The Issue The issue is whether Petitioner is entitled to formal training and education sponsored by the Division of Workers' Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact From 1985 through 1995, Petitioner was employed by Truly Nolen, a pest-control company. In April 1995, Petitioner was a termite supervisor engaged in fumigation work. In this job, Petitioner set up crews and sent different crews to do jobs. He scheduled work and performed actual work on the job, such as dragging sand bags around a building and putting tarps on the roofs of buildings. While so employed on April 26, 1995, Petitioner fell while spreading tarp on a roof. Petitioner injured his back, suffering what the neurosurgeon described as “fundamentally a frozen back,” and was unable even to bend forward and touch his knee caps. Diagnosed with a herniated disc in the lumbar region, Petitioner had surgery on September 12, 1995. Although the surgery repaired the herniated disc, Petitioner’s recovery was prolonged. The surgeon determined that Petitioner reached maximum medical improvement on January 19, 1996. At this time, the surgeon stated that Petitioner was capable of working in light- to medium-duty work with no lifting of more than 50 pounds and no repetitive lifting of 25 pounds or more. The surgeon assigned Respondent a 12 percent impairment of the person as a whole, but later agreed that it was a 16 percent permanent partial impairment. The surgeon believes that Petitioner may have intermittent problems with his back for the rest of his life, but it is not medically probable that he will require surgery or any other form of aggressive intervention. The day after being released by the surgeon, Petitioner met with the branch manager of the Truly Nolen office, out of which Petitioner had worked at the time of his accident. For about one month, Petitioner had been performing part-time, light office duties at this office as part of a work-hardening program. The branch manager offered Petitioner a residential pest-control route, rather than Petitioner’s old job as a termite supervisor. Although not entirely clear in the record, the office appears to have employed only one termite supervisor. By the time that Petitioner was able to return to work, the branch manager had hired another person for the job of termite supervisor. It is, in any event, unclear whether Petitioner would have been able to do his old job anymore, as it required the supervisor to drag heavy tarps over the tops of buildings, as Petitioner was doing when he fell and was injured. Petitioner and the branch manager discussed two routes, but the manager was inclined to give Petitioner the route that Petitioner found less preferable. Petitioner visited one house on the route and determined that the value of the route, as posted in the office, was less than one-half of what Petitioner had been making at the time of the injury. Petitioner then informed his supervisor that he would not take the job due to inadequate money. Petitioner admits that money, rather than the physical demands of the job, was the sole reason for declining the job offer. The most productive pest-control routes in this Truly Nolen office earn $35,000 annually. Petitioner could probably earn $20,000 to $25,000 from the route that the branch manager offered him. Two weeks prior to the hearing, Petitioner started work as a car salesperson at a local Chevrolet dealer. He was earning about $250 weekly and 4 percent of the profit on each car sold. He had sold only one car for a commission of $50. Previously, he had worked on an occasional basis for his uncle driving a mowing tractor and earning $5.25 hourly; however, he had not worked over one week consecutively on this job. At the time of his injury, Petitioner’s average weekly wage was about $800. He was born on January 15, 1966. Petitioner completed his formal education when he finished high school. Petitioner is a certified pest-control technician. Except for some general construction and service work experience, Petitioner’s entire work history consists of his employment with Truly Nolen. The record does not disclose if Petitioner applied to Truly Nolen or its competitors for work as a termite supervisor or pest-control technician. Petitioner has not proved that he is physically unable to work in either position. To the contrary, it is likely that he could do the job as a pest-control technician, given his refusal to take the offer of such a job solely on monetary grounds and the relatively light physical demands of this work. In light of Petitioner’s age, education, work history, transferable skills, previous occupation, and injury, the job offered by the branch manager in January 1996 gave Petitioner a chance to regain as soon as practicable and as nearly as possible his pre-accident average weekly wage. Thus, the branch manager’s offer to take a pest-control route represented suitable gainful employment.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order denying Petitioner’s requests for training and education sponsored by the Division and attorneys' fees. DONE AND ENTERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Russell Schropp Henderson Franklin Post Office Box 280 Fort Myers, Florida 33902 Edward A. Dion General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast 303 Hartman Building Tallahassee, Florida 32399-2189
Findings Of Fact In early 1979, the Department of Administration, Division of Personnel, prepared for the Governor a document entitled Recommended Salaries and Benefits for Career Service Employees for the Biennium July 1, 1979, to June 30, 1981. The purpose of this document was to assist the Governor in making recommendations to the 1979 Legislature regarding salaries and benefits for the State's Career Service employees. Approximately one month after publication of its initial recommendations, the Department of Administration published a supplement to those recommendations to reflect the results of collective bargaining negotiations with various bargaining units and to clarify certain points. With respect to merit salary increases, it was recommended that all funds not distributed as guaranteed merit increases in accordance with specific collective bargaining agreements be "distributed at the discretion of management" to employees with six months satisfactory service as of September 1, 1980. For the supervisory bargaining unit of which all Petitioners are members, all merit funds were to be distributed at the discretion of management. The Governor's recommendations contained in the document prepared by the Department of Administration were furnished to legislators and all State agencies prior to adoption of the Appropriations Act. In 1979, in the Appropriations Act for the Biennium 1979-81, as supplemented in 1980 by the 1980 Supplemental General Appropriations Act, the Legislature appropriated certain funds to be used for merit salary increases for Career Service employees. These raises were to become effective September 1, 1980. Funds were allocated in a total dollar amount for each collective bargaining unit within each state agency. The Legislature, in appropriating funds for salary increases and benefits for Career Service employees, specifically provided that such funds were to be distributed in accordance with the Governor's recommendations. Ch. 79-212, Sec. 21, Laws of Florida. The Department of Environmental Regulation received merit increase monies for its Career Service employees within the following bargaining units: supervisory-professional, professional, administrative clerical, operational services, and managerial/confidential. Petitioners Leslee A. Williams, Sylvia E. Sakamoto, and Rosemary Bottcher are Career Service employees employed in the Bureau of Water Analysis, Division of Environmental Programs. Leslee Williams is a Microbiologist III. Sylvia Sakamoto and Rosemary Bottcher are Chemist III's. Petitioners are employees within the Supervsory/professional collective bargaining unit. On July 31, 1980, the Secretary of the Department of Administration sent a memorandum to all Department heads with attached instructions for implementation of salary increases for employees in all affected bargaining units, including the supervisory unit. The instructions for distribution of merit salary increases to employees in the supervisory unit provided that the distribution of funds to eligible employees was discretionary with management, subject only to a cap on the maximum amount any employee could receive. This cap of 10, 7.5, or 5 percent of an employee's salary is determined by the employee's official performance evaluation rating. With regard to "discretionary merit salary advancements", the instructions noted that: These increases are provided to reward current employees based upon their performance. These increases are intended to allow employees to progress within the salary range in recognition of their increased worth to the State as an employee. The proper implementation of merit salary advancements is critical to the State's ability to reward tie most competent, qualified and productive employees. While the funds are discretionary as to the actual amount any one employee may receive, management has no discretion as to whether the Funds may or may not be distributed. These instructions were received by DER in early August of 1980, and DER immediately began taking steps necessary to implement the salary increases in time for inclusion in employees' September paychecks. In August, 1980, the Secretary of the Department of Environmental Regulation authorized each of the directors of the three principal divisions within the Department (the Divisions of Environmental Programs, Environmental Permitting, and Administrative Services), as well as the offices of General Counsel and the Secretary, individually, to establish or determine the methods, standards for determining employee merit and employee performance and performance to be used within each division or office for identification of those Career Service employees eligible to receive a merit salary increase. By memorandum dated August 2, 1980 the Director of the Division of Environmental Programs requested that all Bureau Chiefs in his division and certain supervisors meet with him to establish a ranking of employees within the division to be used in determining the amount of merit salary increase each eligible employee would receive. This memorandum provided, in part, as follows: . . . We have available a certain amount of "discretionary" money which can be given as merit raises. This will be over and above those pay increases through pay adjustments or cost of living increases, which are mandated by the Legislature. The discretionary amounts are small; but they are significant enough that we should make every effort to insure fairness recognition of outstanding service and encouragement of those whom the Department needs to keep. The final decision on all increases will be mine alone, but the preliminary ranking and classification of the various persons will be done in collaboration with all of you. We will begin with the personnel evaluations. However, since grading standards for the evaluations differ among various supervisors, we will attempt to bring all evaluation ratings to comparable scales. We will then try to emphasize those qualities, both within the ratings and those not included in the particular categories, which most contribute to the mission of the Department. We must all try to eliminate our personal biases in this process and the biases inherent in the evaluation system. If we succeed, the raises will be both fair and perceived as fair and will be a help to Division and Department morale. I ask your complete cooperation in this process. (Emphasis added) On September 2, 1980, the Director of the Division of Environmental Programs sent a memorandum to all employees of the division explaining the process used in computing merit salary increases for division employees. The September 2, 1980, memorandum contained the following provisions: The raises were awarded based on relative scores given to each employee. This scoring was done by the Director, Deputy Director and Bureau Chiefs (together with independent office heads for those classes which contained their subordinates) in joint session. First, each employee's evaluation was considered and then related to that of ether employees in the class. The employee's other attributes and contribution to his program and the Department was then discussed. His immediate supervisor's rating tendencies were considered (and we, incidentally, gained a very good idea of how different were the different scoring scales used) and the supervisor was called and consulted if there was difficulty in reaching a consensus. In almost every case one or more of the Bureau Chiefs, other than the employee's own, had experience and opinions on that employee to share. We repeatedly examined each other on the possibility of bias and favoritism. Finally, the employee was given a weighted percentage score. Although some discussions were more protracted than others, complete consensus was reached in every case. The Director and Deputy Director then translated the relative scores into both the base salary and the dollars available within the class. Some small further subjective judgements were necessary because of rounding and some inexactness in the formula but they were extremely minor - no more than $1.00 per person and usually much less. The raises given reflect very closely the relative scores from the joint sessions. There is considerable agreement between the curve of the merit raises and the curve of the evaluations. They are far from congruent, however. Some employees with relatively high evaluations got no merit raises; others relatively low got substantial ones. In each case the discussions were very extensive and the decision was made only after all were convinced that an injustice would otherwise result. Such inflated and deflated evaluations will be the subject of much additional scrutiny in the coming year. Merit salary increases for all 192 Career Service employees within the Division of Environmental Programs were determined pursuant to the methods, standards for determining employee merit and employee performance, and procedures contained in the memoranda of August 25, 1980, and September 2, 1980. The three Division directors, the General Counsel, and the Secretary of DER each used different methods to award merit salary increases to employees in their respective offices. The method used by the Director of the Division of Environmental Programs to award merit salary increases for 1980 was different from the various methods used by DER in the past to distribute similar appropriations. Since at least 1975, DER has made a separate determination each year that funds appropriated for merit increases of the manner in which those funds would be distributed. A decision made one year was not prospectively applicable to future appropriations. Since at least 1975, the Department of Environmental Regulation has evaluated the job performance of its Career Service employees on an annual basis pursuant to procedures applicable to the entire Department. Currently, the Department follows the employee performance evaluation procedures contained in Section 3.2, Department of Environmental Regulation, Administrative Services Internal Management Policies and Procedures Manual ("ASIMPP") including exhibits attached thereto. These procedures and criteria were adopted by the Department pursuant to Rule 22A-9.02(1), Florida Administrative Code, and Section 110.201, Florida Statutes, but have never been adopted as "rules" through Section 120.54, Florida Statutes rulemaking proceedings. The policy of the Department, as stated in the ASIMPP, is to use performance evaluations ". . . to award or deny salary increases . . ." In 1976, 1977 and 1978, merit salary increases were awarded to career service employees in the Department based solely upon performance evaluations. In each of those years, the "merit" of employees was determined by the annual performance evaluations, but a differing method of computing the dollar amount was used for each year. However, within categories of employees having the same performance evaluation rating, the method of calculating the dollar amount was uniformly applied. These standards and procedures for awarding merit salary increases in 1976, 1977, and 1978 were in written form, were established by the Secretary of the Department, and were communicated to all employees. There were no merit raises in 1979. Since at least June 19, 1978, the Department of Environmental Regulation has also had in effect a written policy statement which provides in part: The personnel Rules and Regulations provide that merit/anniversary increases be based on performance evaluations Petitioners were given performance evaluations in the summer of 1980 pursuant to the procedures in Sec. 3.2, ASIMPP and each Petitioner was rated "above satisfactory." Petitioners each had at least six months continuous and satisfactory service on September 1, 1980, and were otherwise eligible to receive a merit salary increase on September 1, 1980, but were denied such a salary increase. Neither of the methods and procedures used by the Division of Environmental Programs to distribute merit salary increases to division employees for 1980, as outlined in the memoranda of August 25, 1980 and September 2, 1980, nor the methods used by the other two divisions and the General Counsel and Secretary were adopted through formal rulemaking in accordance with Section 120.54, Florida Statutes. In each case, the procedures used applied only to Career Service employees within that division or office who were eligible for a merit increase and were used only to determine the distribution of those funds appropriated by the Legislature for the biennium 1979-81. Counsel for Petitioners and Respondent stipulated that the methods used by the Division of Environmental Programs to determine merit salary increases affect the private interests of Petitioners, and further, that Petitioners have standing to bring this petition pursuant to Section 120.56, Florida Statutes. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact Since 1968 the Petitioner, Donald W. Hulmes has been attorney for the Broward Community College. Previously he was attorney for the Broward County Board of Public Instruction (School Board), having held this position since 1955. During the Petitioner's employment with the School Board he was a member of the State and County Officers and Employees Retirement System (SCOERS). In 1968 the college was separated from the School Board by the legislature, and became autonomous under its own Board of Trustees, which appointed the Petitioner as its college attorney. For four more years in this capacity, until 1972, the Petitioner continued to be enrolled as a member of SCOERS. The college's finances were examined on an annual basis by legislative auditors. As a result of these audits performed for fiscal years 1969-1970 and 1971-1972, the auditor commented adversely on the college's practice of processing the Petitioner's annual retainer as salary payments with applicable payroll deductions taken. When the Petitioner was employed by the college there was no change in his contract status relative to duties and responsibilities, and the college had continued to make retirement deductions for him the same as was done during his School Board employment. As a result of the adverse comments from the legislative auditor the college fiscal personnel considered whether the Petitioner's position was as an employee, or was contracted services. If the position of college attorney was to be on an employee basis, time reports would have to be maintained and other policies affecting employees would have to be adhered to. If the position was contracted services, compensation would have to be in a form other than salary payments. Based on these considerations, the college provided the Petitioner with a contract for one year with a stipulated retainer, and in 1972 the Petitioner was disenrolled from SCOERS. Alternatively, the college could have determined that the Petitioner's position was as an employee. Although the Petitioner was not formally notified of the action taken by the college, he and the college comptroller discussed the matter, and the Petitioner assumed he was going to have some problems. Subsequently, he noticed that his checks were a different color, and had different slots and blocks, but his secretary handled the deposit of the checks into his account, so little attention was paid to these changes, including the absence of a deduction for retirement. Sometime thereafter the Petitioner began to make inquiries of the college fiscal personnel relative to reentering the retirement system. However, no formal or written inquiry was made until 1978 when the Petitioner had been out of SCOERS for six years. During these years, and until 1979, the Petitioner's compensation arrangement with the college was by annual retainer for specified services, plus an hourly rate for special services. He has been and remains the senior partner of a law firm consisting of himself and four other attorneys. He is free to provide legal advice to and represent members of the public. This law firm maintains two offices, one in Hollywood and one in Fort Lauderdale, and the Petitioner has a private listing in the telephone directory. He has a $1,000 per month draw with his law firm, although he does not pay into the firm or contribute to its income substantially. When the Petitioner applied to get back into the retirement system, the college was given an Employment Relationship Questionnaire to complete, for the purpose of determining the facts relative to his eligibility. Among other information submitted by the college, it indicated that the Petitioner was engaged by the college on a part-time basis. In addition, in June of 1978, the president of the college analyzed the nature of the services rendered by the Petitioner as college attorney, and estimated that on a monthly basis he spent approximately 30 hours on routine and special issue work. Further, the Petitioner provides his own office space, library, secretarial assistance, and in his absence his law partner was available to advise the college, if necessary. Faculty members at the college have a 30 hour work week, and administrative staff personnel and other classified employees are required to work 37 1/2 hours per week. The Petitioner's relationship with the college does not require him to maintain any special working hours as other college employees are required to do. He is not subject to a pre-employment physical examination. He does not receive annual leave or sick leave. No written performance evaluations are prepared for the Petitioner, as is done for other college employees except the president. Accordingly, the Petitioner has not been a full-time employee of Broward Community College. In 1979 the college began making deductions from the Petitioner's payments as contributions to the Florida Retirement System, and these contributions were reported. As a result the Division of Retirement advised the Petitioner that he is not eligible for membership in the Florida Retirement System, and denied him reinstatement in SCOERS. Previously, in 1970, the Petitioner had rejected an opportunity to become a member of the Florida Retirement System. He has left his contributions of SCOERS on deposit. His contributions to the Florida Retirement System since 1979 are in the process of being refunded. Essentially, the Petitioner contends that he was disenrolled from membership in SCOERS by the college wrongfully, as a result of administrative error; the Respondent claims that there was no error because the Petitioner was not eligible for membership in the SCOERS retirement system, and does not meet the criteria for membership in the Florida Retirement System.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED, that the Petitioner, Donald W. Hulmes, be denied reinstatement in the State and County Officers and Employees Retirement System, and that he be denied membership in the Florida Retirement System. THIS RECOMMENDED ORDER entered on this 24th day of June, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1981. COPIES FURNISHED: M. Terry McNab, Esquire Post Office Box 12 Tallahassee, Florida 32302 Augustus D. Aikens, Jr., Esquire Division Attorney Division of Retirement Cedars Executive Center 2639 North ionroo Street Tallahassee, Florida 32303
Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. Contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco Mechanical Contractors, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour for regular time and $10.50 per hour for overtime. From January 1, 1978 until April 30, 1978, John W. Culp was employed as a plumber at the rate of $7.50 per hour for regular time and $11.25 per hour for overtime. While making $7.00 per hour, Culp was paid $3.07 per hour less than the prevailing wage for regular time hours worked and $4.60 less than the prevailing wage for overtime hours worked. During the period January 1, 1978 until April 30, 1978, Culp received $2.57 less than the prevailing wage for regular time hours worked and $3.95 less than the prevailing wage for overtime hours worked. The figures presented by the Respondent and those of the Petitioner do not agree concerning the number of hours worked. Exhibit 7 reflects that Culp worked a total of 856 hours at $7.00 per hour and 8 hours of overtime at $10.50 per hour. Exhibit 7 further reflects the Culp worked 683 hours at $7.50 per hour and 47.5 hours at $11.25 per hour. The amount Culp was underpaid prior to January 1 is equal to the sum of the regular hours worked times $3.07 and the overtime hours worked times $4.60 per hour. The amount Culp was underpaid subsequent to January 1, 1978, is equal to the sum of the number of regular hours worked times $2.57 and the number of overtime hours worked times $3.95. The amount that Culp was underpaid prior to January 1 is $2,664.72 and subsequent to January 1, $1,942.94 for a total of $4,607.66. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was filed within the time prescribed by statute. Pursuant to the provisions of Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is currently withholding $4,779.74 from Acco Mechanical Contractors, Inc. while awaiting the decision of this administrative hearing.
Conclusions Petitioner has established that he was hired by and worked for Acco, Inc. as a plumber and that he was paid $7.00 per hour from July 17, 1977 until January 1, 1978 and that he was paid $7.50 per hour from January 1, 1978 until April 30, 1978. The prevailing wage for plumbers on the Juvenile Detention Center project was $10.07 per hour. Petitioner John W. Culp is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the, prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employer be paid "not less than the prevailing wage". Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage rate for the total number of hours worked at a rate less than the prevailing wage. Therefore, the Petitioner is entitled to $4,383.23. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff, et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rate, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay to the Petitioner, from the amount it is withholding in this claim, the amount of $4,383.23 and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32301 Telephone No.: (904) 488-7396 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr., Esquire Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Luther J. Moore, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 Thomas A. Koval, Esquire Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 Stephen F. Dean, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter is order directing the contracting authority to pay the employee the sum of $4,607.66 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr. Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR JOHN W. CULP, Petitioner, vs. CASE NO. 78-1281 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978, in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: This cause was presented on a claim filed by John W. Culp against Acco, Inc. alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, John Culp, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour. From January 1, 1978 until April 30, 1978, Petitioner was employed as a plumber at the rate of $7.50 per hour. Exhibit No. 7, the Weekly Time Reports of John W. Culp, establish that Culp worked a total of 856 hours at the rate of $7.00 per hour and 8 hours at $10.50 per hour. Furthermore, the Reports establish that Culp worked 683 hours at the rate of $7.50 per hour and 47.5 hours at $11.25 per hour. Prior to January 1, 1978, the difference between what Petitioner was paid end the prevailing wage was $3.07. After January 1, 1978, the difference was $2.57. The total difference between what Petitioner was paid and the prevailing wage for the time Culp was employed by Acco, Inc. is equal to 856 hours multiplied by $3.07, plus 683 hours multiplied by $2.57. The total difference is $4,383.23. Petitioner has complied with the provision of Section 215.19(3)(a) 1 and 2, Florida Statutes, by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid. This affidavit was timely filed. Pursuant to Section 215.19, Florida Statutes, the Department of Health and Rehabilitative Services is withholding $4,779.74 from Acco, Inc. pending the outcome of this claim.
Findings Of Fact At all pertinent times, the Petitioner Fox was employed by the Department of Labor and Employment Security in Position Number 02076, class title, Unemployment Executive II. Petitioner's latest appointment to the Career Service was prior to July 1, 1972. Under the terms of the Governor's Recommendations for Implementation of the 1985-86 Fiscal Year Performance Incentive Increase, Petitioner's anniversary date was adjusted from October 30, 1985 to July 1, 1985. On July 25, 1985, the Petitioner was evaluated by his supervisors as "Exceeds Performance Standards." Petitioner qualified for and received a Performance Incentive Pay Increase, which advanced his base pay rate from $2,950.79 to $3,043.26 per month, the maximum for his class. The percentage increase equaled .03133737 of Petitioner's base salary. Petitioner received this increase without protest. No administrative, legal, or grievance action was filed by Petitioner challenging the propriety of his agency's calculation of the Performance Incentive Increase. On January 1, 1986, all Career Service pay ranges were increased pursuant to the Fiscal Year 1985-86 General Appropriations Act. This had the effect of increasing the maximum rate which could be paid to members of the Career Service System. As a result of the increase, Petitioner was once again below the maximum of the pay range. Petitioner's supervisor submitted an additional personnel action form, which sought an amount which would bring Petitioner's total performance incentive increase to five percent of his June 30, 1986, base salary. That increase equaled $55.07 per month for the months of January, 1986, through June, 1986. Plaintiff is, therefore, seeking a total additional salary increase of $330.42. At the time Petitioner received his July, 1985, pay increase, he was informed by certain Department of Labor and Employment Security officials that an additional performance incentive increase could be granted if the pay grade was subsequently adjusted and the maximum pay allowed for the class was increased. The Petitioner's supervisor within his agency apparently based this assumption on oral information which had been received from an unidentified individual within the Department of Administration. At the same time, the Bureau Chief of Classification and Pay within the Department informed agency personnel offices that such an increase was not authorized. By letter dated February 3, 1986, Don Bradley, Chief, Classification and Pay for the Department of Administration, officially advised the Department of Labor and Employment Security that the requested additional performance incentive increases could not be approved. Final Department of Administration action was taken by letter from Secretary Lambert to Secretary Wallace Orr dated June 20, 1986, which denied a special pay increase request in order to maintain fairness among all the departments. In anticipation of the adjustment to the maximum pay ranges, certain personnel officers within the agencies elected to postpone granting employee pay raises until after January 1, 1986. By doing so, they avoided running afoul of the Governor's Recommendation which states that "no employee shall be eligible to receive more than one merit salary advance during fiscal year 1985-1986."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's request for an A additional $330.42 salary increase be DENIED. DONE and ENTERED this 7th day of May, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1987. APPENDIX Petitioner's Proposed Findings of Fact numbered 1-9 have been accepted as modified. Respondent's Proposed Findings of Fact have been accepted, with the exception of those portions of the unnumbered paragraphs rejected as not being germane to this proceeding. COPIES FURNISHED: Gregg L. Fox 2509 Killarney Way Tallahassee, Florida 32308 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of unlawful employment practices by her employer because of her race and age.
Findings Of Fact Petitioner is a 28-year-old African-American female. Respondent operates one of the State’s largest psychiatric hospitals. In April 2004, Respondent had at least 3 openings for a full-time Secretary Specialist at different units of the hospital. In April 2004, Petitioner along with two other female applicants were contacted and asked if they were interested in being considered for three Secretary Specialist positions with Respondent. The positions’ duties involved, among other things, typing medical records and compiling reports on the units’ patients and recording, transcribing and disseminating all staff meetings held on these units. Petitioner and the two other women indicated that they would like to be considered for the positions. One of the women who applied for the positions was an older, white female who had worked at the hospital for at least 10 years. No evidence demonstrated the actual age of this older woman or how much older she was than Petitioner. The evidence also did not demonstrate if her work history extended beyond 10 years outside the hospital. The other applicant, like Petitioner, was a beginning employee at the hospital. Other than the fact she met the minimum qualifications for the positions, the evidence did not establish her race, age, or work experience. Petitioner’s application was not introduced into evidence. At the time, Petitioner had about 6 years of work experience as an office manager and /or an executive secretary. The experience does not appear to be in the medical or psychiatric field. As can be seen from a review of the evidence and pleadings in this case, Petitioner’s writing skills are very poor and are replete with poor grammar and incorrect word usage to the point of being almost incomprehensible. Therefore, the quality of her executive secretary skills are questionable. As part of her application packet, Petitioner submitted several educational/professional credentials to Respondent. The credentials consisted of certificates in the areas of Office Supervision II and III and Post Secondary Office Supervision and Administration. Petitioner claims that these credentials entitled her to a higher salary than she would have received as a beginning employee or at the least allowed her to negotiate for a higher salary. However, no evidence was offered that supported Petitioner’s contention that such credentials entitled her to a higher salary or that she lost her opportunity to negotiate for a higher salary. The fact that the position may have been advertised as “open-competitive” does not mean that an applicant is entitled to or will receive a higher salary offer. The classification only enables an employer or employee to negotiate a salary based on qualifications. The employer and employee are not required to negotiate and either may elect not to negotiate. Indeed, negotiation may be non-existent based on budget considerations and the availability of other applicants willing to work for less pay. At some point, an interview was scheduled for Petitioner by Deborah Joyce. In setting up the interview, Ms. Joyce advised Petitioner that the starting salary for the position was $766.52 every two weeks. Petitioner indicated that she wished to be interviewed for the positions. All three womens’ application packets were reviewed by a hiring committee. All three women were offered employment as Secretary Specialists at different units. Petitioner and the other beginning applicant were offered employment at $766.52 every 2 weeks. The older, white woman was allegedly offered employment at a higher salary than the two beginning employees. However, there was no evidence that demonstrated how much the older woman’s salary was, whether it differed from Petitioner’s and its relationship to the salary she had been receiving in her then current position at the hospital. Petitioner did not introduce into evidence the pay scale for the position to which she applied. Some evidence suggests that the offered salary was the beginning and lowest salary for that position. Petitioner testified that the offered salary was at the low-end of the scale for the position that she applied for. Her testimony in that regard is accepted. Petitioner was informed by telephone of the Respondent’s offer of employment to work on the unit known as Cypress Village. The telephone call was made by Lela Parker- Clark, a black female and the medical unit’s specialist (MUS). The unit’s treatment and rehabilitation director (UTRD) was Sateria Gunter, a black female. Ms. Gunter and Ms. Parker-Clark would be Petitioner’s supervisors. The evidence indicated that both women had been working on the unit for several years and apparently had done various routines and reports in the same manner for some time. No evidence was offered as to the actual age of Ms. Gunter or Ms. Parker-Clark, other than they were both older than Petitioner and had possibly worked their way up to their administrative positions from direct care staff. Because the offered salary was not what Petitioner desired, she inquired further of Ms. Parker-Clark about the salary. Petitioner learned that her educational credentials had been lost and possibly had not been reviewed by the committee. Ms. Gunter indicated that she would have the committee review its offer if Petitioner would fax her the documents. Petitioner faxed the documents to a fax machine at the hospital. It is unclear whether the documents were received and reviewed by the committee or whether the committee was made aware of Petitioner’s additional educational documents. The evidence conflicts on this point. At the time of the hearing, neither the original nor faxed documents were in Petitioner’s personnel file. Indeed, only copies of later-supplied documents that were specially marked by Petitioner are in Petitioner’s personnel file. In any event, the salary offer was not changed. No one from the committee testified at the hearing regarding the documents reviewed by the committee or otherwise made known to the committee. No evidence was offered that demonstrated that such added credentials would have made a difference in the salary offered to Petitioner. Petitioner offered no evidence that Respondent elected to negotiate any salaries with any of the people it hired as Secretary Specialists. The fact that a white, 10-year employee of Respondent may have been offered a higher salary than Petitioner does not demonstrate that the salary was negotiated or that Respondent otherwise discriminated against Petitioner based on her race or age since the employee in question was already an employee with more years of experience at the hospital. Without such evidence, it is impossible to determine whether the absence of the documents was deliberate or unintentional, motivated by Petitioner’s race or age or even caused an adverse impact in the conditions or terms of Petitioner’s employment. Ms. Gunter informed Petitioner that the position was still available at the original salary offer of $766.52. Instead of attempting to negotiate further by declining the offer, Petitioner accepted employment and began working at the unit on May 21, 2004. Petitioner accepted the offer because she needed the income. There was no evidence that demonstrated Petitioner, who is a competent adult, was somehow coerced into her decision to accept the offer by Respondent. In the beginning, the relationship between Ms. Gunter, Ms. Parker-Clark and Petitioner was reasonably good. However, once Petitioner began to question the manner in which Ms. Parker-Clark did things the relationship deteriorated. Ms. Parker-Clark became abrasive and, Petitioner claims, more strict regarding Petitioner’s leave than with co-workers. She would belittle Petitioner in front of co-workers. Ms. Parker- Clark had the security desk record when Petitioner arrived at work. Based on the recorded time, both women claimed Petitioner was falsifying her timesheet and forced her to change her claimed time on several occasions. Many of the accusations arose from the fact that Petitioner was often late because of difficulties with her daughter, who had learning disabilities. Additionally, Petitioner sometimes arrived early and sometimes stayed late; that, in Petitioner’s view, made up her time. However, per hospital policy, such early arrival or late stay was not credited unless pre-approved by Petitioner’s supervisor. Outside of Petitioner’s claims of forced time-sheet changes based on time she had to take to deal with her daughter’s disability or disallowed overtime, etc., there was no evidence that other similarly-situated employees were treated differently than Petitioner. In fact, the only testimony regarding Ms. Parker-Clark’s and Ms. Gunter’s treatment of other employees was that there were some employees they treated well and some employees they did not treat well and that there may have been ongoing “management problems” on the unit. There was no evidence that such treatment was based on the race or age of the individual employee. Petitioner assumes and asserts that she was entitled to family medical leave, credit for overtime for staying late or more flexible hours. However, she offers no proof that she was entitled to such. Without such evidence Petitioner cannot show that she has suffered an adverse impact in the terms or conditions of her employment. Petitioner also claims she received unwarranted disciplinary actions. Again there was no evidence offered that such discipline was unwarranted. Indeed Petitioner admits that actions she received written reprimands for occurred. Around September 28, 2004, relationships between Ms. Parker-Clark and Petitioner came to a head when Petitioner came to the conclusion that Ms. Parker-Clark had never placed her educational credentials in her personnel file. Petitioner based this conclusion on the fact that, while training herself to use the new computerized personnel system, Peoples First, adopted and, at the time, being implemented, by the State, she discovered that her educational credentials were not listed on the system. Petitioner was training herself because Ms. Parker– Clark refused to train her. Petitioner contacted the personnel office for the hospital and was told that her file was not in their office because it had been sent to Peoples First to be scanned into the system. Unfortunately, the Peoples First system is known for glitches and errors in its records. Petitioner met with Ms. Gunter and Ms. Parker-Clark in a very heated meeting to discuss the lack of information on the Peoples First system and her feelings that Ms. Parker-Clark had intentionally lost the educational documents. Petitioner also voiced her opinion that she was entitled to an increased salary based on her credentials. Petitioner was not satisfied with the response from Ms. Gunter in the meeting. Around October 5, 2004, Petitioner met with Ennis Harris, the assistant administrator of the hospital, over her “issues” with Ms. Parker-Clark and what she should do. Mr. Harris suggested she apply for a transfer to another unit. On October 7, 2004, Petitioner, applied for a transfer to the position of Internal Senior Clerk on another unit. He also indicated that he would approve flex-time for her if Petitioner requested it and that she might be entitled to leave under the Family Medical Leave Act. Around October 13, 2004, Petitioner requested flexible working hours. As promised, Mr. Ennis approved her schedule. At about the same time, Petitioner requested transfer to a Senior Clerk position on another unit. On October 18, 2004, Petitioner requested that her salary be increased by 16 1/2 percent and that she receive such increased pay from the beginning of her employment. There was no evidence that demonstrated the basis for a 16 1/2 percent increase or that such an increase was warranted. On October 21, 2004, the increase was denied by Ms. Gunter. On October 27, 2004, Petitioner grieved Ms. Gunter’s decision. Personnel policy requires that a grievance be filed within 14 days of the act that caused the grievance. The human resources manager returned the grievance without action because 14 days had passed since Petitioner began employment on May 21, 2004, and Petitioner had the opportunity to decline the offered salary if she so desired. On November 1, 2004, Petitioner’s request for transfer was declined because of personnel rules based on the Union contract with the State that prevented transfer of a probationary employee to a higher position. On November 10, 2004, Petitioner appealed the return of her grievance and appealed or grieved the denial of her requests for salary increase and transfer to the hospital administration. The denial was upheld. During this review, Ms. Gunter claimed that Petitioner’s educational/professional certificates had been reviewed by the committee and claimed that the documents in Petitioner’s file were the actual documents reviewed and considered. However, the documents were the certificates that had been specially marked by Petitioner and later placed in her file. Ms. Gunter was unaware of the special demarcation of the documents. Claims of dishonesty were now mutual. Eventually, Petitioner did not wish to deal with Ms. Parker-Clark, unless her job duties required such. Petitioner complained to various administrators of the facility often about her treatment on the unit. Mr. Harris told her that the salary issue was dead and all options to have her salary increased had been explored. On November 22, 2004, Petitioner submitted a letter of resignation at a future date not expected to go past December 13, 2004. In that letter, Petitioner requested overtime hours with pay to complete her job assignments. The same date, Ms. Gunter denied the requested overtime and requested Petitioner to supply a date certain for her resignation. On November 23, 2004, she filed complaints that Ms. Gunter and Ms. Parker-Clark discriminated against her based on her race and age with the hospital’s equal employment office and similar complaints at PERC. On December 7, 2004, Petitioner forwarded an e-mail to the hospital attorney that stated she was leaving early and did not know when she would be back because she was tired of the harassment she was receiving on the unit. Sometime after that e-mail, Petitioner met with the hospital attorney. The hospital did not want to lose Petitioner as an employee and in an effort to help Petitioner, on December 9, 2004, the administration transferred Petitioner to another unit where she has performed well. Even though Petitioner had been requesting a transfer, it is this transfer that Petitioner alleged as a discriminatory action by the hospital. On this point Petitioner’s claim of discrimination has no merit and was clearly not demonstrated by the evidence. Petitioner has also been approved for a promotion at a higher salary, but the promotion has not yet taken effect. The promotion has been on hold because the hospital administrator retired and his replacement had recently taken over prior to the hearing. No evidence demonstrated that the delay was due to any unlawful employment practice. There was no evidence offered regarding a paycheck discrepancy around December 10, 2004. Ultimately, Petitioner’s case rests on assumption and speculation about others’ intentions and terms of employment that she claims she was entitled to. The problem is that there was no or insufficient evidence offered to demonstrate such unlawful intentions or entitlement. Indeed, assuming that Petitioner’s treatment was unjustified, it is more likely that Ms. Gunter and Ms. Parker-Clark engaged in such treatment because Petitioner was a new employee who questioned the old way of doing things and did not hesitate to go around them when she felt a need to do so. Assumptions and speculations are not enough. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 16th day of September, 2005. COPIES FURNISHED: Viritti Jackson 2173 West 15th Street Jacksonville, Florida 32209 Scott D. Leemis, Esquire Northeast Florida State Hospital 7487 South State Road 121 Macclenny, Florida 32063 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 3239-9070 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Glen Markee can return to suitable gainful employment without further training and education.
Findings Of Fact Glen Markee, a 44-year-old male, was employed as a roofer by Sam Damm Roofing, Inc. in Port Richey, commencing in November 1992. Mr. Markee’s duties included lifting bundles of shingles weighing up to 90 pounds, tearing off roofing, and lifting tar kits weighing 100 pounds. On April 6, 1999, he sustained a right shoulder and cervical injury while lifting shingles and ripping out roof. The accident was accepted as compensable. Mr. Markee received medical treatment, and was eventually referred to Dr. Harold Colbassani, a neurosurgeon. Following an MRI, Dr. Colbassani diagnosed a right-sided disc herniation. Due to Mr. Markee’s apprehensions about surgery, a conservative course of treatment was attempted, including epidural injections and physical therapy. The conservative treatment proved ineffective, and Mr. Markee underwent a cervical diskectomy and fusion on January 27, 2000. Dr. Colbassani certified Mr. Markee at maximum medical improvement on July 5, 2000, with an impairment rating of seven percent. His restrictions include no lifting over 50 pounds, occasional lifting of 21 to 50 pounds, no repetitive bending, crouching, or stooping, and no reaching above shoulder level. After being certified at maximum medical improvement, Mr. Markee sought further treatment from a pain management physician, starting in October 2000 and continuing to the time of the hearing. Petitioner claims that this continuing treatment indicates that Mr. Markee has not reached maximum medical improvement and thus that his application for re- employment services was premature. Glen Ellis, a vocational consultant with Respondent and an expert in the field of vocational rehabilitation, evaluation and training, testified that Mr. Markee’s seeking pain relief would not necessarily mean that he had not reached maximum medical improvement for purposes of retraining. Mr. Ellis testified that if an employee is medically stable and in need of no further active treatment for the injury itself, the Division may go forward with a retraining program. Examples of medical instability cited by Mr. Ellis were the need for further surgery, incapacitation for significant periods of time, or taking medications which prevent the employee from driving or attending class. None of these problems applied to Mr. Markee’s seeking treatment for his chronic pain. Thus, Mr. Markee was medically stable for purposes of retraining. Mr. Markee did not return to work after his injury. He never formally approached Sam Damm Roofing about coming back to work, though he did have an informal conversation with the owner of the company, Sam Damm. Mr. Damm told Mr. Markee that he had no work for him consistent with his medical limitations. Mr. Markee is a high school graduate. His prior work experience was almost exclusively as a roofer. He has also done some carpentry and briefly worked as a factory laborer. Section 440.491, Florida Statutes, creates the re- employment services program and authorizes all recommended programs and expenditures to injured employees. The ultimate goal of that statute in regard to an injured worker is to return the worker to suitable gainful employment. "Suitable gainful employment" is defined to mean "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 earnings at the time of injury." Section 440.491(1)(g), Florida Statutes. At the time the Division approved Mr. Markee for retraining services, the general salary criterion established by rule was to restore the employee to at least 80 percent of his or her average weekly wages at the time of injury. Rule 38F-55.001(16), Florida Administrative Code (defined "underemployment" as employment in which the post-injury average weekly wage is less than 80 percent of his or her pre- injury average weekly wage). The Division has established a process to determine whether an individual merits re-employment services. The process begins with orientation. The employee is given a DWC- 23, which is the application for re-employment services. The employee is requested to sign the DWC-23 and to have the employer sign a section of the form that says it has no job available either modified or accommodated for the employee at this time. Shortly after orientation, the Division requests medical records from the carrier to determine the employee's restrictions. Once all the paperwork is received, one of the Division nurses reviews the medical records from the claimant's physician, the maximum medical improvement date, and permanent restrictions, work history, and education. The Division performs a transferable skills analysis, evaluating the claimant's educational background, hobbies, and interests to determine the best way to return the injured employee to work. In the effort to return the employee to suitable gainful employment, the Division considers three options. First, the Division determines whether there are any direct placement options for the employee with another employer. If this is not feasible, the next option is on-the-job training. If that is not a viable choice, the file goes to an independent evaluator to determine what, if any, retraining options are available to the employee. Once an injured worker is approved for retraining and education, the insurance carrier is obligated to pay temporary total rehabilitation benefits for at least 26 weeks, with an option to provide an additional 26 weeks for a maximum of 52 weeks of benefits while the injured employee is in retraining. Rehabilitation temporary total disability benefits are calculated by taking 66 2/3 percent of the claimant's average weekly wages 13 weeks prior to the claimant's date of accident. Mr. Markee followed the prescribed orientation steps with Mr. Ellis of the Division. Mr. Ellis then referred him to Nancy Drwal, a vocational evaluator who was accepted as an expert in vocational rehabilitation, training and evaluation. Mr. Ellis provided Ms. Drwal with background information describing Mr. Markee's accident, work history, medical restrictions and other relevant medical information. Ms. Drwal met with Mr. Markee on March 9, 2001, and gave Mr. Markee six tests over the course of five hours. The tests were designed to assess his intellectual, achievement, and aptitude levels. Among the tests Ms. Drwal administered was a transferable skills analysis to identify jobs that would be compatible with Mr. Markee's work history, education, capabilities, and functional limitations. This analysis revealed no transferable occupations for Mr. Markee. Ms. Drwal continued to search for some appropriate occupation short of retraining, because Mr. Markee was anxious to work and hesitant to enter a training program. Ms. Drwal testified that Mr. Markee's reluctance to enter a training program was not unusual for a person who has been out of school for 20 years and is not academically inclined. Despite the results of the transferable skills analysis, Ms. Drwal looked at the local markets for an appropriate job for Mr. Markee. Mr. Markee expressed an interest in locksmithing. Ms. Drwal contacted every locksmith in Pasco County, but could find none that were hiring or interested in on-the-job training for Mr. Markee. Ms. Drwal looked into security guard positions, because that occupation easily accommodates physical restrictions, but could not find a position close to Mr. Markee's average weekly wage of $530.65 per week, or $14.26 per hour. The security guard openings paid between $5.75 and $7.00 per hour, far short of 80 percent of Mr. Markee's pre-injury average weekly wage. Mr. Markee expressed an interest in working with animals. Ms. Drwal looked into positions with zoos and animal sanctuaries. These employers either had no positions, had experience requirements that Mr. Markee could not meet, or paid significantly less than his pre-injury average weekly wage. Ms. Drwal concluded that Mr. Markee would require retraining. She first suggested computer training, but upon investigation Mr. Markee found the scholastic requirements overwhelming. Ms. Drwal then suggested medical assistant school as more within the range of Mr. Markee's academic abilities and interests. Mr. Markee investigated the program and told Ms. Drwal that he thought he could do it. Ms. Drwal conducted a labor market survey to make sure there would be medical assistant jobs in the local market when Mr. Markee completed his training. In a labor market survey, Ms. Drwal contacts employers to ascertain that positions are available at the time of the survey, or that the employer has hired within the past six months and anticipates hiring again in the next six months. Ms. Drwal contacted five employers and determined that there would be jobs available and that the average starting salary was $10 per hour, ranging as high as $12 per hour. She determined that the job availability and salary made this an acceptable training program for Mr. Markee. Ms. Drwal determined that the duties of a medical assistant fell within Mr. Markee's medical restrictions. Medical assistants perform patient preparation, take vital signs, weigh patients, draw blood, and enter some patient information into the office computer. The job does not involve lifting. Ms. Drwal determined that Mr. Markee was a "very motivated" person and would be able to complete the program. The medical assistant school is not academically intense. The student must learn medical terminology, but the program lasts only 31 weeks and involves a hands-on internship at a doctor's office. Mr. Markee was approved for retraining in the medical assistant program at the Central Florida Institute in Palm Harbor. He commenced the program in April 2001. He has been a straight "A" student and at the time of the hearing was completing a 35-hour per week internship at the New Port Richey Medical Center. Based on Mr. Markee's transferable skills analysis, previous work history, previous educational background, and the results of testing done by the independent evaluator, the best way to return him to suitable gainful employment is through retraining. Petitioner failed to show that retraining Mr. Markee through the medical assistant program will not return him to suitable gainful employment. The record gives no indication that Petitioner ever informed the Division indicating whether it had suitable employment within Mr. Markee's restrictions. Mr. Markee's restrictions prevent him from returning to the occupation of a roofer. Mr. Markee appeared to have the capability to obtain a job. However, the Division's goal, as mandated by statute, is to assist him to obtain employment at or near his pre- injury average weekly earnings of $530.65.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered denying the relief requested by Petitioner. DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida. __________________________________ LAWRENCE P. STEVENSON 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 December, 2001. COPIES FURNISHED: Janet Poluse, Esquire Matusek, McKnight, Poluse and Cangro, P.A. Post Office Box 7729 St. Petersburg, Florida 33734-7729 Elana Jones, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 John H. Thompson, IV, Esquire John H. Thompson, IV, P.A. Post Office Box 13188 St. Petersburg, Florida 33733-3188 Mary B. Hooks, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Elizabeth Teegen, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
The Issue The issue is whether Petitioner is entitled to a vocational evaluation for formal training and education sponsored by the Division of Worker’s Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact On April 30, 1996, Petitioner herniated a disc while lifting materials in the course of his employment as an electrician with General Electric Contracting. He was working at the time as a lead electrician doing residential and commercial installations and repairs. Petitioner underwent low-back surgery about a year later. On May 21, 1997, the surgeon determined that Petitioner had reached maximum medical improvement. The surgeon assigned Petitioner a 9 percent impairment rating and restricted him to lifting up to 35 pounds occasionally, up to 20 pounds frequently, standing and walking four to six hours during an eight-hour day, and driving five to eight hours during an eight-hour day. The surgeon advised Petitioner to avoid bending, squatting, and crawling. Petitioner is 50 years old. He has a high school diploma. Apart from one year's additional coursework in business at a community college, Petitioner has no other formal education. At the time of his injury, Petitioner had been employed as an electrician at General Electric Contracting for six or seven years. After high school, Petitioner served in the U.S. Navy from 1966-70, specializing in weapons. After his honorable discharge, Petitioner worked for two years in route sales--the first year selling ice cream and the second year selling pet supplies. After these jobs, Petitioner began working as an electrician. Petitioner has since worked continuously as an electrician except for the period from 1975-78. During this time, Petitioner opened a sporting goods store in East Fort Myers devoted exclusively to hunting and fishing. Failing to obtain financing for his business, which was not very profitable, Petitioner tried to sell the store, but could obtain no more than the cost of the inventory. He then returned to work as an electrician. Due to his physical limitations occasioned by his work-related injury and surgery, Petitioner can no longer work as an electrician. At the time of his injury, Petitioner was earning an average weekly wage of $554.86. Petitioner has vigorously attempted to find suitable appropriate employment, given his past earnings and current physical limitations. Respondent has given him two job leads as a Code inspector. However, Petitioner failed to get the first job. His application for the second is still pending, but he has not been called for an interview in the six weeks since submitting his application. There is some question whether Petitioner can do the job, which may require bending, squatting, and lifting, but Petitioner has nonetheless pursued this opportunity enthusiastically. On July 9, 1997, Petitioner submitted a request for screening to determine his suitability for a vocational evaluation. Respondent conducted the screening and determined that Petitioner has sufficient transferable skills to allow him to return to suitable gainful employment without a vocational evaluation or vocational training or education. In defending this decision, Respondent's witnesses emphasize the negotiation and marketing skills that Petitioner has presumably developed in his long career as an electrician. However, there is no evidence that Petitioner has developed such skills in any of his prior employment. Respondent's witnesses also emphasize the managerial and bookkeeping skills that Petitioner has also presumably developed, but, again, the record does not reveal that Respondent developed marketable skills of these types in his prior employment. Besides the two leads as a Code inspector, the other leads that Respondent has supplied Petitioner are unsuitable due to physical demands or pay, require skills that Petitioner does not possess, are unavailable in Southwest Florida, or present little chance for employment for a person of Petitioner's education, age, and background. In satisfying his burden of proving entitlement to a vocational evaluation in order to obtain suitable gainful employment, Petitioner's months of good faith, but unsuccessful, job searching persuade more than Respondent's well-intentioned, but speculative or unsuitable, job leads. It is now time for Respondent to provide Petitioner with a vocational evaluation.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order granting Petitioner’s request for training and education sponsored by the Division. DONE AND ENTERED this 13th day of May, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902-2485 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Edward A. Dion, General Counsel Office of the General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue Whether City of Belleair Beach Treasurer Robert K. Hebden was an independent contractor or an employee of the city.
Findings Of Fact The Petitioner City of Belleair Beach (City) is a participating local agency of the Florida Retirement System (FRS) and is subject to the laws applicable to the FRS. The City began participating in the FRS through the adoption of City Ordinance 99 in 1973. The Respondent Division of Retirement (Division) is the state agency charged by statute with the administration of the FRS. On a date unspecified, the Division's Management Review Section audited the City as required by statute. Based on the audit, the Division concluded that Mr. Hebden was not an independent contractor, but was a part time employee of the City. The Division communicated this information to the City by letter of May 27, 1992. The Division's Enrollment Section, responsible for enrolling employees in the FRS, conducted an analysis of the materials obtained by the Management Review Section, and concurred in the initial employment status determination. By letter of October 11, 1993, the Director of the State Division of Retirement notified the City that the Division had determined Mr. Hebden to be have been an employee in a regularly established position for purposes of the FRS from July 1979 through February 1991, and that FRS contributions were due for that period. On October 15, 1993, Mr. Hebden signed an FRS application for service retirement. The application was filed with the FRS. Mr. Hebden completed the application on the suggestion of the Enrollment Section Administrator. Mr. Hebden considers himself to have worked for the City as an independent contractor and would not have filed an FRS application without the request by the enrollment administrator. In concluding that Mr. Hebden was an employee, the Division reviewed all materials furnished by the City. Such materials included copies of contracts, billing statements and IRS forms. At all times, the Division has been amenable to reviewing any additional documents submitted by the City. Beginning in 1972, and continuing to February of 1991, Robert K. Hebden provided various services to the City. Beginning in July 1979, Mr. Hebden served as the City Treasurer. The position of Belleair Beach City Treasurer is established by city ordinance. The position description for the City Treasurer sets forth duties as follows: The treasurer works on a daily basis primarily under the mayor's supervision but is ultimately accountable to the city council. Compiles operating and capital expense estimates for annual budget. Forecasts problem areas of income and expense and proposes possible solutions. Maintains general accounting system and appropriate operating cash balances. Submits to council a monthly detailed statement of revenue and disbursements in contrast with annual budget. Prepares for submission to council a detailed financial statement as of the end of each fiscal year. Invests surplus General Government Funds in conjunction with the Mayor or Deputy Mayor and recommends investment of Sewer Trust Funds in conjunction with the approved Trustee. Provides for payment of bonds and interest and maintains files for cancelled coupons and bonds. Maintains capital assets inventory including acquisition and disposition. Between July 1, 1979 and February 12, 1991, Mr. Hebden was the Belleair Beach City Treasurer. He performed the duties of the position description and such additional duties as were assigned at the discretion of the Mayor and Council. In February 1983, Mr. Hebden and the City entered into a written contract regarding his service as Treasurer. The initial contract was retroactive to October 1, 1982. Prior to this point, Mr. Hebden acted as City Treasurer under an oral agreement with the City officials. The February 2, 1983 contract identifies Mr. Hebden as "the Contractor." The contract is for the one year period of October 1, 1982 to September 30, 1983 and provides as follows: The Contractor will be allowed twelve (12) days of paid sick leave and at times mutually agreeable fifteen (15) days of vacation without adjustment to the monthly fee. Absence in excess of this amount will be adjusted on a prorata basis. The work week will be 8:30 A. M. to 12:30 P. M. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. Services will be reimbursed on a monthly basis at the rate of SEVEN HUNDRED DOLLARS ($700.00) per month, plus an allowance of SEVENTY DOLLARS ($70.00) for expenses upon receipt of a statement. This agreement may be extended beyond the original term of One (1) year upon such terms and conditions as the parties shall mutually agree between them. Beginning with the subsequent agreement dated July 14, 1983, all contracts identify Mr. Hebden as "the City Treasurer" rather than "the Contractor." The July 14, 1983 contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. The duties of the City Treasurer shall include but not be limited to: -compilation of current and capital expense estimates for the annual budget -maintenance of a general accounting system -submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget -preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be EIGHT HUNDRED THIRTY DOLLARS AND NO/100 ($830.00) per month. THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 10, 1984 contract for the one year period to September 30, 1985 is identical to the agreement of July 14, 1983 except that the retainer fee was increased to $900.00 monthly. The July 15, 1985 contract for the one year period to September 30, 1986 is similar to the agreement of September 10, 1984. The retainer fee was increased to $1100.00 monthly and paid leave was again included. The agreement provides as follows: ....In addition, the City Treasurer shall receive three work-weeks vacation annually (allowing for a base figure of 3 work-weeks for the current fiscal year) and twelve work-days sick leave annually (allowing for twelve work-days for the current fiscal year). THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall commence October 1, 1985, and shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 23, 1986 contract for the one year period to September 30, 1987 is substantially similar to the preceding contract, however, an amendment was made to the paid leave provisions. The agreement provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be ELEVEN HUNDRED THIRTY DOLLARS AND NO/100 ($1100.00) per month. In addition, the City Treasurer shall receive three work-weeks vacation annually and twelve work-days sick leave annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned. The August 3, 1987 contract for the one year period of October 1, 1987 to September 30, 1988 is substantially similar to the preceding contract except that the work hours were amended to 8:00 a.m. to 12:30 p.m. and monthly payment was increased to $1300.00. The September 12, 1988 contract for the one year period of October 1, 1988 to September 30, 1989 is substantially similar to the preceding contract except that monthly payment was increased to $1350.00. In 1989, some Council members questioned Mr. Hebden's performance and considered termination of his contract. The September 25, 1989 contract for the one year period of October 1, 1989 to September 30, 1990 is substantially similar to the preceding contract except that the agreement provides "for a six months performance evaluation." Apparently, the concerned Council members were satisfied with the review and the contract was again renewed. The September 10, 1990 contract reflected Mr. Hebden's intention to leave his position. The contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:00 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year * A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be [[THIRTEEN HUNDRED AND FIFTY DOLLARS AND NO/100 ($1350.00)]] <<FOURTEEN HUNDRED FIFTY DOLLARS AND NO/100 ($1450.00)>> per month. In addition, the City Treasurer shall receive [[three work-weeks vacation annually and twelve]] <<three>> work-days sick leave [[annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned.]] <<Annual leave earned through September 30, 1990 and not taken will be paid on completion of this contract.>> [[THIS AGREEMENT shall provide for a six months performance evaluation.]] [[THIS AGREEMENT shall be reviewed annually by the personnel committee of the City Council, the Mayor and the City Treasurer.]] THIS AGREEMENT shall commence October 1, 1985, and shall expire on <<December 31, 1990>> [[September 30 of each year unless renewed by Council prior to that time.]] THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. * Note: In the above quotation, language which has been added is within the <<>>; deleted language is within the [[]]. All the contracts identified herein were between the City and Mr. Hebden personally. Mr. Hebden signed the contracts. Except as otherwise stated herein, the terms of the contracts were negotiated between Mr. Hebden and the City. Mr. Hebden performed all the responsibilities of the contract personally. For a brief period, he was assisted by a man identified as "Mr. Denman," a person employed by the City. He hired no assistants. Mr. Hebden performed his responsibilities according to practices and procedures he created. He was not provided instructions by the City on how to perform his tasks. The City provided no training to Mr. Hebden. Prior to terminating his tenure as City Treasurer, Mr. Hebden trained his successor in the practices and procedures Mr. Hebden had developed. At all times during Mr. Hebden's employment with the City, he worked the hours specified by the contracts in his office at City Hall. Mr. Hebden testified that he could not recall how his office hours had been determined. The space was provided by the City. The responsibilities of Mr. Hebden's position required utilization of city records, and it was therefore appropriate for such tasks to be performed in an office at City Hall. All furnishings for the office and materials used in performing his tasks were provided by the City. During the period between July 1979 and February 1991, Mr. Hebden submitted to the City statements for payment. Generally, the statements were submitted on a monthly basis. Mr. Hebden had no risk of profit or loss based on any actions of the City. He had no personal investment in the City. Mr. Hebden was paid according to the terms of the contract. He did not receive additional remuneration for his appearance at or participation in Council meetings, work sessions or committee meetings as directed by the Council or Mayor. In the first written contract, Mr. Hebden received a payment for "expenses" in addition to the monthly remuneration. Additionally, Mr. Hebden was reimbursed for personal expenses related to City business use of his car and his boat. Although only one formal performance evaluation was completed during his service, the contracts provide for annual review, except for the final contract which terminated Mr. Hebden's service to the City. Upon said termination, Mr. Hebden was paid for the accrued annual leave. Under the terms of the contract, Mr. Hebden's services could be terminated without penalty upon thirty days notice by either party. Mr. Hebden did not advertise his services to the general public, because he was not interested in taking on additional work, however, for a time, he provided accounting consulting services to the Indian Rocks Fire Control District and was compensated for his work. He also provided volunteer services to the Church of the Isles. During the period relevant to this proceeding Mr. Hebden held no business or occupational licenses. For the years 1979 through 1982, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-NEC, the form used to report "Nonemployee Compensation." For the years 1983 through 1991, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-MISC, the form used to report "Miscellaneous Compensation." The City did not provide health or life insurance coverage to Mr. Hebden. The City did not pay federal social security or withholding taxes for Mr. Hebden. The City did not provide or pay workers compensation benefits or unemployment benefits for Mr. Hebden. The City did not pay retirement contributions to the FRS for Mr. Hebden.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order determining that as City Treasurer of the City of Belleair Beach from July 1979 through February 1991, Robert K. Hebden was an employee of the City, and as such was a compulsory member of the Florida Retirement System for which contributions from the City are due. DONE and RECOMMENDED this 21st day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1994. APPENDIX TO CASE NO. 93-6518 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3. Rejected, contrary to the greater weight of the evidence. Mr. Hebden submitted invoices for payment as early as July, 1979. 11. Rejected, not supported by greater weight of the evidence. Because Mr. Hebden developed his own procedures for performing the duties of the City Treasurer, and trained his successor in performing the tasks of City Treasurer, it is not possible to conclude that Mr. Hebden's services were "not essential to the success or continuation of the City's operation." Rejected, irrelevant. Rejected, contrary to greater weight of evidence. Mr. Hebden testified on direct examination that he could not recall who chose the work hours set forth by contract. All contracts specify the hours to be worked. As to leave time, the first contract provided that such leave could be used only "at times mutually agreeable...." Subsequent contracts required annual leave to be used in four hour increments. Rejected, contrary to greater weight of evidence. Mr. Hebden testified that some auto and boat expenses had been reimbursed. First contract and invoices for payment through September 30, 1982 include payment of sums for "expenses." Rejected, contrary to greater weight of evidence. The contracts specify standard hours of employment and require attendance at meetings as directed by the Mayor and Council. The Respondent's assertion that Mr. Hebden "could make a profit or suffer a loss" is unsupported by credible evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, as to employment status of Mr. Hebden's predecessor or successor as City Treasurer, irrelevant. 28, 30. Rejected, as to employment status of Mr. Hebden's successor as City Treasurer, irrelevant. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Thomas J Trask, Esquire Frazer, Hubbard, Brandt & Trask 595 Main Street Dunedin, Florida 34698 Jodi B. Jennings, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
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.
