The Issue May Petitioner make an application with Respondent for disability retirement benefits when he was already applied for and has received regular retirement payments?
Findings Of Fact Mr. Vernon Taylor Bell voluntarily terminated his employment with the Department of Legal Affairs on February 26, 1980. By that date he had accumulated 23.66 years of service for credit in the Florida Retirement System. After his termination Mr. Bell had a conference with a retirement benefits specialist, Ms. Taylor, who is an employee of Respondent. At Mr. Bell's request she gave him an estimate of his retirement benefits for a regular retirement. She did not discuss the benefits which a disabled retiree might receive. The testimony of Ms. Taylor and Mr. Bell is in conflict on whether or not she discussed disability retirement benefits with him. Ms. Taylor's testimony is accepted as being more credible because Mr. Bell was shown throughout his testimony to have a poor memory. Mr. Bell began to receive regular retirement benefits in the monthly amounts of $178.32 on May 30, 1980. Since that date he has continued to receive and accept regular retirement payments. Petitioner has cashed or deposited his first benefit check. If Mr. Bell were to be granted disability retirement benefits rather than regular retirement benefits, his monthly payment would be substantially increased. Petitioner did not present credible evidence that he was misinformed or mislead by Respondent about the relative advantages to him in electing to apply for regular retirement as opposed to applying for disability benefits. On August 26, 1980, Mr. Bell wrote a letter to Mr. Andrew M. McMullian III, who is the State Retirement Director. Mr. Bell stated that he had been given incorrect information about the disability benefits he might be eligible for. He requested that he be allowed to make an application as a disabled retiree. On October 1, 1980, Mr. McMullian responded to Mr. Bell in a letter which states in part: We have reviewed your retirement account and have determined the information provided to you by this office was correct regarding your retirement eligibility. We regret if there was any misunderstanding on your part re- garding disability retirement; however, we cannot honor your request to be retired with disability at this late date, because you applied for regular retirement which was approved for you effective April 1, 1980. Your initial monthly benefit was $178.32 and your July 1980 benefit payment contained a cost-of-living increase, thus your current monthly benefit is $179.73. The Florida Retirement System law requires certification by two licensed physicians in Florida that one is totally and permanently disabled and unable to render any useful and efficient work before this agency can approve an employee for retirement with disability. Apparently, you made no attempt to retire with disability, other than discussing the matter in general with us, and according to our records, you made no application for disability retirement. Further, a retiree is not allowed by law to change his type of re- tirement once he begins drawing monthly re- tirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State Retirement Director enter a Final Order authorizing Mr. Bell is submit an application for disability retirement benefits. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1982. COPIES FURNISHED: Silas R. Eubanks, Esquire 103 North Gadsden Street Post Office Box 4266 Tallahassee, Florida 32303 William Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Daniel C. Brown, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether deceased retiree's prior selection of Option One retirement benefit pay-out and his receipt and negotiation of retirement several checks should now be set aside, due to his wife's alleged forgery of her signature on the Spousal Acknowledgement (Form FR-11).
Findings Of Fact 1. Irvin M. Carpenter was born November 16, 1934, and died of cancer on November 18, 1997. Mr. Carpenter was employed by the Hillsborough County Aviation Authority as a police officer on September 10, 1984, and attained the rank of police sergeant at the time of his retirement. Mr. Carpenter was a member of the Florida Retirement System. 2. On January 20, 1991, Irvin M. Carpenter and Susan Ann Prescott were married. Susan Ann Carpenter is now, and has been at all time pertinent to these proceeding, employed by the Hillsborough County Aviation Authority as a police officer. Susan Carpenter is a member of the Florida Retirement System. 3. In October of 1996, Irvin Carpenter and Susan Carpenter separated and continued to live separately. Dissolution of marriage proceedings were initiated but was not finalized at the time of Irvin Carpenter's death in November 1997. At all times pertinent to these proceedings, Irvin Carpenter and Susan Ann Carpenter were husband and wife. 4. On July 8, 1997, Irvin Carpenter executed a Florida Retirement System form styled "Application for Service Retirement" (Form FR-11). This form provides the retiree with information pertaining to the four options by which his retirement benefits can be paid. One full page of the form provides an explanation of each option. By use of this form, Irvin Carpenter selected Option One retirement benefit payout plan. The explanation of Option One on Form FR-11 is as follows: Option 1: A monthly benefit payable for my lifetime. Upon my death, the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. 5. The FR-11 also contained the following information in bold lettering: THIS SECTION MUST BE COMPLETED IF YOU SELECT OPTION 1 OR 2 MARRIED YES[ ] NO [ ] IF YES, YOUR SPOUSE MUST SIGN BELOW: SPOUSAL ACKNOWLEDGEMENT : I, (Signature) Susan A. Carpenter,’ being the spouse of the above named member, acknowledges that the member has elected either Option 1 or 2. (Signature Irvin Carpenter 11-27-96 Signature of Spouse Date If your spouse does not sign, you must attach a signed statement explaining why your spouse did not acknowledge your selection. 6. The "yes" or "no" blocks requesting marriage status were blank on the FR-11 submitted by the retiree to the Agency. The Spousal Acknowledgement block contained the signature of "Susan Ann Carpenter." Susan Carpenter alleged this signature to be a forgery. 7. The form FPR-11 also contained the following statement in capital letters: I UNDERSTAND I MUST TERMINATE ALL EMPLOYMENT WITH FRS EMPLOYERS TO RECEIVE A RETIREMENT BENEFIT UNDER CHAPTER 121, FLORIDA STATUTES. I ALSO UNDERSTAND THAT I CANNOT ADD ADDITIONAL SERVICE, CHANGE OPTIONS, OR CHANGE MY TYPE OF RETIREMENT (REGULAR, DISABILITY AND EARLY) ONCE MY RETIREMENT BECOMES FINAL. MY RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED. 8. Between the date of his retirement and the date of his death, Irvin Carpenter received, cashed, or deposited a minimum of three retirement checks from the Florida Retirement System, pursuant to his selection of Option One benefit payout plan. 9. After the death of Mr. Carpenter, the Agency, by letter dated November 24, 1997, addressed to: FAMILY OF IRVIN M. CARPENTER, 3602 W. Tampa Circle, Tampa, Florida 33629, informed the family of the retirement benefit due beneficiaries for November and the income tax deduction therefrom. 10. By letter to the Agency dated July 13, 2000, Susan Carpenter stated: My Husband, Irvin M. Carpenter, DOB 11/16/34, SSN 263-42-0146, retired from the Tampa International Airport Police Department on 07/31/1997. At the time of his retirement, we were separated but still Married. He passed away less than three months later in November 1997. I inquired as to any benefits and informed by the Hillsborough County Aviation Authority, the parent organization of the Tampa International Airport Police Department, that he had changed his beneficiary to his daughter, Anita Carpenter. Just recently, I became aware of the Florida Retirement System provisions concerning retirement options. I ama police officer with the Tampa International Airport Police Department and these matters were covered in a pre-retirement briefing conducted by Human Resources. It is my understanding that if you are married and select option 1 or 2, the spouse must acknowledge that selection in writing. Since I had not signed any such acknowledgement, it occurred to me that my deceased husband's remaining options both provide for the joint annuitant. I posed this question to the HCAA Human Resources and was informed that my deceased husband did not retire. The Department announced his retirement, his name was added to the plaque listing retired officers and Department personnel files indicate a retirement date of 07/31/1999. I questioned my police captain and Chief of Police and both of them were emphatic that my husband retired on 07/31/1999. With my superiors providing information contrary to Human Resources, I have some doubt as to the status of my deceased husband with regards to the Florida Retirement System. Please confirm the status of Irvin M. Carpenter. Did he retire from FRS? If not, what was his status at the time he passed away? I am sure you understand the significance of my determining the correct status. Thank you for any assistance you can provide. 11. The Agency denied Susan Carpenter's request to void Irvin Carpenter's selection of Option One retirement pay-out. The Agency's letter of November 15, 2000, asserted the position that the selection cannot be changed since the retirement checks were cashed or deposited and cited the following portions of Section 121.091(6) (a), Florida Statutes: "The spouse of any member who elects to receive the benefit provided under subparagraph 1. or subparagraph 2. shall be notified of and shall acknowledge any such election." The law does not require the spouse to agree with the members' retirement option selection. The Form FR-11, Application for Service Retirement, submitted by Irvin Carpenter included Susan Carpenter's signature acknowledging that she was aware of the Option 1 selection. We receive numerous applications monthly and we do not investigate to determine if each signature is authentic. Although Mrs. Carpenter contends that her signature was forged, once a member cashes or deposits a check the option selection cannot be changed. The statutes do not require the spouse to agree with the members option selection, only to be made aware. Your request to void the Option 1 selection is denied. 12. Susan Carpenter denies having signed the Form FR-11, Application for Service Retirement submitted by Irvin Carpenter. Susan Carpenter alleges that the signature, "Susan Ann Carpenter," appearing on the Form FR-11 is a forgery. 13. During the final hearing and in the presence of the undersigned, Susan Carpenter signed "Susan A. Carpenter" three times, Petitioner's Exhibit F. At the request of the undersigned Susan Carpenter signed "Susan Ann Carpenter" once. A review of the four signature samples provided by Susan Carpenter, the sample signature, "Susan Ann Carpenter," proved to the satisfaction of the undersigned evidence of the genuineness of the written signature in dispute. Accordingly, and as a finding of fact, the Form FR-11 signature "Susan Ann Carpenter" is not a forgery. 14. Susan Carpenter's assertion that the Agency is under legal obligation to contact each spouse or otherwise verify the signature of each spouse on the Form FR-11ls received in the Agency's normal course of business is without foundation in law and in fact. 15. Only the circuit court has jurisdiction and authority in dissolution of marriage cases to enter final orders determining property rights of marital assets. Petitioner proffered no such order as evidence. Accordingly, all testimony and evidence based on alleged spousal rights and entitlements pursuant to Chapter 61, Florida Statutes, are not considered
Conclusions For Petitioner: Scott W. Fitzpatrick, Esquire Southeast Building, Suite 1500 St. Petersburg, Florida 33703 For Respondent: Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building Cc 2639 North Monroe Street Tallahassee, Florida 32399-1560
Recommendation Based on the foregoing Findings of Fact an Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Susan Carpenter's request to change the retirement option 13 selected by Mr. Irvin Carpenter, including benefits due, and denying all such other relief. lo& DONE AND ENTERED this = day of July, 2001, in Tallahassee, Leon County, Florida. 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 J2% day of July, 2001.
The Issue Whether Petitioner's application for disability retirement benefits should be reinstated.
Findings Of Fact Petitioner Joyce Layton is a member of the Florida Retirement System. In November 2002, Ms. Layton submitted an application for disability retirement benefits to the Division. The application was not notarized and was incomplete. Several documents were needed to process the application. By letter dated December 10, 2002, the Division wrote Ms. Layton acknowledging receipt of the disability application and requesting additional information. Enclosed with the letter were two blank FR-13b forms (Physician's Statement Forms), which were necessary to complete the application. Ms. Layton did not respond to the December 10, 2002, letter. The Division mailed another request on January 13, 2003, again, including two blank FR-13b forms with the letter. Ms. Layton did not respond to the January 13, 2003, letter. On February 17, 2003, the Division mailed a third request for information to Ms. Layton. Blank FR-13b forms were also included with this letter. Ms. Layton did not respond to the February 17, 2003, letter. The Division mailed a fourth request to Ms. Layton on March 24, 2003, again, requesting information necessary to complete her application for disability retirement benefits. After the Division did not receive a response to its previous letters, it sent a letter dated April 15, 2003, by certified mail, to Ms. Layton advising her that she had 21 days from the date of the letter to submit the necessary information or her application would be cancelled. Ms. Layton did not respond to this letter. Finally, the Division sent a letter dated June 3, 2003, by certified mail, to Ms. Layton notifying her that her disability application was cancelled and giving her 21 days to request a hearing. She did receive this letter, and this timely appeal followed. The applicant is responsible for ensuring the Division receives the information necessary to process an application for disability retirement benefits. Ms. Layton did not provide the necessary information.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Management Services, Division of Retirement, issue a final order denying the request of Petitioner, Joyce E. Layton, to reinstate her disability retirement application. DONE AND ENTERED this 16th day of June, 2004, in Tallahassee, Leon County, Florida. S 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 16th day of June, 2004. COPIES FURNISHED: Thomas E. Wright, Esquire Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Joyce E. Layton 5980 Boyette Road Wesley Chapel, Florida 33544 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominquez, General Counsel Department of Management Services 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Petitioner's request for retirement credit should be approved.
Findings Of Fact Petitioner previously worked for the Sheriff's Office for DeSoto County, Florida. It is undisputed that the Sheriff's Office is a qualified Florida Retirement System ("FRS") employer and that Petitioner was, during all times relevant hereto, an FRS eligible employee. In the instant case, it is undisputed that in October 2006, Petitioner sustained a work-related injury while in the course and scope of her employment with the Sheriff's Office. Petitioner, from the time of her injury through approximately September 11, 2007, received temporary total disability workers' compensation benefits for her employment- related injuries. The precise dates when these benefits were received by Petitioner are not at issue in the instant dispute. On September 12, 2007, Petitioner returned to work at the Sheriff's Office with light-duty work limitations. Also on this date, Petitioner resumed receiving payroll wages from the Sheriff's Office. Petitioner continued to receive temporary partial disability wage payments through December 2008 and received workers' compensation medical benefits through October 2010. When Petitioner returned to work on September 12, 2007, she was still receiving medical treatment from the workers' compensation physician and attended regular sessions with the physician throughout the duration of her employment with the Sheriff's Office. The visits to the workers' compensation physician often occurred during times when the Sheriff's Office scheduled Petitioner to work, thus, resulting in her absence from work on these days. The Sheriff's Office terminated Petitioner's employment on December 12, 2007. Between the dates of September 12, 2007, and December 12, 2007, Petitioner was on the Sheriff's Office payroll and received wages as follows: For the period September 23, 2007, through October 6, 2007, she received payroll wages for 14 days; For the period October 7, 2007, through October 20, 2007, she received payroll wages for five days; and For the period October 21, 2007, through December 12, 2007, she received payroll wages for 14 days. No evidence was presented at the hearing explaining Petitioner's work schedule for the period September 13, 2007, through October 5, 2007. Between the dates of September 12, 2007, and December 12, 2007, Petitioner worked and received payroll wages from the Sheriff's Office for a total of 34 days. Although the 34 days that Petitioner worked were dispersed throughout the months of September, October, November, and December, Petitioner, nevertheless, received a paycheck from the Sheriff's Office for wages for each pay period following her return to work. There was no testimony offered at the hearing as to the total number of days that Petitioner was scheduled to work between September 12, 2007, and December 12, 2007. However, Petitioner testified that any scheduled work days that she missed during this period occurred as a result of her having to attend medical appointments with the workers' compensation physician. Respondent offered no evidence to the contrary as to this point. Given the severity of Petitioner's work-related injury, which apparently resulted in her being away from work for nearly a year, coupled with the fact that she continued to receive workers' compensation medical benefits through October 2010 (some four years after the date of her injury), the undersigned accepts as credible Petitioner's testimony that any scheduled work days that she missed between September 12, 2007, and December 12, 2007, resulted from her having to attend medical appointments with the workers' compensation physician. On April 4, 2008, Petitioner submitted correspondence to the Division and stated therein the following: Sir, I am writing this email in regards to my retirement. Under the florida [sic] retirement system, a member is entitled to retirement credit for periods of eligible workman [sic] comp[ensation]. The member must return to FRS covered employment for one month. Creditable workman [sic] comp[ensation] includes all periods that workman [sic] comp[ensation] are made. FRS employers are required by Section 121.125, Florida Statutes, and Section 60S-2012, Florida Administrative Code, to report the period covered by workman [sic] comp[ensation] on the monthly retirement report. D.C.S.O. stated I worked intermittently but where is it written in the Florida State Statutes or Administrative Code, how many days during the month you are allowed to miss and it would not be credible service or considered a break in service. [sic] Sir, I was still active [sic] employed with D.C.S.O. upon returning to work on Sept[ember] 12, 2007. The days I missed was [sic] due to medical appointmentts [sic] for my workman's [sic] comp[ensation] injury I sustained at D.C.S.O. I always provided documentation from the physician. I was not terminated until December 13, 2007 when Capt. McClure of D.C.S.O. called me at 8:21 A.M. [sic] on my scheduled day off. The three months I was allowed to work and the period on workman [sic] comp[ensation] should be credible service towards retirement. Sir, my question is when the other employees at D.C.S.O. take off more than a couple of days, during the month, for various reasons, without medical documentation[,] do[es] it count for credible service towards retirement or is it a break in service. [sic] On April 7, 2008, Doug Cherry, on behalf of the Division, responded to Petitioner's inquiry of April 4, 2008, and stated the following: Ms. Leonard, as I explained in our phone conversation, for periods of workers' compensation (temporary partial or temporary total) to be eligible for retirement credit there must be a return to active employment for one complete calendar month. The attached letter from the Sheriff of DeSoto County shows that from your scheduled date of return in September 2007, your employment was not active for the required month. This letter states you worked intermittently until your termination of employment in December 2007. To satisfy the one calendar month of active work, you needed to be consistently working through October 31, 2007. You indicated in our conversation that the information from the Sheriff was incorrect. If so, you would need to contact that office to resolve any discrepancy. I [have] also attached the appropriate Florida Statute (121.125) and the Florida Administrative Code (60S-2.012) which states [sic] this requirement. The law does not provide for exceptions or a combination of active and non-active employment during the one calendar month. Regarding your question about active members taking off days during the month, the requirements for earning service credit are different than the eligibility requirement for periods of workers' [sic] compensation. In your own account, you did earn credit for the months of September, October, November and December 2007 for the time you did work and earn salary. However, as stated above, for the period of workers' compensation to be creditable for retirement, the requirement is active employment for the full calendar month, not to earn service credit after such period. You also indicated that you were going to provide your attorney with this information. If your attorney would like to give me a call (850-488-9623), I will be glad to discuss this issue with him or her. I hope this information will help clarify this issue for you. On January 7, 2011, Respondent wrote Petitioner and informed her of the following: Dear Ms. Leonard: This will respond to your request for retirement credit for the period of time you received Workers' Compensation (WC), that was submitted to the State Board of Administration (SBA). Because this is an issue of creditable service, the SBA forwarded the request to the Division of Retirement since the Division is the proper agency to address such an issue. Information you and your agency provided indicates that you were out on WC October 2006 through September 2007 at which time your employer, the DeSoto County Sheriff's Office, sent you a letter dated September 6, 2007 requiring you to return to work within two weeks or be terminated from employment. The Division has not received any documentation from the Workers' Compensation carrier to substantiate the actual periods of WC or the date maximum medical improvement was reached. Therefore, this letter cannot address periods of possible eligibility for retirement credit but will address whether your employment from September 2007 met the return to work requirement for such eligibility. The Sherriff's [sic] office provided us with documentation of your time worked in September, October, November, and December 2007. During these months, you worked intermittently and did not have a full calendar month of active employment before your employment was terminated by your employer on December 12, 2007. * * * You did not consistently work during any of those calendar months until your employment was terminated by your employer on December 12, 2007. Therefore, starting in September 2007, you did not meet the return to actively performing service requirement of the above provision to establish eligibility for possible retirement credit. Petitioner's failure to return to active employment status was the only reason given by the agency when denying Petitioner's claim. Andy Snuggs has worked as a benefits administrator for the Division for approximately the last 20 years. The Division offered, and the undersigned accepted, Mr. Snuggs as an expert in matters related to the Act. Mr. Snuggs testified that in the exercise of the agency's discretion, the agency defines the phrase "active employment," as it relates to section 121.125, to mean that an employee must work each scheduled work day in a regularly established position for at least one calendar month following the employee's return to work and that no allowances are made for any absences, excused or otherwise. Mr. Snuggs did not offer any testimony explaining why the Division selected the particular definition that it did for the term "active."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order determining that Petitioner, Irene Leonard, met the return-to-work requirements necessary to receive retirement credit for workers' compensation payment periods. DONE AND ENTERED this 8th day of September, 2011, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2011.
Findings Of Fact Having listened to the testimony and considered the exhibits presented in this cause, it is found as follows: Since 1964, Petitioner has been employed by the State of Florida, Department of Transportation. His duties consist of operating a tractor pulling a rotary mower which cuts grass on the rights of way of primary and interstate highways. Exhibits 2, 3 and 4. Prior to 1970, Petitioner was a member of the State and County Officers and Employees Retirement System, under which he was not covered for in line of duty disability retirement benefits. In 1967, while employed by the State of Florida, Department of Transportation, Petitioner injured his lower back and left leg when a tractor fell off the back of a lowboy trailer. Exhibits 1, 3, 4 and 11. In 1970, Petitioner transferred from the State and County Officers and Employees Retirement System to the Florida Retirement System (FRS). Exhibit 17. During his regular working hours in March of 1974, Petitioner again injured his back while moving road material. Exhibits 1, 3, 4, 8 and 13. On October 31, 1974, Petitioner applied for disability retirement on the basis of the March of 1974 injury. Exhibit 1. Mr. W. W. Ray, Engineer II with the Department of Transportation, completed a "Statement of Disability by Employer" form on October 21, 1974, answering affirmatively the question of whether petitioner was, prior to his alleged disability, able to perform all of the duties of his position fully and completely. It was further stated by Mr. Ray that petitioner "has been very good employee during his employment. Had worked up to lead worker in his mowing crew." Mr. Ray concluded that "most any job which we have would require a certain amount of working with hand tools and stooping over or standing for long periods of time which could be painful for persons with back problems." Exhibit 2. Two Florida licensed physicians submitted Florida Retirement System Physician's Reports. Form FR-13b. Dr. W. J. Newcomb stated that Petitioner "had strained his back and aggravated the degenerative arthritic condition that existed in his back." He had no "definite indication of proof that the original injury of 1966 [sic] or the subsequent injury of 1974 caused his degenerated condition." Dr. Newcomb felt "it was just probably aggravated by the related accidents." It was opined that Petitioner could do the duties of his occupation in a protected manner, but he would have chronic difficulty with his back. The performance of Petitioner's duties would produce pain because of his current illness or injury. Exhibit 3. Dr. Howard T. Currie opined that Petitioner was unable to, perform any of the duties of his occupation because of his current illness or injury. Exhibit 4. On June 5, 1975, a letter was sent to Petitioner by Administrator, Robert L. Kennedy, Jr., under the signature of David W. Ragsdale, Supervisor, Disability Determination Unit. This letter notified Petitioner that the State Retirement Director was unable to approve his application for in line of duty disability retirement benefits "[s]ince your injury is an aggravation of a preexisting condition and since your initial injury occurred prior to the Florida Retirement System..." However, it was determined that Petitioner did meet the requirements for regular disability retirement as described in F.S. 121.091(4)(b) Exhibit A. In accordance with F.S. Chapter 120, the Petitioner filed a petition requesting a hearing and the Respondent requested the Division of Administrative Hearings to conduct the hearing.
Recommendation Based upon the above findings of fact and conclusions of law, it is my recommendation that Petitioner be awarded the greater benefits allowable for a member totally and permanently disabled in line of duty. Respectfully submitted and entered this 9th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George Ralph Miller, Esquire P.0. Box 112 DeFuniak Springs, Florida 32433 L. Keith Pafford, Esquire Division of Retirement 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue in this case is whether Petitioner’s husband’s selection of Option 1 for his pension plan benefits could be changed.
Findings Of Fact Mrs. Renaud, who is deaf, was married to Mr. Renaud for approximately 40 years. Mr. Renaud was employed by the State of Florida as a correctional officer at all times relevant hereto. He entered the State retirement program (in the pension plan) in November 1994. Mr. Renaud was in the “special risk” category of retirement class based on his position as a correctional officer. On October 24, 2013, Mr. Renaud signed and submitted a “Florida Retirement System Pension Plan Application for Service Retirement” form to the Department, indicating his intent to retire. The application was signed and notarized; it designated Mrs. Renaud as the sole beneficiary of his retirement benefits. On the same day, Mr. Renaud signed an “Option Selection” form, wherein he designated which of four payment options he wanted to utilize for payment of his retirement income. He selected Option 1, which states: A monthly benefit payable for my lifetime. Upon my death the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. The form also contains the following statement: “I understand that I must terminate all employment with FRS employers to receive a retirement benefit under Chapter 121, Florida Statutes. I also understand that I cannot add service, change options or change my type of retirement . . . once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited or when my Deferred Retirement Option Program (DROP) participation begins.” The option selection form was signed by Mr. Renaud and notarized by a certified notary public. Inasmuch as Mr. Renaud selected Option 1, it was necessary that he and his designated beneficiary (Mrs. Renaud) also fill out form SA-1, the “Spousal Acknowledgement” form. On the acknowledgement form, Mr. Renaud indicated that he was married. Mrs. Renaud then signed the “spousal acknowledgement” portion of the form. The acknowledgement statement included this statement: “I, Vivian Renaud, being the spouse of the above named member [Mr. Renaud], acknowledge that the member has selected either Option 1 or 2.” Option 2 provides for continued benefits during the retiring person’s lifetime. However, benefits to the person’s spouse will continue for only a 10-year period. If the retiring person dies within the first 10 years of retirement, the spouse would only receive benefits for the balance of the 10-year period starting at the retirement date. The benefits under Option 2 are, therefore, limited in nature. The state retirement system requires a person selecting Option 1 or Option 2 to have their spouse acknowledge that selection choice because those benefits have finite ending dates, whereas retirement benefits under the other options continue as long as either the retiree or his/her beneficiary is living. By letter dated October 30, 2013, the Department acknowledged receipt of Mr. Renaud’s retirement application. The letter referenced the date the application was received (October 24, 2013) and the option Mr. Renaud had selected (Option 1). The letter was mailed to Mr. Renaud’s address of record, the same address he listed in his retirement application. The letter was sent to Mr. Renaud some 30 days before the first retirement benefit check was deposited in his account. Mrs. Renaud does not remember seeing the letter, but inasmuch as it was addressed to Mr. Renaud, her recollection of its receipt is not relevant. After Mr. Renaud’s death, his family found numerous un-opened letters in his car; the acknowledgement letter from the Department could well have been in that group. Mr. Renaud retired on November 1, 2013. His first payment of retirement benefits was transferred to his bank by way of electronic fund transfer, commonly referred to as direct deposit, on November 27, 2013. The gross amount of his monthly retirement benefit was $1,987.85; the net amount was $1,937.75 after $30.09 had been deducted for taxes. At that time, Mr. Renaud had not signed form W4P, the form which showed how many dependents the retiree was claiming for tax purposes. After later filling out that form (in which he indicated he would prefer to file as “single” for tax purposes), his monthly net benefit was reduced to about $1,735. Mr. Renaud received a direct deposit of retirement benefits on December 31, 2013; on January 31, 2014; and again on February 28, 2014. Mr. Renaud passed away on March 26, 2014, only five months after commencing his retirement. In accordance with the provisions of Option 1, Mr. Renaud’s retirement benefits ceased at that time. His beneficiary was entitled to payment for the entire month that he expired, but was not to be provided any further retirement benefits. Thus, a final payment was deposited in Mr. Renaud’s account on March 31, 2014. Mrs. Renaud was provided notice of the cessation of retirement benefits due to Mr. Renaud’s death. She timely filed a protest, seeking to have the payment of benefits reinstated. The Department denied her request, resulting in the instant matter. It is clear from the evidence that Mr. Renaud selected Option 1, Mrs. Renaud acknowledged that Mr. Renaud had selected either Option 1 or Option 2, and that retirement benefits were directly deposited to Mr. Renaud’s bank account for several months. Mr. and Mrs. Renaud’s signatures were duly notarized and have a presumption of legitimacy. Mrs. Renaud disagrees as to whether Mr. Renaud’s selection of Option 1 was legitimate, legal, or proper under the circumstances as she views them. First, Mrs. Renaud contends that Mr. Renaud was not mentally well at the time he signed the option selection form. The basis for her contention is that Mr. Renaud had experienced some seizure-related behavior during the year prior to signing the form. He had driven his car north on US Highway 301 one day in July 2012, “heading to work,” but ended up in Georgia without remembering why or how he got there. He later apparently lost his driver’s license because of the seizures (although the testimony on that issue was not clear).1/ Mr. Renaud worked for approximately 15 more months after his inexplicable drive to Georgia. Mrs. Renaud also argued that Mr. Renaud’s signatures on the three different forms he signed on October 24, 2013, were not similar to each other, indicating in her mind that he was having some sort of medical or psychological difficulty at that time. Inasmuch as there could have been any number of reasons the signatures were different (whether he was in a hurry, what base existed under the paperwork, etc.), there is insufficient evidence to determine why the signatures did not match. Mrs. Renaud’s testimony regarding the signatures is not persuasive. Ed Renaud said Mr. Renaud had been forced to retire due to his medical condition, i.e., that he had lost his driver’s license due to having seizures and the Department of Corrections would not let him work if he could not drive. However, Ed Renaud also said Mr. Renaud was able to continue working even when he was “forced” to retire. Again, the testimony on these facts was not clear. Mrs. Renaud said she should have been provided an interpreter on the day she signed the acknowledgement form. She did not state whether she requested an interpreter or whether the agency employee who provided her the form was aware of her disability.2/ Again, no one from Mr. Renaud’s employer, the Department of Corrections, testified at final hearing as to what happened on the day the forms were signed. Mrs. Renaud stated that she could read and write English, so she knew what she was signing.3/ She did claim to be confused as to whether her husband had selected Option 1 or Option 2, but candidly admitted that Mr. Renaud never told her one way or the other which option he had chosen. He only told her that he would “continue to provide for her in the future.” She believed the amount which was to be deposited in their account each month under Option 2 would be approximately $1900. The first check was in that approximate amount (due to the fact that Mr. Renaud had not established the amount of taxes to be deducted from his check at that time). The next five checks were in a lesser amount, approximately $1700. There is no evidence that Mrs. Renaud questioned the amount of the later checks. However, once the first check had been deposited in Mr. Renaud’s bank account, he would not have been allowed to change his option anyway. Lastly, Mrs. Renaud said her husband’s medical and mental condition was not conducive to making the option selection in October 2013. However, there was no competent evidence to support her claim. There was no direct testimony as to Mr. Renaud’s condition on the day he signed, nor as to whether he was or was not capable of understanding what he was signing. The only statement about his condition that day was that he wanted to park the car far enough away from the building that his co-workers could not see that Mrs. Renaud had driven the car. Ed Renaud also pointed out the issue of Mr. Renaud’s three signatures that day looking different from each other, but his lay opinion is not evidence upon which a finding of fact can be made as to Mr. Renaud’s mental condition. On October 24, 2013, Mr. Renaud had not been adjudged mentally incapacitated and no guardian had been appointed. Ed Renaud said that Mr. Renaud still believed he could perform his work assignments at that time and did not want to retire. But, other than his wife, no one provided any evidence that Mr. Renaud did not understand what he was signing. Mrs. Renaud, however, could not say which option he had selected because he never told her. Her subsequent presumption that Mr. Renaud did not intend to choose Option 1 is not persuasive. It should be noted that selection of Option 1 by Mr. Renaud set his average pre-tax monthly benefit at around $1,900.00; had he chosen Option 2, the benefit would have been around $1,700. Thus, there was incentive to “roll the dice” and select Option 1, hoping that he would survive long enough to provide for his wife. In this case, sadly, that gamble did not pay off. The facts of this case are sad in that Mr. Renaud had every intention of providing for his wife financially as long as she lived. However, he either made a mistake when he selected his payment option or he attempted to tempt fate and hope for the best. In either case, once he made his selection and began receiving benefits, the die was cast. Based upon the facts as presented, there is no basis for overturning the Department’s denial of Mrs. Renaud’s requested amendment of the payment option.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services denying Petitioner's request for entitlement to her husband’s retirement benefits following his untimely death. DONE AND ENTERED this 24th day of June, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2015.
Findings Of Fact Petitioner, Timothy Green (Green), was born on April 19, 1941. Green was employed by Manatee County as a Highway Maintenance Technician on March 26, 1966. As a Highway Maintenance Technician, Green cleared ditches, brush and culverts. He also installed storm drainage pipe and operated chain saws and related tools. On September 24, 1984, Green was terminated from his job because of his inability to perform his assigned duties. Green referred to his termination as a "retirement." Having been promoted to Highway Maintenance Technician II, Green was earning $1,016.01 per month gross pay at the time he was terminated. He had accumulated 18.40 years of creditable service under the Florida Retirement System (FRS). Green is unable to read and has had no formal schooling other than the attendance of what he describes as "opportunity classes all his life." Green has not been found by any court to be incompetent to handle his personal affairs and generally paid his personal bills through money orders he purchased at convenience stores. However, Green's mental capabilities and ability to communicate are obviously quite limited, and his more complicated personal affairs were handled by his mother and sister. On September 28, 1984, Green sought out and met with Mr. A1 Chandler, Records Manager for Manatee County, at Chandler's office. Green thought that Manatee County already had "retired" him because of his disability and just wanted to get his retirement benefits. He did not understand the various optional benefits available to him as a member of the FRS. Green was able to communicate to Chandler only that he wanted to get all his money from retirement, or words to that effect. Chandler interpreted those words to mean that Green wanted to withdraw his contributions to the system. Based on his general familiarity with the FRS, Chandler discouraged Green from doing what he believed Green wanted to do (i.e.. withdraw his contributions from the system). Chandler believed intuitively that Green should not withdraw his contributions because he had accumulated 18.40 years of creditable service under the FRS. Chandler understood that Green's years of creditable service would entitle him to favorable benefits upon normal retirement at age 62. He therefore advised Green to wait and not to withdraw the contributions. Green, who never clearly understood the difference between getting his money (or benefits) out of the retirement system and withdrawing his contributions to the retirement system, decided that he did not want to wait as Chandler advised. Accordingly, Chandler gave Green a form to request a refund of his contributions to the FRS, and Green signed the form. The Request For Refund Form FRS-M81 Green signed contains the following information above his signature: TO THE DIVISION OF RETIREMENT: I hereby make application for refund of my accumulated contributions in the Florida Retirement Systems. I do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement Systems. However, Green could not read the refund language. He did not think there was any reason to ask Chandler to read it to him, and Chandler did not read it or explain it to him. Neither Chandler nor anyone else fully explained to Green what optional benefits he might be entitled to as a member of the Florida Retirement System other than to wait until normal retirement or withdraw his contributions. Specifically, neither Chandler nor anyone else explained to Green that his request for refund of his accumulated contributions would eliminate his right to apply for disability retirement benefits. In fact, on that same day, September 28, 1984, Green began completing an application for disability retirement benefits. On October 2, 1984, Green's Statement Of Disability By Employer was received by Manatee County's Personnel Office. The form was completed by Green's former immediate supervisors. On October 3, 1984, Green's Request For A Refund Form FRS-M81 was mailed to Respondent, Department of Administration, Division of Retirement (Division) by Manatee County. Sometime between October 18, 1984 and November 20, 1984, Green's completed Florida Retirement System Application For Disability Retirement, with his Statement Disability By Employer, was sent to and received by the Division. On October 29, 1984 the Division sent Green the refund of his accumulated contributions totaling $1,686.52. Until Green received the refund, he expected to receive monthly checks. When he received the refund, Green realized for the first time that he would not be receiving monthly checks and that his lump sum check would be in the amount of only $1,686.52. Green never had any actual intent to relinquish his right to apply for disability retirement benefits from the FRS.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent Department of Administration, Division of Retirement: (1) enter a final order granting the Petition For Formal Proceedings in this case and determining that Petitioner, Timothy Green, has not waived his right to apply for disability retirement benefits: and (2) process the application of Petitioner, Timothy Green, for disability retirement benefits. RECOMMENDED this 4th day of October, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Office Division of Administrative Hearings 309 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1985.
The Issue Whether the effective date of Petitioner's retirement should be changed from May 1, 2002, to February 23, 2000, or, in the alternative, August 23, 2000, as requested by Petitioner.1
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole,2 the following findings of fact are made: Petitioner is a retired member of the Florida Retirement System, who turned 62 years of age earlier this year. He worked for the State of Florida for approximately 11 and a half years. He last worked for the State of Florida in February of 1983. On May 2, 1994, the Division received the following written inquiry, dated April 11, 1994, from Petitioner: I was employed by the state from June 1971 until February 1983. Please advise me when I would be eligible to receive retirement benefits and approximately how much my monthly benefits would be. Your assistance in this matter is greatly appreciated. The Division responded to Petitioner's inquiry by sending Petitioner two "Estimates of Retirement Benefit," one based on a retirement date of May 1, 1994 (hereinafter referred to as the "First Estimate") and the other based on a "deferred retirement at age 62" (hereinafter referred to as the "Second Estimate"), along with a pamphlet entitled, "Preparing to Retire" (hereinafter referred to as the "Pamphlet"). The First Estimate contained the following "comments" (at the bottom of the page): To retain a retirement date of 5/1/94, you must complete and return the enclosed application for service retirement, Form FR- 11, within thirty days of the date this estimate was mailed. The Second Estimate contained the following "comments" (at the bottom of the page): This estimate is based on a deferred retirement at age 62. Refer to the enclosed deferred retirement memorandum, DR-1, for additional information. The Pamphlet read, in pertinent part, as follows: If you are preparing to retire, you should take certain steps to ensure there will be no loss of benefits to you. Following are some suggestions. * * * 3. Apply For Retirement Benefits. Three to six months before your retirement complete an application for retirement, Form FR-11, which is available from either your personnel office or the Division of Retirement. Your personnel office must complete part 2 of the Form FR-11 and then they will forward the application to the Division. The Division will acknowledge receipt of your application for benefits and advise you of anything else needed to complete your application. * * * Effective Retirement Date- Your effective date of retirement is determined by your termination date and the date the Division receives your retirement application. You may make application for retirement within 6 months prior to your employment termination date. If your retirement application is received by the Division prior to termination of employment or within 30 calendar days thereafter, the effective date of the retirement will be the first day of the month following receipt of your application by the Division. You will not receive retroactive benefits for the months prior to the effective date of retirement. Remember, your application can be placed on file and any of the other requirements (such as option selection, birth date verification, payment of amount due your account, etc.) met at a later date. Petitioner did not "complete and return the enclosed application for service retirement." Petitioner next contacted the Division in April of 2002, this time by telephone. During this telephone conversation, he was advised that he could apply for retirement immediately. Petitioner requested a "Florida Retirement System Application for Service Retirement" form from the Division. Upon receiving it, he filled it out and sent the completed form to the Division. The Division received the completed form on April 26, 2002. On April 29, 2002, the Division sent Petitioner a letter "acknowledging receipt of [his] Application for Service Retirement" and advising him that his effective retirement date was "05/2002." In or around December of 2002, after receiving several monthly retirement payments from the Division, Petitioner requested that his retirement date be made retroactive to 1994 because he was not adequately advised by the Division, in 1994, that he was then eligible, upon proper application, to receive retirement benefits. By letter dated February 5, 2003, the Division advised Petitioner that it was unable to grant his request. By letter dated March 6, 2003, Petitioner "appeal[ed]" the Division's decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order denying Petitioner's request that the effective date of his retirement be changed. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2003.
The Issue The issue for determination is whether the Florida Retirement System's retirement benefit option selected by Petitioner's deceased son should be changed from Option 1 to Option 2.
Findings Of Fact Ms. Kerr is the mother of the late Mr. Kerr. Mr. Kerr was employed by the Broward County Sheriff's Office (BSO) from January 2, 1990 through September 28, 2004. Mr. Kerr was a detective, hereinafter referred to as Det. Kerr. As a result of being an employee of the BSO, Det. Kerr was a member of the Florida Retirement System (FRS). During his employment, BSO, not Det. Kerr, made contributions to the FRS for his benefit. Retirement is the agency charged with the responsibility of administering the FRS. In complying with its duties, FRS publishes and provides an informational handbook and forms regarding retirement issues to its FRS members. FRS' staff also provide counseling to FRS members who inquire about FRS issues. A website is also maintained by FRS for its members to inquire about FRS issues and obtain information about retirement. On July 29, 2004, Det. Kerr completed an Application for Disability Retirement (Application), which was signed and notarized. The Application indicated, among other things, that he was applying for regular disability benefits and that Dr. Garry Friedberg was one of his treating physicians. Det. Kerr designated Ms. Kerr as his primary beneficiary on the Application. On August 2, 2004, Retirement received the completed application. Det. Kerr had over 16 years of creditable service, and he was, therefore, vested as a Special Risk member of the FRS and eligible for retirement benefits. Retirement acknowledged receipt of the documents needed to make a determination on Det. Kerr's disability retirement application. Also, Retirement advised him that, if his disability retirement application was approved, further documents would be required before he could be placed on the retirement payroll. One of the additional documents requested by Retirement was Form FRS-11o, which was FRS' Option Selection Form for its members. FRS-11o must be completed before retirement benefits can be paid. FRS-11o notices the member of four different options for payment of retirement benefits and contains a narrative describing the effect of the selection of each of the four options. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years, but, if the retiree dies before the end of the 10 years, the benefit is paid to the surviving beneficiary for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the retiree and beneficiary. Option 4 provides a reduced benefit for the lifetime of the retiree and beneficiary, which benefit is reduced by 33 1/3 percent upon the death of either. By letter dated August 19, 2004, Retirement advised Det. Kerr that his application for disability retirement was approved. The letter further advised him, among other things, of other documents that he had to submit, including a completed FRS-11o, before he could be placed on the retirement payroll. By letter dated August 23, 2004, Retirement advised Det. Kerr of his estimated monthly disability retirement benefits under Option 1 ($2,364.84) and Option 2 ($2,189.13). Insufficient information was available to Retirement to calculate the estimated monthly disability retirement benefits under Options 3 and 4, so none were provided. The letter further advised Det. Kerr as to what was required for Retirement to calculate monthly estimates for Options 3 and 4. Additionally, the August 23rd letter, enclosed a blank FRS-11o for Det. Kerr to complete and return. Furthermore, the letter included an informational document, entitled "What Retirement Option Should You Choose?," regarding making his option selection. This informational document is a standard document included by Retirement, with Retirement's estimates of disability retirement benefits. As to changing an option choice, the document provides in pertinent part: Once you cash or deposit a benefit payment, or begin the Deferred Retirement Option Program (DROP), your [option] selection cannot be changed. Therefore, it is important to carefully study your personal circumstances before [your] decision. Regarding Option 2, the document provided in pertinent part: [T]his option would be particularly appropriate if you are in ill health and your future physical condition is uncertain at the time of retirement since independent children, other heirs, charities, organizations, or your estate or trust can be designated as beneficiaries for Option 2. The document invites FRS members to contact Retirement with any questions. No evidence was presented to demonstrate the Det. Kerr contacted Retirement regarding questions as to the options. On August 27, 2004, Det. Kerr completed and had notarized FRS-11o. FRS-11o reflected, among other things, the following: the selection of Option 1 by an "X" and being circled; and his marital status as being not married. The language describing Option 1 next to the selection was as follows: A monthly benefit payable for my lifetime. Upon my death, the monthly benefit will stop and my beneficiary will receive only a refund of any contributions I have paid which are in excess of the amount I have received in benefits. This option does not provide a continuing benefit to my beneficiary. Also, on FRS-11o was Option 2. The language describing Option 2 next to the selection was as follows: A reduced monthly benefit payable for my lifetime. If I die before receiving 120 monthly payments, my designated beneficiary will receive a monthly benefit in the same amount as I was receiving until the monthly benefit payments to both of us equal 120 monthly payments. No further benefits are then payable. On September 1, 2004, Retirement received Det. Kerr's FRS-11o, on which Option 1 was selected and which was properly completed, signed, and notarized. It is undisputed that Det. Kerr's FRS-11o met all requirements as to being in a status of completion. Typically, FRS-11o is the only indication as to a member's wishes regarding his or her option selection. According to Retirement, usually, the disability retirement application is completed prior to receiving an estimate of benefits, and, therefore, it is not uncommon for an FRS member to designate a primary beneficiary and later select Option 1 after reviewing his or her estimate of benefits. According to Retirement, only a member or someone acting on his or her behalf, such as a legal guardian or attorney-in-fact, can make a retirement option selection for the member. No evidence was presented that Det. Kerr, himself, requested a change to his selection of Option 1. On September 28, Det. Kerr resigned from the BSO. October 1, 2004, was established as Det. Kerr's effective disability retirement date. Det. Kerr died on October 20, 2004, less than a month after resigning, without receiving his first disability retirement benefit payment. At the time of his death, Det. Kerr was not married and had no children. Further, no parent was his legal guardian or dependent upon him for support. Det. Kerr's circumstances surrounding his option selection do not place his situation in the usual or typical category of FRS members referred to above by Retirement. Det. Kerr was suffering from AIDS. His symptoms first appeared in 1995. He was being treated by Garry Friedberg, M.D., a physician whose specialty was infectious diseases. As Det. Kerr's treating physician, on July 26, 2004, (approximately three months before Det. Kerr's death) Dr. Friedberg completed a "Disability Insurance - Attending Physician's Statement" form, regarding Det. Kerr's medical condition. The form contained several questions, including those as to diagnosis, prognosis, and mental and cognitive limitations. Dr. Friedberg diagnosed Det. Kerr with the end- stage of AIDS, which included wasting, assistance with activities of daily living, 12 to 15 loose stools per day, and pain in his stomach. Dr. Friedberg determined Det. Kerr's prognosis as terminal. Dr. Friedberg described Det. Kerr's mental and cognitive limitations as poor memory, difficulty concentrating, and inattentiveness. Question 5.c. of the form asked whether Det. Kerr was competent to endorse checks and direct the use of proceeds, to which Dr. Friedberg checked the yes box. It is undisputed that Det. Kerry had a close, loving- relationship with his mother and nephews. Det. Kerr's mother testified as to her son's desires and wishes for his retirement benefits. The undersigned finds her testimony credible. As her son's health deteriorated, Det. Kerr made her co-owner of his home in order for the home to become hers at his death. Det. Kerr had a loving relationship with his nephews and he wanted to make sure that their education would be paid-for through his retirement benefits. Det. Kerr informed his mother that he designated her as the beneficiary of his disability retirement plan so that she could keep his house and pay for the education of his nephews. In a letter dated May 18, 2005, Det. Kerr's healthcare providers gave insight into his medical condition and his intent regarding his disability benefits. The undersigned finds the letter persuasive. Among other things, they indicate that they were Det. Kerr's healthcare providers for several years and that, throughout 2004, Det. Kerr was administered opium to help control his chronic wasting diarrhea and administered opioid- based analgesics for chronic pain. Det. Kerr made it clear to his healthcare providers that his intent was to provide financially for his family at the event of his death. Without question, they insist that the narcotic regimen in Det. Kerr's treatment, caused him to mistakenly mark Option 1, which was the opposite of and completely contrary to the whole intent of what he wanted to do with his disability benefits. Furthermore, they indicate that Det. Kerr intended to check Option 2 in that it would provide for Det. Kerr's family as Det. Kerr had intended. One of Dr. Friedberg's clerical employees, John Carriere, notarized the option selection form at Dr. Friedberg's office for Det. Kerr on August 27, 2004. At that time, the employee had known Det. Kerr for approximately five years and knew what Det. Kerr's intentions were towards his (Det. Kerr's) family, concurring that Det. Kerr wanted his disability retirement benefits to provide for his (Det. Kerr's) mother and nephews. The employee observed that on that day Det. Kerr had lost considerable weight, was sweating, and was not looking well. The undersigned finds the clerical employee's testimony persuasive. Det. Kerr was friends with Robert Brown for 16 years. Mr. Brown is a certified financial planner but was not Det. Kerr's financial planner. The undersigned finds Mr. Brown's testimony credible. Mr. Brown was well aware that Det. Kerr wanted to make sure that his (Det. Kerr's) mother and nephews were taken care of with his disability retirement benefits. Det. Kerr sought advice from his friend regarding the disability retirement benefits. Mr. Brown and Det. Kerr met with the BSO's human resource counselor to discuss the different options available. Det. Kerr knew that he was dying, and he decided upon Option 2 because only it provided the benefits that he wanted for his mother and nephews upon his death. On August 27, 2004, Det. Kerr was at Dr. Friedberg's office and was completing FRS-11o (the option selection form), and he called Mr. Brown, who was busy at work. Det. Kerr requested Mr. Brown to remind him which option number to select. Mr. Brown requested Det. Kerr to call him after working-hours, but Det. Kerr insisted that Mr. Brown talk with him then and provide the requested information. Mr. Brown, not recalling the option number that had been previously determined to be selected but recalling only what the selection provided, informed Det. Kerr that the option decided upon was the one that left the money to his (Det. Kerr's) mother for ten years. Det. Kerr yelled back that he knew what the selection provided that he wanted, but now he only wanted the option number. Mr. Brown requested Det. Kerr to wait a few hours and call him back; but Det. Kerr did not. Later, when Mr. Brown and Det. Kerr were together, Mr. Brown asked Det. Kerr whether he needed any assistance with the retirement paperwork. Det. Kerr responded in the negative, indicating that he had finished the paperwork by himself and convincingly stating that the family was protected. Mr. Brown asked to review the form, but Det. Kerr did not have the form with him. With Det. Kerr so convincingly expressing himself that the family was protected, Mr. Brown did not think of the retirement paperwork again. A finding of fact is made that Det. Kerr at all times had decided on Option 2 and at all times had intended to check Option 2. A finding of fact is made that the medical evidence is sufficient to demonstrate that, due to Det. Kerr's terminal illness and the medications given to him, his mental capacity to make an informed choice at the time that he selected Option 1 was affected; and that he mistakenly checked Option 1, whereas Option 2 would have protected his family as he had intended, which intent had never wavered or changed. By letter dated December 6, 2004, Retirement advised Det. Kerr's family that his estate was entitled to the disability retirement benefits due for the month of October 2004. Additionally, included with the letter was a "Joint Annuitant Information" document, and the family was advised that, if Det. Kerr had a survivor who qualified as a joint annuitant, a monthly benefit may be payable to such person. A joint annuitant was mentioned in several of the letters from Retirement to Det. Kerr, prior to his death, regarding his disability retirement. In a letter dated July 30, 2004, related to completing FRS-11o, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Application, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in a letter dated August 10, 2004, again, a joint annuitant is mentioned only in relationship to Options 3 and 4 and calculations therefor; in two letters dated August 19, 2004, a joint annuitant is again mentioned only in relationship to Options 3 and 4 and calculations therefor; in the Estimate of Retirement Benefit document, a joint annuitant is mentioned only as it relates to Options 3 and 4; in an Estimate of Disability Retirement Benefits document, dated August 23, 2004, a joint annuitant is mentioned only as to Options 3 and 4 and calculations therefor; in a document provided to Det. Kerr by Retirement, entitled "What Retirement Option Should You Choose?" a joint annuitant is mentioned as it relates to all of the available options; in FRS-11o, a joint annuitant is mentioned only for Options 3 and 4; and in a letter dated December 6, 2004, after Det. Kerr's death, Retirement refers to a joint annuitant and includes information regarding a joint annuitant. No information was received by Retirement as to a joint annuitant. Further, at hearing no assertion of Ms. Kerr being a joint annuitant was made. Ms. Kerr is the personal representative of her son’s, Det. Kerr's, estate. On September 26, 2005, Retirement received a letter from Ms. Kerr's counsel requesting Retirement to change Det. Kerr's option selection from Option 1 to Option 2, explaining, among other things, Det. Kerr's intent but that his medical condition prevented him from following through with his intent. No mention was made in the letter of a survivor who qualified as a joint annuitant. Retirement contends that an option selection can only be changed in the event the designated beneficiary qualifies as a joint annuitant. On October 14, 2005, Retirement, by final agency action letter, denied the request to change Det. Kerr's option selection but erroneously cited Section 121.091(6)(h), Florida Statutes, as the statutory basis for the decision to deny the request, which stated as follows: (h) The option selected or determined for payment of benefits as provided in this section shall be final and irrevocable at the time a benefit payment is cashed or deposited or credited to the Deferred Retirement Option Program as provided in Subsection (13). Retirement admits that the basis for the denial stated in the final agency action letter is incorrect. No benefit payment had been issued, cashed or deposited. Retirement has never amended or sought to amend its denial-letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order granting the request of Rosalie J. Kerr and changing the retirement option selection of her deceased son, Robert R. Kerr, from Option 1 to Option 2. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 10th day of July, 2006.
The Issue The issue in this case is whether Fred E. Hild (Colonel Hild), a deceased member of the Florida Retirement System, was incapacitated at the time he selected his retirement option and through the time that his first benefits check was cashed and, if so, whether his retirement option should be amended retroactively to provide benefits for Petitioner, Lois Hild, his spouse.
Findings Of Fact Colonel Fred Hild, late husband of Lois Hild, served in the Air Force for 25 years before retiring from that service. After retirement from the Air Force and after Valencia Community College opened in Orlando, Florida, Colonel Hild joined the college staff, first as a teacher and then as an administrator. At the time of his retirement from the college, he was assistant to the provost. He worked at the college from 1978 until 1996. His employment at the college was covered by the Florida Retirement System (FRS). With the exception of a year's employment in her family's business, Mrs. Hild never worked outside of her home. She and Colonel Hild were married over 50 years and had a full, active life together. Colonel Hild provided the financial support for the family and, except for routine household expenses when he was away in the Air Force, he handled all of the family's financial affairs. Colonel Hild's family and co-workers acknowledge that he was a remarkable man in many ways, physically vigorous and mentally sharp. His work was always an important aspect of his life; he was well-respected and well-known on the college campus and, because of his long tenure, was very knowledgeable about the history and functioning of the college. As he aged, Colonel Hild slowed down a bit; he had days at work when he was sleepy or grumpy. Most days, though, he was quite normal and sharp. He knew all of the regulations for the college and always went by the rules. On October 12, 1995, at the age of 81 years, Colonel Hild suffered a major cerebrovascular accident (stroke) while at home. The stroke left lasting side effects. For a time after the stroke he lost all short-term memory and could neither read nor write. He became passive and frail. He underwent rehabilitation and improved quite a bit, according to Mrs. Hild, but he was never again the same man. Colonel Hild's son, David, who lived in California, sold his car and possessions and moved in with his parents to help Mrs. Hild provide the care Colonel Hild then required. This care included driving and assistance ambulating in the home neighborhood, where he would sometimes get lost. Colonel Hild was never again able to drive, as he lost part of his peripheral vision and would forget where he was going. He was unable at times to recognize friends or family members. He slept a lot and needed supervision in showering and dressing. He never again was able to assume responsibility for the financial affairs of the family. The Hild's son, Steve, an accountant in Miami, Florida, helped Mrs. Hild with financial planning and paperwork. Before his stroke Colonel Hild had made some plans for retirement. He spoke to co-workers of investments in stocks and bonds, and when the Air Force brought in a survivor's benefit program, he took advantage of that so that his wife would have some benefits when he died. He also spoke to Mrs. Hild of their having retirement benefits from Valencia for ten years. Still, before the stroke Colonel Hild worried about having enough for retirement and his worries increased after the stroke. He insisted on returning to work at the college after his rehabilitation and some recovery. Although they were worried about how he could function, Colonel Hild's wife and sons were reluctant to oppose him when he was so insistent. Dr. Collins, his personal physician for over 20 years, provided certificates authorizing Colonel Hild to return to the college part-time on April 8, 1996, and full time on June 1, 1996. Dr. Collins believed that the duties would be light and that the family and college staff would look out for Colonel Hild. Colonel Hild's son, David, drove him to and from work and made sure Colonel Hild got in the building. The first time they made the drive, Colonel Hild directed his son to the wrong campus of the college. Already thoroughly trained in the paperwork, the secretaries picked up much of the work that Colonel Hild had been doing. For example, they listened to students' problems and tried to work them out with the department chairpersons. For final decisions, the staff referred the problems to the provost, Dr. Kinzer. Colonel Hild's duties on his return to work were light. Because Colonel Hild was very organized and knew so much about the college, he was able to function with the help of his staff. He could review documents prepared for him and would initial or sign the documents, as appropriate, sometimes changing something if it had not been prepared correctly. Some days were better than others; he slept more than he did before his stroke and would sometimes get lost on campus. Because he was so well- known, someone would always help him back to his office. One of the annual responsibilities of Colonel Hild was organizing the graduation processions, making a list of the order of the march and placing posters or signs in the corridors for guidance. He performed this function without complaint in early May 1996. He refused assistance of his staff and, except for a couple of posters on the opposite wall, he managed to get everything done. At the actual graduation night, however, Colonel's Hild's, son, David, had to help him find his way at the end of the ceremony and recessional march. Colonel Hild retired from Valencia Community College on July 31, 1996. In preparation for that retirement he had several contacts with staff in the college's human resources office. Initially, Colonel Hild signed a form on May 30, 1996, applying for retirement and leaving blank the benefit option selection since he had not yet received an estimate of the amounts he would receive under each option. Vicki Nelson, a staff person in the human resources office, had approximately 4 or 5 contacts with Colonel Hild, face-to-face or over the telephone, while preparing paperwork for his retirement. At one point she was concerned that she was having to explain things over again and she suggested to Colonel Hild and to his secretary that maybe he should bring Mrs. Hild in with him. The issue she was trying to explain had something to do with the need to obtain Mrs. Hild's birth certificate if he selected either option 3 or 4. The suggestion was never followed up and ultimately Mrs. Hild's birth certificate was unnecessary. Michael Break is assistant vice-president of human resources at Valencia Community College. In his capacity as director of human resources Dr. Break was involved in preparing Colonel Hild's retirement documents. On June 19, 1996, Dr. Break, Vicki Nelson, and Colonel Hild met to discuss the benefit options and the monthly estimates of each amount. The FRS provides four benefit options to its retirees. Option 1 yields the maximum monthly benefit, but when the retiree dies there is no survivor benefit. Option 2 yields a reduced monthly benefit for 10 years. If the retiree dies before the end of 10 years, the benefit is paid to the survivor for the balance of the 10 years. Option 3 provides a reduced benefit for the joint lifetimes of the member and beneficiary; Option 4 provides a reduced benefit for the lifetimes of the retiree and beneficiary, which benefit is reduced by 33 1/3% upon the death of either. As explained to Colonel Hild, his monthly benefit under option 1 was $2,569.64; under option 2, his benefit was $1,692.72; under option 3 the benefit was $1,546.92; and under option 4, the benefit was $1,856.41, reduced to $1,237.61 upon the death of Colonel or Mrs. Hild. In his discussion with Colonel Hild, Dr. Break pointed out the implications of the various options, including the need to consider such factors as one's health and financial arrangements for a dependent spouse. In response, Colonel Hild mentioned that he had other financial means and this was not the only retirement that he depended on. Although Dr. Break was aware that some people were concerned about Colonel Hild's effectiveness after his return to work, nothing in Colonel Hild's responses to the discussion in the meeting raised red flags to alert Dr. Break that Colonel Hild did not understand. Colonel Hild expressed his opinion that the difference between benefits under option 1 and the remaining options was excessive. In Dr. Break's experience, and as he counsels pre- retirees, sometimes the selection of option 1, with the additional purchase of an annuity or life insurance policy, inures to the greater benefit of an individual's dependents than the other reduced-benefit options under the FRS. When a retiree selects option 1 or 2, there is a section on the option selection form for the spouse to sign in acknowledgment of the option. Colonel Hild brought the form home and gave it to Mrs. Hild to sign one morning before he left for work. When she signed it the form was blank. All she knew was what he told her, that the form was something she had to sign for his retirement. She did not question her husband or even read enough of the form to know that there were 4 options. Mary Ann Swenson has been employed at Valencia Community College for thirteen years, 8 of which have been in the human resources department. Ms. Swenson notarized Colonel Hild's signature on the benefits option form on June 24, 1996, and remembers the occasion. Colonel Hild came to the human resources office to meet with Vicki Nelson, who called Ms. Swenson. At the time that Colonel Hild signed the form, Mrs. Hild's signature was already on it, but her signature did not require a notary. Likewise, option 1 had been checked on the form and, in response to a question by Colonel Hild, Vicki Nelson showed him that he marked option 1 and said, "Yes, you have marked option 1." Colonel Hild signed the form and then Ms. Swenson notarized it. On June 24, 1996, during the approximately 10 minutes that Ms. Swenson spent with Colonel Hild and Vicki Nelson, she had no reason to believe that he was not in complete control of his mental facilities or that he failed to understand and recognize what he was signing. Colonel Hild retired, as planned, the end of July 1996, and his first retirement check arrived approximately August 30, 1996. Mrs. Hild saw the check and had her husband endorse it. She then cashed the check. She understood that by doing so, she was accepting the amount of the check. She saw no problem with this because she assumed that Colonel Hild had opted for what he and she had discussed as the "ten year" provision. Mrs. Hild assumed that the check reflected the number of years he was employed and the amount of money that he was making. The Hild's son, Steve, made the same assumption, as he and Colonel Hild had discussed retirement sometime in the early 1990's and Steve understood that his father would take the 10- year plan with Valencia. Neither Steve nor Mrs. Hild had requested any information from the college or Division of Retirement about the option selected by Colonel Hild or the amount of benefits he would receive once he retired. Colonel Hild died on September 28, 1997. He had received a total of approximately $37,000, or 14 months of benefits under FRS option 1 during his lifetime. Mrs. Hild and Colonel Hild's sons learned of the option 1 selection when the checks stopped coming after Colonel Hild's death and when Mrs. Hild called the college human resources office. It is necessary to glean Colonel Hild's mental capacity and state of mind from the circumstances described by the witnesses in this case, all of whom were candid and credible. From those circumstances it is impossible to find that Colonel Hild was incompetent to make the decision to chose option 1 for his FRS benefits. That decision was entirely consistent with his concern, described by his family and staff at the college, that there be enough money coming in when he retired. Although he plainly was concerned for making financial arrangements for his spouse, he had made some arrangements already with his Air Force retirement and with other assets or investments. Described as strong-willed, disciplined and well- organized, Colonel Hild, in spite of his diminished capacity after his stroke, convinced his family, the college and his long time physician that he should return to work. And he did function in that work prior to retirement, performing by habit those tasks that he had mastered in his long tenure. No one suggests that Colonel Hild was coerced, pressured or hurried into the decision he made. The various staff who met with him on several occasions regarding his retirement believed that he was capable of making his own decision and that he exercised the very option that he intended.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: THAT the Florida Division of Retirement issue its final order denying the relief sought by Petitioner, Lois Hild. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 4th day of March, 1999. COPIES FURNISHED: Harold Lewis, Esquire Division of Retirement Cedars Executive Center 2639-C North Monroe Street Tallahassee, Florida 32399-1560 Julia Smith, Esquire Amundsen and Moore 502 East Park Avenue Post Office Box 1759 Tallahassee, Florida 32302 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C Tallahassee, Florida 32399-1560
