, in light of his physical restrictions and average weekly earnings. Misener's claim that a job exists for Intervenor as a "chief surveyor/field examiner" is not supported by credible, persuasive evidence. As a threshold matter, the job description does not constitute an offer of suitable gainful employment. It is a modified job that does not fit within any DOT codes for surveying and contains mixed elements of various DOT codes. Moreover, the position may, or may not, have become available in West Palm Beach, Florida, in January 2000. Even if the position of "chief surveyor/field examiner" were not determined to be a modified job outside of the geographical area, the position is beyond Intervenor's intellectual and educational capabilities. In addition, the position requires Intervenor to perform functions precluded by the work restrictions arising from his disability including some handling and fingering, lifting more than 11.1 pounds, full use of both hands and arms, carrying instruments and taking measurements, and reaching in all directions. The job description for "chief surveyor/field examiner" is inconsistent with Intervenor's job experience for over five years at Misener. Intervenor never supervised anyone except himself and did not "coordinate with the project engineer and office engineer." Intervenor is not qualified to "analyze/interpret blueprints and schematics for particular job sites." He has never calculated "material needed" and coordinated "survey procedures to include matching blueprints/schematics to actual projects." Intervenor never performed these tasks and is not qualified to perform them. The job description for "chief surveyor/field examiner" indicates that the employee would be standing and walking "occasionally." During more than five years of employment with Misener, Intervenor stood or walked up to 12 hours a day and sat down only at lunch. The "frequent sitting" in the office included in the job description is also inconsistent with Intervenor's experience at Misener. While employed as a surveyor at Misener, Intervenor was in the office approximately two percent of his time for the purpose of sweeping the floor. The job description for "chief surveyor/field examiner" requires occasional bending and "seldom" stooping and crouching. While at Misener, Intervenor was constantly bending, stooping, and crouching to make marks needed to set up the surveying equipment. He had to do a great deal of climbing while carrying instruments weighing up to 115 pounds. The job description for "chief surveyor/field examiner" requires only occasional reaching in all directions and then primarily as required for paperwork. While at Misener, Intervenor was required to constantly reach in all directions. Part of the required reaching involved hand signals. The injury to Intervenor's left arm prevents Intervenor from performing the necessary hand signals with his left hand. The statement in the job description that Misener is willing to accommodate the "chief surveyor/field engineer" in "set up of instruments" is inconsistent with Intervenor's experience. Intervenor returned to work in December 1998. He lasted less than three days. The only assistance Misener gave Intervenor was a foreman who had other responsibilities in addition to assisting Intervenor. Misener provided no one whom Intervenor could regularly ask to help carry his instruments and to help set up the instruments. While at Misener for over five years, Intervenor never saw anyone with an assistant assigned to help him or her. Contrary to Misener's assurances to Intervenor, Misener did not provide transportation for Intervenor and his equipment. Misener terminated Intervenor's employment on the grounds that Intervenor was unable to perform the duties of a surveyor. Misener's claim that a position of "chief surveyor/field engineer" exists is internally inconsistent. Petitioner AIU ("AIU") telephoned Respondent on January 15, 1999, and requested services on behalf of Intervenor. The representative for AIU stated that he would send the medical records directly to Respondent in an effort to expedite the process. AIU sent a follow-up letter to Respondent along with the medical records. The letter stated that AIU was referring Intervenor to Respondent for assistance in rehabilitation due to a severe arm injury that precluded Intervenor from returning to work as a surveyor. The letter further stated that Intervenor was interested in computer training at a local college but had no specific direction and requested assistance from Respondent. Respondent never received an indication from AIU of a job available for Intervenor until after the Petition for Hearing was filed in July 1999. On March 22, 1999, Respondent sent two letters to Misener and AIU and copied each addressee with a copy of the letter sent to the other. The letter to AIU stated that Intervenor had represented that no suitable employment was available to him and that if reemployment was not an option, Respondent may sponsor vocational evaluation or may sponsor retraining, and that Intervenor may be eligible for up to 52 weeks of disability benefits. The letter to Misener stated that Intervenor had indicated that suitable employment was unavailable and requested Misener to provide a copy of a job description of any available employment. Neither Misener nor AIU responded to either letter. Petitioners first claimed that suitable gainful employment was available in January 2000 when they filed the Petition for Hearing on July 9, 1999.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that the best way to return Intervenor to suitable gainful employment is through training in Brevard Community College's Computer Information Systems Analysis program. DONE AND ENTERED this 27th day of January, 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 27th day of January, 2000. COPIES FURNISHED: Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sheri Wilkes-Cape General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Donald Bennett, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438 Nancy Staff Slayden, Senior Attorney Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Rachel R. Bachand, Esquire Suite 615 1980 North Atlantic Avenue Cocoa Beach, Florida 32931
The Issue The issue to be resolved is whether Petitioner received more than one increase in pay in any twelve-month period for the category of added duties and responsibilities, Rule 60K-2.006, Florida Administrative Code.
Findings Of Fact Stephen C. Metzler is an Environmental Specialist II in a leadworker position with the Department. Stephen C. Metzler received an Increase to Base Rate of Pay for added duties in the amount of $69.39, on April 7, 1998. Thereafter, Robert Merritt was promoted and there was no one to supervise the employees that he had previously supervised. He asked Petitioner to continue to perform the duties he had been performing, and assume the supervisory duties that Merritt had previously performed. Merritt advised Petitioner that he would be given additional compensation for performing these duties. Petitioner assumed and performed these added supervisory duties, and Merritt administratively initiated the pay increase. Subsequently, the paperwork was prepared by one of Respondent's clerical personnel, reviewed by the personnel officer, and signed by Petitioner's superiors. Petitioner did not see this paperwork at any time prior to its submission and had no part in its preparation. Both of Petitioner's supervisors who had signed and approved the pay-raise testified. They were aware that Petitioner was performing supervisory, leadworker duties and it was their intent to increase his compensation for performing those duties. Metzler received an increase to his base rate of pay for added duties in the amount of $75.86, on October 2, 1998. The Escambia County Health Department was not aware of the rule of prohibiting more than one pay increase in twelve consecutive months for the same category. The Department of Management Services audited the payroll of the Department of Health and found several deficiencies including overpayment to Metzler. The Personnel Action Request Form dated April 7, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. Under the section of the form relating to "Salary," there is no selection under "Salary Additive." The Personnel Action Request Form dated October 2, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. However, under the section of the form relating to "Salary," salary additive, the block "leadworker" was checked. It was testimony of the personnel officer that, had they known of the Rule restricting two pay increases within twelve consecutive months, they would have checked the block under increase in base rate of pay, Internal Pay Relationships. That, together with the selection of "Leadworker" under "Salary Additive," would have been administratively correct. Both payroll request forms authorize the increase of pay by placing an "X" in the box "added duties." Personnel Action Request one authorized a raise on April 7, 1999, and Personnel Action Request two authorized a raise on October 2, 1999, which is within twelve months of the first raise. McCulough calculated the $1,010.80 overpayment by determining the increases paid prior to the expiration of the twelve-month period of the preceding raise for the same category, added duties and responsibilities. McCullough calculated the amount of overpayment and drafted a letter for the Director of the Health Department's signature. McCullough drafted the letter seeking reimbursement of the $1,010.80, because of the audit exception and the demand of the Department of Management Services to correct the administrative error that had been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent correct its paperwork and not attempt to collect the monies involved. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2000. COPIES FURNISHED: Stephen C. Metzler 4048 Charles Circle Pace, Florida 32571 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
