The Issue The issue in this case is whether Petitioner is entitled to change the type of her retirement benefits from early service retirement to disability retirement.
Findings Of Fact Respondent is charged with managing, governing, and administering the Florida Retirement System (FRS). The FRS is a public retirement system as defined by Florida law. Nearly 1,000 public employers participate in the FRS, including state agencies, local governments, and district school boards. There are more than 600,000 individual active members in the FRS. Petitioner was an employee of the Pasco County School Board until she submitted her resignation on February 28, 2011, in order to retire. By reason of her employment with the Pasco County School Board, Petitioner is a member of the FRS. After Petitioner resigned, she met with Michael Hudson, the director of Employee Benefits for the Pasco County District School Board, on March 4, 2011, to complete the paperwork for her retirement. At the March 4, 2011, meeting, Petitioner completed and signed the form application for service retirement. The information filled out on the form in Petitioner's clear handwriting included her name, position, address, telephone number, social security number, birth date, and service termination date. The following statement appears on the application form immediately above Petitioner's notarized signature: 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 service, change options, change my type of retirement (Regular, Disability, and Early) or elect the Investment Plan once my retirement becomes final. My retirement becomes final when any benefit payment is cashed or deposited. (Bold in original). Petitioner also filled out the payment option selection form, selecting Option 1 as the option for how her retirement benefits are to be paid out. Immediately above Petitioner's signature on the option selection form is this statement: 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 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, deposited or when my Deferred Retirement Option Program (DROP) participation begins. (Bold in original). Petitioner was aware that she could seek to qualify for disability retirement benefits, but that in order to apply for disability retirement, she would have to submit certifications by two doctors that she was totally and permanently disabled, meaning that she was unable to work. Petitioner also knew that she could apply for early service retirement, which would not require proof of total, permanent disability. However, because Petitioner would be retiring early, her benefits would be discounted, so she would receive less. Petitioner understood, when she completed the application on March 4, 2011, that the type of retirement for which she applied was early service retirement. At retirement, she was 52 years and nine months old. In Petitioner's view, she was "forced" to retire. Petitioner had been employed as an adult education-health instructor at Marchman Technical Education Center, which she described as a stressful job. In 2010, she had to undergo three major abdominal and pelvic reconstructive surgeries. As she dealt with the challenges of complications and slow recoveries, she developed psychological issues that caused her to seek treatment from a psychiatrist. She was depressed and cried a lot, felt anxious and stressed, and experienced panic attacks. Petitioner took medication prescribed by her psychiatrist for her panic attacks and depression. She testified that the medication helped and that when she took her medication, she no longer cried all the time. However, she experienced side effects, including some drowsiness and difficulty processing information. By early 2011, Petitioner felt unable to return to her stressful job and had been attempting, without success, to find an appropriate job that she thought she could do with her limitations. She was worried and felt pressure, as a single mother who was supporting herself and her 17-year-old son, who lived with her. She was particularly concerned about ensuring a stream of income to pay for health insurance. Before Petitioner met with Mr. Hudson to apply for early service retirement, she discussed the different types of retirement with her good friend, Pat Beals. Ms. Beals had worked at Marchman Technical Education Center with Ms. Radicella. Both Petitioner and Ms. Beals testified that in discussing the different types of retirement, Petitioner believed at the time that she would not qualify for disability retirement. At the time in early 2011, Petitioner's belief was that she would be unable to obtain letters from two doctors who would render the opinion that Petitioner was unable to work. Ms. Beals apparently did not disagree with that opinion. Ms. Beals noted that Petitioner had been trying to get another job that she would be able to handle with her limitations. Ms. Beals said only that she thought Petitioner had tried to go back to work too soon, before she was fully healed. Petitioner went alone to her meeting with Mr. Hudson and did not ask any of her close friends or advisors, such as Ms. Beals or her neighbor, Mr. Edelman, to go with her. Petitioner testified that she had taken her medication to control her depression and her panic attacks that day. Petitioner was in good enough shape, mentally and physically, to safely drive herself to and from the school district administrative offices. Petitioner testified that Mr. Hudson explained Petitioner's choices to apply for early service retirement or to apply for disability retirement. Petitioner testified that Mr. Hudson explained that if she applied for disability retirement, two doctors would have to say she could never work again. This led Petitioner to choose early service retirement because, as she had discussed with Ms. Beals previously, she did not think two doctors would give the opinion that she was unable to work again. Moreover, at the time, Petitioner did not want to say that she would never work again. Petitioner found the meeting with Mr. Hudson to be very sad and embarrassing; she found the prospect of retirement itself to be very embarrassing, as she had always been independent and had always taken care of herself. Petitioner attempted to blame Mr. Hudson for the pressure she was feeling to make a choice and sign the paperwork presented to her, but Petitioner did not prove that Mr. Hudson was to blame for any pressure she felt. Petitioner failed to identify anything specific that Mr. Hudson said or did to create pressure, such as if he had told Petitioner she had to sign all of the paperwork then and there. Indeed, when asked if she felt pressured by Mr. Hudson, Petitioner's response was that "it was strictly business." Petitioner explained that she just "shut down," letting him give her papers, and she just signed them. Petitioner did not claim to misunderstand the different types of retirement benefits--early service retirement versus disability retirement--and indeed, expressed a very clear rationale for making the choice that she did. Petitioner had expressed that same rationale in conversations before March 4, 2011, with Ms. Beals. Petitioner testified that she did not understand the paperwork that Mr. Hudson presented her to sign and that she did not understand that she could not change the type of retirement from early service to disability retirement at a later date. Inconsistently, she testified that she understood that she would not be able to change her payment options after she cashed her first benefit check. That is part of the warning message appearing right above her signature. Petitioner did not credibly explain how she was able to understand that part of the warning message, while not understanding the other part of the warning message that she also could not "change my type of retirement (Regular, Disability, and Early)" after cashing her first benefit check. The notice appeared on both forms she signed that day in plain, clear language. Petitioner did not testify that she was given any misinformation or that she asked for explanations that were not forthcoming. Petitioner did not testify that she asked to delay signing the paperwork presented to her at the March 4, 2011, meeting, until she had had a chance to review it with one of her friends and advisors. Instead, Petitioner did not want to wait; she was in a hurry to sign the paperwork because the sooner she signed the paperwork, the sooner the payments would start. Petitioner attempted to disavow her March 4, 2011, early service retirement application on the theory that she lacked the mental capacity to understand the nature and consequences of her actions that day. Petitioner offered no competent medical opinion testimony or medical records to support her claim. Petitioner's two friends tried to support her theory, but they lacked the medical expertise to offer an opinion that Petitioner did not understand the nature or consequences of her actions that day. To the contrary, their testimony tended to confirm that Petitioner not only understood what she did on March 4, 2011, but that she acted as she did for a very rational, logical reason. The evidence did not establish that Petitioner was impaired to any great extent because of her physical or mental conditions or because of her medication taken to control her conditions. Petitioner may lack confidence and doubt herself; she may seek out opinions of her close friends when making important decisions because she did not trust her own ability to make decisions. However, as she acknowledged and certainly exhibited at the hearing, she is intelligent and capable. Petitioner was capable of functioning independently, living alone with her 17-year-old son and taking care of him. Petitioner was able to drive alone and did so. Petitioner took care of her own paperwork, writing out checks, and paying her own bills. Petitioner was not hospitalized or adjudicated incompetent because of her mental condition, nor was there any suggestion that her psychiatrist or good friends thought such steps were necessary for Petitioner's competency to manage her own affairs. After Petitioner returned from her meeting with Mr. Hudson on March 4, 2011, she called Ms. Beals to tell her about the paperwork she completed in her meeting with Mr. Hudson. Ms. Beals testified that she could tell Petitioner was anxious, because she was talking very fast. Nonetheless, Petitioner understood the nature and consequences of her actions on March 4, 2011, well enough to tell Ms. Beals that she had applied for early service retirement benefits. Ms. Beals was concerned and said that she may have made a mistake by not applying for disability retirement. While Ms. Beals expressed surprise that Petitioner did not ask her to go with her on March 4, 2011, she admitted that they had talked about the retirement issue previously and that Petitioner's actions on March 4, 2011, were consistent with what they had previously discussed. Petitioner's neighbor, Alvin Ellenwood, also testified that Petitioner called him later on March 4, 2011, and reported to him that she had completed the paperwork for early service retirement benefits. Mr. Ellenwood testified that he, too, was concerned and told Ms. Radicella that she may have made a mistake by not applying for disability retirement. Despite the concerns of both Ms. Beals and Mr. Ellenwood, apparently no steps were taken in the days after March 4, 2011, to review the forms that Petitioner had signed or to seek out any information from the Division regarding whether Petitioner could try to change the type of retirement benefits from early service retirement to disability retirement. On March 9, 2011, the Division issued and transmitted to Petitioner the following documents related to her application: Acknowledgement of Service Retirement Application (Acknowledgement); Estimate of Retirement Benefits (Estimate); an information sheet entitled, "What Retirement Option Should You Choose" (Option); and a FRS booklet published by the Division entitled, "Preparing to Retire" (Booklet). The Acknowledgement document confirmed receipt of Petitioner's service retirement application and repeated a similar warning as those appearing above Petitioner's signature on the forms she signed on March 4, 2011; this time, the notice was in all capital letters and in all bold print: "ONCE YOU RETIRE, YOU CANNOT ADD SERVICE, CHANGE OPTIONS, CHANGE YOUR TYPE OF RETIREMENT OR ELECT THE INVESTMENT PLAN. RETIREMENT BECOMES FINAL WHEN ANY BENEFIT PAYMENT IS CASHED OR DEPOSITED." Detailed information was provided about FRS retirement in the 15-page Booklet. The Booklet's first four pages are devoted to information for contacting the Division, including how to access the Division's website, and how to contact individuals, via numerous toll-free telephone numbers and e-mail addresses, to ask questions. And yet another warning message appears on page 11 of the Booklet, set apart from the rest of the text by a bold text box: Remember, once you cash or deposit any benefit payment or after the first payment is credited during your DROP participation period, you cannot add service credit, change your retirement benefit option selection, change your type of retirement from early to normal or from service to disability retirement, transfer to the FRS Investment Plan or cancel your DROP participation. The two other documents sent on March 9, 2011, the Estimate and Option documents, specifically addressed the retirement payment option choice. These two documents warned that Petitioner had selected Option 1 and could not change that option after cashing or depositing her first benefit check. Petitioner did not say what she did upon receipt of March 9, 2011, package of materials, whether she reviewed the material or whether she asked her friends to review it. Had these documents been reviewed, it would have been clear that once Petitioner cashed or deposited the first benefit payment, she could no longer change the type of retirement from early service retirement to disability retirement.2/ At any point in time before Petitioner received and cashed or deposited her first retirement benefit check, she could have sought to change the type of retirement benefit from early service to disability retirement. However, no such steps were taken. As Petitioner testified and Ms. Beals acknowledged, Petitioner did not believe at that time that she would qualify for disability retirement. In any event, it would have taken longer to seek disability retirement benefits because of the need to obtain verification by two doctors that Petitioner was unable to work, and Petitioner did not want to wait. Petitioner received her first retirement benefit check at the end of March 2011, and the state warrant was paid (cashed or deposited) on April 8, 2011. As of the hearing date, Petitioner had received an additional nine monthly payments for her early service retirement benefit. For some reason, it was not until June 2011, after receiving and cashing or depositing three early service retirement benefit payments, that Petitioner decided to submit an application for disability retirement benefits. The parties stipulated that Petitioner's disability retirement application was mailed to the Division on June 14, 2011.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order denying the request to change from early service retirement benefits to disability retirement benefits submitted by Petitioner, Reneé Radicella. DONE AND ENTERED this 27th day of February, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 27th day of February, 2012.
The Issue The primary issue in this case is whether Petitioner is entitled to receive an early retirement benefit pursuant to Sections 121.091(3)(b) and 121.091(7)(b), Florida Statutes, based on an effective retirement date of February 1, 1996.
Findings Of Fact Historical Facts When he passed away on January 26, 1996, at the age of 56, Roy Hoffman, Jr., was a fully vested participant in the Florida Retirement System ("FRS"), having worked as a professor at Florida Atlantic University for nearly 27 years. Professor Hoffman's named beneficiary and joint annuitant was his wife, Petitioner Jeanne Hoffman ("Hoffman"). As such, Hoffman became entitled, upon her husband's death, to receive a lifetime retirement benefit from the FRS. By letter dated March 8, 1996, Respondent Department of Management Services, Division of Retirement ("Division"), which administers the FRS, first notified Hoffman of her eligibility to receive a benefit. The letter provided in pertinent part as follows: As the designated beneficiary and joint annuitant, you are entitled to the Option 3 monthly retirement benefit. The Option 3 monthly benefit is payable for your lifetime and is estimated to be $1,812.58 effective February 1, 1996. To receive this benefit, you need to [submit an application and provide certain information.] If we may be of further assistance, please call us at (904)488-5207. After receiving this letter, Hoffman was uncertain about whether she should accept the benefit immediately or, alternatively, postpone the benefit commencement date until nearer her own retirement, so she called the Division for assistance. Following a telephone conversation with an FRS counselor, Hoffman was left with the impression that she would be better off waiting until she reached the age of 59.5 years to begin receiving the monthly benefit, for the benefit, she believed, would then be higher.1 The Division sent a second letter to Hoffman, which was dated April 26, 1996, and provided: Please refer to our letter dated March 8, 1996. Before we can finalize [your] account, we need [to receive] the following [items and information from you.] Hoffman did not respond to this letter. Four months later, the Division sent a third letter to Hoffman regarding her benefit eligibility. Dated August 28, 1996, this letter provided in relevant part as follows: We have not received a response from our letters dated March 8, 1996 and April 26, 1996. If we have not heard from you within thirty days of the date of this letter, the file will be placed on inactive status. It will then be your responsibility to contact us to apply for a monthly benefit. The benefit will be effective the first of the month following contact from you. By this "warning letter," the Division intended to communicate its decision that, unless Hoffman submitted an application for benefits on or before September 27, 1996, she would forfeit the right to receive an "early retirement-death benefit"2 based on an effective date of retirement ("EDR") closely tied to her husband's date of death and be deemed to have elected a "deferred monthly benefit"3 based on a post-mortem EDR tied to the Division's receipt of her application for benefits. (EDR is a critical date because that is when the benefit accrues. See § 121.021(41), Fla. Stat.4) The parties dispute whether, in fact, the warning letter reasonably notified Hoffman of the Division's decision; the issue will be taken up below. Hoffman did not take the warning letter to mean what the Division had intended to convey. Thus she had no idea that she was in jeopardy of forfeiting the right to an early retirement-death benefit. Further, she did not deliberately elect to forego receipt of an early retirement-death benefit in favor of a deferred monthly benefit. Rather, being unfamiliar with the details regarding benefits payable under the FRS, Hoffman believed that, without any present action on her part, the benefit to which she was entitled had begun upon her husband's death to accrue for her use and benefit and would continue to accumulate until she was ready to begin receiving the benefit in monthly installments. Consequently, Hoffman made no reply to the warning letter, and at some point after September 27, 1996, the Division placed her file on inactive status. For the next eight-and-a-half years, nothing relevant to this case occurred. Then, in January 2005, Hoffman met with a financial planner for advice concerning her retirement. She was 57 at the time and told the planner about the benefit she expected to receive in a couple of years as her late husband's joint annuitant. The financial planner recommended that she contact the Division straightaway. On January 31, 2005, Hoffman called the Division and was informed that, having failed to apply for an early retirement-death benefit by September 27, 1996, in accordance with the warning letter dated August 28, 1996, she had forfeited nine years' worth of retirement income, and that her only remaining option was to request a deferred monthly benefit based on an EDR of February 1, 2005, at the earliest. The Division followed this telephone conversation with a letter dated February 16, 2005, which made clear that the only benefit for which Hoffman could apply would commence no earlier than February 1, 2005. Being given no choice, Hoffman applied as instructed, with the result that the FRS began paying Hoffman approximately $2,011 per month, which it was continuing to do as of the final hearing. Thereafter, by letter dated March 1, 2005, Hoffman petitioned the Division to pay her a retirement benefit "retroactive" to February 1, 1996, the date which, had she applied for an early retirement-death benefit on or before September 27, 1996, would have been her husband's EDR, without controversy.5 The Division denied Hoffman's request, by letter dated March 15, 2005. Relying on Section 121.091, Florida Statutes, and Florida Administrative Code Rule 60S-4.0035, which will be examined below, the Division determined that it could not "pay benefits retroactive to 1996 because [Hoffman had] not compl[ied] with the Rule requiring that the application be filed timely." Hoffman requested a hearing on this determination, giving rise to DOAH Case No. 05-3200. Hoffman also petitioned the Division, pursuant to Section 120.542, Florida Statutes, to waive——or grant her a variance from——the provisions of Florida Administrative Code Rule 60S-4.0035(3)(c) upon which the Division intended to rely in rejecting her claim for an early retirement-death benefit. The Division denied Hoffman's petition for waiver or variance in an order dated August 15, 2005. Thereafter, Hoffman timely requested a hearing on the matter, which led to the commencement of DOAH Case No. 05-3679. Factual Analysis The parties sharply disagree about whether the Division reasonably notified Hoffman of the important decision (see paragraph 6, supra) that it made in late August 1996 respecting her eligibility to receive a benefit, which decision the Division intended to communicate to Hoffman via the warning letter. To recapitulate, the warning letter told Hoffman that if she failed to contact the Division by September 27, 1996, then (1) her file would become "inactive"; (2) it would be her responsibility to initiate further contact with the Division; and (3) her "benefit" would be "effective" starting the month after she contacted the Division. Yet, in fact, the Division had decided that if Hoffman did not contact the Division by September 27, 1996, then (1) she would forfeit the right to receive an early retirement-death benefit based on an EDR closely proximate to her husband's date of death; (2) the Division would treat her inaction as an affirmative election to receive a deferred monthly benefit; and (3) her benefit would be based on an EDR related to the Division's receipt of her application for benefits. It is striking, in reading the warning letter from the standpoint of a reasonable recipient, that no mention was made therein of the different types of benefits available to a surviving spouse, no explanation regarding the distinction between an early retirement-death benefit and a deferred monthly benefit was given, and no information concerning a beneficiary's right to elect the latter as an alternative to the former——much less why one might do so——was imparted. (The same can also be said of the two letters that preceded the warning letter.) It is striking, too, that neither the warning letter nor the two earlier ones mentioned EDR or its significance. Instead, the warning letter spoke of an effective date of "benefit," which, at least without more information than was contained in the letter, could be understood to refer to the date on which the benefit payments would commence as opposed to when benefits would start to accrue. The undersigned finds, therefore, that, as a matter of fact, the warning letter itself did not reasonably communicate that Hoffman was at risk of forfeiting the early retirement- death benefit and being deemed to have elected a deferred monthly benefit based on a future EDR to be determined. Put another way, although the warning letter clearly established a deadline (September 27, 1996) for making contact with the Division, its description of the consequences of letting the deadline pass without contacting the Division did not fairly match the consequences the Division actually had decided would follow such inaction. Of course, as the Division points out, the warning letter was not the only source of information about retirement benefits available to Hoffman. There were, in addition, the governing statutes and rules. Hoffman did not actually avail herself of these references, but, as the Division argues, she is presumed to know the contents of the applicable laws.6 Perhaps, armed with such knowledge, she would have——and hence should have——understood what the Division was trying to tell her in the warning letter. If Hoffman had consulted the relevant statutes, she would have learned that she was entitled to receive an early retirement benefit pursuant to Section 121.091(3), Florida Statutes, which provides as follows: EARLY RETIREMENT BENEFIT.--Upon retirement on his or her early retirement date, the member shall receive an immediate monthly benefit that shall begin to accrue on the first day of the month of the retirement date and be payable on the last day of that month and each month thereafter during his or her lifetime. Such benefit shall be calculated as follows: * * * (b) If the employment of a member is terminated by reason of death subsequent to the completion of 20 years of creditable service, the monthly benefit payable to the member's beneficiary shall be calculated in accordance with subsection (1), but shall be based on average monthly compensation and creditable service as of the date of death. The benefit so computed shall be reduced by five-twelfths of 1 percent for each complete month by which death precedes the normal retirement date specified above or the date on which the member would have attained 30 years of creditable service had he or she survived and continued his or her employment, whichever provides a higher benefit. There is no dispute that Hoffman was entitled to an early retirement benefit under Section 121.091(3)(b) when her husband's employment was terminated by reason of death after completing nearly 27 years of creditable service. The parties agree as well that, by the clear and unambiguous terms of the statute, the benefit would have been reduced by five percent per year for each of the approximately three years by which Professor Hoffman's death preceded the date on which he would have attained 30 years of creditable service. See also Fla. Admin. Code R. 60S-4.005(2)(c)(describing benefits payable upon early retirement brought about by death). If Hoffman had read Section 121.091(7)(b), Florida Statutes, she would have learned the following: If the employment of an active member who may or may not have applied for retirement is terminated by reason of his or her death subsequent to becoming vested and prior to his or her effective date of retirement, if established, it shall be assumed that the member retired as of the date of death in accordance with subsection (1) if eligible for normal retirement benefits, subsection (2) if eligible for benefits payable for dual normal retirement, or subsection (3) if eligible for early retirement benefits. Benefits payable to the designated beneficiary shall be as follows: 1. For a beneficiary who qualifies as a joint annuitant, the optional form of payment provided in accordance with [option 3] shall be paid for the joint annuitant's lifetime. Clearly, under the plain language of Section 121.091(7)(b), Hoffman was entitled to receive death benefits in the form of an early retirement benefit, for which latter her husband was eligible at the time of his death. As just mentioned, however, Professor Hoffman satisfied the conditions set forth in Section 121.091(3)(b) for an early retirement benefit, payable to his beneficiary, without reference to Section 121.091(7)(b). Moreover, because Professor Hoffman was, at the time of his death, closer to attaining 30 years' service than reaching age 62, Hoffman's early retirement benefit would be highest if calculated under Section 121.091(3)(b). Nevertheless, as Section 121.091(7)(b) is not inconsistent with Section 121.091(3)(b), there is no reason to treat them as mutually exclusive. Thus, bowing to the interrelatedness of these statutes——Section 121.091(3)(b)(early retirement benefits upon termination of employment by death) and Section 121.091(7)(b)(death benefits)——the undersigned has chosen to use the term "early retirement-death benefit" to refer to that benefit, available thereunder, which is based on an EDR in close proximity to the member's death. As an alternative to the early retirement-death benefit, Section 121.091(7) makes available to beneficiaries such as Hoffman another option, namely the "deferred monthly benefit." Had Hoffman studied the statute, she would have discovered that [t]he designated beneficiary who is the surviving spouse or other dependent of a member whose employment is terminated by death subsequent to becoming vested, but prior to actual retirement, may elect to receive a deferred monthly benefit as if the member had lived and had elected a deferred monthly benefit, as provided in paragraph (5)(b), calculated on the basis of the average final compensation and creditable service of the member at his or her death and the age the member would have attained on the commencement date of the deferred benefit elected by the beneficiary, paid in accordance with option 3 of paragraph (6)(a). § 121.091(7)(h); see also Fla. Admin. Code. R. 60S-4.008(2)(b). The deferred monthly benefit allows a surviving spouse to postpone the deceased member's EDR, thereby reducing or eliminating the early retirement penalty of five percent per annum for each year the EDR precedes the member's normal retirement date.7 Postponing the EDR would make sense, most obviously, when, because of the number of years between the member's date of death and his or her normal retirement date, the survivor's early retirement-death benefit would be substantially consumed by the penalty. Because Professor Hoffman met the criteria for an early retirement benefit under Section 121.091(3)(b), however, his wife's benefit was subject to a relatively light penalty. Thus, it is unlikely that Hoffman intentionally would have made an election under Section 121.091(7)(h) for a deferred monthly benefit, had she been aware of the statute. The Division has promulgated a rule that specifies how the EDR will be determined in certain circumstances. Rule 60S- 4.0035(3)(c) was available to inform Hoffman as follows: For a member who dies prior to an effective retirement date established pursuant to paragraph (a) or (b), the effective retirement date shall be the first day of the month following the month in which the member died, provided the joint annuitant makes timely application for benefits; or, for a deferred monthly benefit, the first day of the month following the month in which the Division receives the joint annuitant's application for benefits, or the first day of a later month specified by the joint annuitant. Significantly, the Division has not established by rule a method of determining whether an application is "timely" for purposes of Rule 60S-4.0035(3)(c). Rather, it determines timeliness on a case-by-case basis. Had Hoffman been aware of Rule 60S-4.0035(3)(c), she might have surmised, upon reading the warning letter, that the Division had decided that her application for benefits would be "timely," for purposes of the Rule, only if received on or before September 27, 1996. She might also have reasoned that if her application were untimely, then the applicable EDR might not be February 1, 1996 (i.e. the first day of the month following the month in which her husband had died). At that point, she might have concluded that unless her application were received by September 27, 1996, she would forfeit the early retirement- death benefit, as the Division would deem her delay an election to receive a deferred monthly benefit. Maybe Hoffman would have connected all these dots. The undersigned finds, however, as a matter of fact, that a reasonable person could not have figured out what the Division had decided and what it intended to do, even if armed with the statutes and rules, because ascertaining the true nature of the Division's determination entails more analytical, indeed legal, reasoning than an ordinary layperson should be expected to employ. In fact, it is determined, the warning letter was inadequate to put even a well-informed person, cognizant of the applicable laws, on notice of the Division's decision regarding Hoffman's potential forfeiture of the early-retirement death benefit and "deemed election" of the deferred monthly benefit. While the warning letter was deficient in that it failed reasonably to tell Hoffman what the Division actually had determined with regard to her substantial interests, it was defective in yet another consequential way: the warning letter failed to notify Hoffman of her right to request a hearing to determine the substantial interests affected by the Division's establishment of an application deadline and the consequences of noncompliance therewith. The warning letter, in other words, did not afford Hoffman a clear point of entry into an adversarial proceeding, where the Division would be required to substantiate its determination with competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order determining that Hoffman shall receive an early retirement-death benefit based on an EDR of February 1, 1996, and establishing the form in which Hoffman shall be paid the benefits that have accrued, but not been paid, from the EDR to the present, as well as the benefit going forward.10 In the event that one or more factual disputes arise over the amount of the unpaid accrued benefits or the method of paying them, the amount or form of the benefit going forward, or some combination of these, then Hoffman should be afforded the right to request a hearing to determine the disputed issue(s).11 DONE AND ENTERED this 17th day of January, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 17th day of January, 2006.
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 Respondent, Department of Management Services, Division of Retirement (“Respondent”), is entitled to a deduction of the retirement benefits to be paid to Aubrie-Elle Perez, and if Respondent is entitled to a deduction, whether the deduction should be in the amount of the gross disbursements of $19,833.21 or the net payments to Edward Perez (“Lt. Perez”) in the amount of $17,017.80.
Findings Of Fact The FRS is a public retirement system as defined by Florida law. There are approximately 400,000 active members within the FRS. Respondent is charged with managing, governing, and administering the FRS. In 1997, Lt. Perez began employment with the Miami-Dade County Fire Department. For over 16 years, Lt. Perez served as a fire fighter with the Miami-Dade County Fire Department, his last position being a Lieutenant. Lt. Perez was a vested member of the FRS. Upon his initial employment and enrollment with the FRS in 1997, Lt. Perez entered the Investment Plan and made a retirement benefits election designating that if he died before his retirement and chose not to designate a beneficiary, retirement benefits would be paid in accordance with section 121.091(8), Florida Statutes. Lt. Perez chose not to designate a beneficiary. Thus, according to this statute, retirement benefits would first be paid to Lt. Perez’s spouse, and if no spouse, then to his only child, the Petitioner. Tragically, on April 7, 2013, Lt. Perez collapsed at the fire station. Subsequently, Lt. Perez was diagnosed with a grade-four malignant brain tumor known as a glioblastoma multi-forming--a very aggressive and generally terminal form of brain cancer. There is no cure and the median survival rate for adults with this form of brain cancer is 9 to 14 months. Due to his terminal brain cancer and the treatments he had undergone and was undergoing, Lt. Perez was unable to continue his duties with the Miami-Dade County Fire Department. On February 19, 2014, a two-page FRS Investment Plan Application for Disability Retirement Form PR-13 (“application for disability retirement”), and an FRS Investment Option Selection Form PR-11o (“option selection form”), were submitted to Respondent for Lt. Perez. They were sent to Respondent by mail by Lt. Perez’s sister, Alecs Perez-Crespo. The effect of the application for disability retirement and the selection of Option 1 on the option selection form would be to transfer the monies from the Investment Plan into the Pension Plan, and convert Lt. Perez’s accumulated Investment Plan retirement benefits to monthly disability retirement benefits during his lifetime. Then, upon his death, the monthly benefit payments would stop, and the beneficiary would receive only a relatively small amount, if any--a refund of contributions Lt. Perez had paid into the Investment Plan retirement account, which are in excess of the amount he received in benefits, not including the transferred Investment Plan account balance.2/ The two-page application for disability retirement was not completed by the member, Lt. Perez, and was not signed by Lt. Perez in the presence of a notary public. The option selection form was not completed by the member, Lt. Perez, and was not signed by Lt. Perez in the presence of a notary public. Affirmative medical and factual evidence establishes, and rebuts any legal presumption to the contrary, that Lt. Perez was not mentally, physically, cognitively, or legally competent to execute the option selection form or the application for disability retirement in February 2014, or to understand their legal nature and effect. Nevertheless, Respondent processed the application for disability retirement and option selection form. As a result, Lt. Perez was deemed to have retired effective April 1, 2014, and he forfeited approximately $238,000, which was transferred from the Investment Plan to the Pension Plan. Subsequently, two disability retirement benefit warrants were issued by the State of Florida, Department of Financial Services, to Lt. Perez, via the Pension Plan, in care of Alecs Perez-Crespo, POA. The dates of these warrants are April 30, 2014, and May 30, 2014. Both warrants were endorsed by Ms. Perez-Crespo, “POA For Edward Perez.” Respondent made these disability retirement gross benefit disbursements resulting in net payments to Lt. Perez on the following dates and in the following amounts: April 30, 2014: gross disbursement of $4,950.63, less deducted taxes of $413.20, for a net payment to Lt. Perez of $4,537.43; May 30, 2014: gross disbursement of $4,950.63, less taxes of $413.20 and less a medical insurance deduction of $386.00, for a net payment to Lt. Perez of $4,151.43.3/ A direct deposit authorization for electronic transfer of future retirement benefit warrants into a checking account solely in the name of Lt. Perez was signed by Alecs Perez Crespo, “POA for Edward Perez,” on May 9, 2014. Two additional disability retirement gross benefit disbursements resulting in net payments to Lt. Perez were sent to the checking account of Lt. Perez on the following dates and in the following amounts: June 30, 2014: gross disbursement of $4,950.63, less taxes of $413.20 and less a medical deduction of $386.00, for a net payment to Lt. Perez of $4,151.43; July 31, 2014: gross disbursement of $4,981.32, less taxes of $417.81 and less a medical insurance deduction of $386.00, for a net payment to Lt. Perez of $4,177.51, bringing the total sum of the gross disbursements for the four payments made to Lt. Perez $19,833.21, and the total sum of the net disbursements for the four payments made to Lt. Perez $17,017.80. The net sum of $17,017.80 issued by the Pension Plan as disability retirement benefits to Lt. Perez was deposited into Lt. Perez’s checking account. Accordingly, $19,833.21 (gross)/ $17,017.80 (net), was received by Lt. Perez. Lt. Perez died on July 16, 2014, from the cancer. At the time of Lt. Perez’s death, Petitioner was, and remains, his sole surviving child (natural or adopted). Lt. Perez was not married at the time of his death and, thus, left no surviving spouse. Because of the receipt of the four payments during his lifetime, which are applied first to the personal contributions made by Lt. Perez into the Investment Plan during his lifetime, the amount of Lt. Perez’s small contributions into the plan were exhausted by the time of his death. Therefore, if the option selection form is valid, Petitioner, as the sole beneficiary and child of Lt. Perez, would receive nothing. Respondent concedes that notwithstanding the facial appearance of the option selection form and application for disability retirement, the documents are void and invalid because they failed to comply with the statutory, rule, and manual requirements applicable to properly effectuate the Option 1 selection, in that they were not completed by the member, Lt. Perez, and not signed by Lt. Perez in the presence of a notary public. Respondent concedes that due to Lt. Perez lacking the mental, cognitive, physical, and legal capacity to understand the nature and legal effect of executing the option selection form and application for disability retirement, the purported execution by Lt. Perez of the option selection form and of the application for disability retirement are void and invalid. Respondent concedes that the option selection form is invalid and void ab initio, and Lt. Perez’s earlier selection in 1997, pursuant to section 121.091(8), should be reinstated under the FRS Investment Plan. Respondent concedes that with Lt. Perez having died in 2014 with no surviving spouse, and with Petitioner being his sole surviving child at the time of his death, that the full retirement benefits of $234,035.81, to which Lt. Perez was entitled under his Investment Plan designation of beneficiary should be paid directly to Petitioner. Respondent asserts, however, that the payment of the retirement benefits to which Petitioner is entitled should be reduced by the amount of the four payments made by Respondent to Lt. Perez, which gross disbursements total $19,833.21, or net disbursements total $17,017.80, making the retirement benefits to which Petitioner is entitled to be $214,202.60 or $217,018.01, not $234,035.81. Respondent’s position is correct because the gross benefits in the amount of $19,833.21 were received by Lt. Perez when the four payments, after applicable required deductions, were deposited into his personal checking account. At hearing, no persuasive and credible evidence was presented indicating whatever happened, if anything, to the net payments of $17,017.80 deposited into Lt. Perez’s checking account. No persuasive or credible evidence was presented indicating whether any of the monies were withdrawn from the checking account before or after Lt. Perez’s death. No persuasive or credible evidence was presented indicating that Ms. Perez-Crespo used, diverted, or withdrew any of the funds from the checking account. No bank statements were offered into evidence. Petitioner, who is the personal representative of the estate, did not testify. No accounting of the assets of Lt. Perez’s estate was presented. Even if any of the $17,017.80 was used or diverted by Ms. Perez-Crespo after being deposited into Lt. Perez’s checking account, Petitioner, as personal representative of the estate of Lt. Perez, might have a remedy in another forum to recover such funds from Ms. Perez-Crespo. In any event, such a potential claim, not borne by the evidence presented in the instant proceeding, is beyond the scope of this administrative proceeding. Based on the evidence adduced at hearing and the stipulations of the parties, it is clear that $19,833.21 was received by Lt. Perez when $17,017.80 (after the required deductions) was deposited into his personal checking account. To require Respondent to pay the entire amount of $234,035.81 would result in overpayment of $19,833.21. Respondent is, therefore, entitled to a deduction in the amount of the gross disbursement of $19,833.21.4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Management Services, Division of Retirement, enter a Final Order requiring that that the total sum of $214,202.60 be returned by Respondent to the FRS Investment Plan for the benefit of Lt. Perez, deceased, and that pursuant to section 121.091(8)(a), Florida Statutes, that Petitioner, Aubrie-Elle Perez, as the sole surviving child of and the sole beneficiary of Lt. Perez, immediately receive the amount of $214,202.60. The undersigned reserves jurisdiction to address issues regarding Petitioner’s entitlement to, and the amount of, attorneys’ fees, costs, and interest. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 23rd day of January, 2017.
The Issue Whether Respondent should grant Petitioner's request to change Petitioner's type of retirement from In-Line-Of-Duty (ILOD) disability retirement to regular service retirement, after he had made application for ILOD and received some of those benefits.
Findings Of Fact Petitioner, Ronald Hodge, was employed under the Florida Retirement System (FRS) for 31.34 years. On December 19, 1996, he filed the Application for In-Line-Of-Duty (ILOD) Disability Retirement, Form FR-13, with Respondent, Florida Division of Retirement. The Application for ILOD Disability Retirement was signed by Petitioner in the presence of a notary public. In the lines of text immediately before Petitioner's signature, the Application for ILOD Disability Retirement provides, in relevant part: . . . . 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. (emphasis added) See also Rule 60S-4.002(4), Florida Administrative Code. On February 19, 1997, Petitioner was accepted as permanently and totally disabled by the State of Florida and began receiving Workers' Compensation permanent total disability benefits for the same accident for which his ILOD disability benefits were accepted by the Division of Retirement. On April 25, 1997, the Division notified Petitioner that his application for ILOD disability benefits had been approved, but that since he also qualified for regular retirement benefits, he had several options available to him. With the letter of April 25, 1997, he was given four different estimates of retirement benefits. He was further advised to send his decision in writing. The letter of April 25, 1997, also advised Petitioner that "You have the option of choosing the type of retirement you wish to receive . . . . If you decide to change from disability to service retirement, complete the enclosed application for service retirement, Form FR-11 and return it also." No deadline for changing his service retirement was specified in the letter. At the time of the April 25, 1997, letter Petitioner had not received any retirement benefit payments. Petitioner responded to the Division's April 25, 1997, letter on May 4, 1997. Petitioner clarified that he had ". . . selected F.R.S. ILOD (In-Line-Of-Duty) disability benefit Option 2 . . ." His decision was based on the estimates of benefits enclosed in the Division's letter of April 25, 1997. In June 1997, Petitioner began to receive disability retirement benefits in the monthly amount of $1,850.33. In May 1997, in a case in which neither Petitioner nor Respondent was a party, the Florida Supreme Court ruled that ILOD disability retirement benefits paid to recipients of Workers' Compensation benefits could be used to offset/reduce Workers' Compensation benefits. Escambia County Sheriff's Department v. Grice, 692 So. 2d 896 (Fla. 1997). Importantly, Respondent was not aware at the time that it sent the estimates of benefits to Petitioner in April 1997, of the Supreme Court's decision in Escambia County Sheriff's Department v. Grice, 692 So. 2d 896 (Fla. 1997), in May 1, 1997. However, Respondent was aware of the decision before the election was made and before the first benefit was paid of prior decisions in Barragan v. City of Miami, 454 So. 2d 252 (Fla. 1989), and Brown v. S.S. Kresge Co., 305 So. 2d 191 (Fla. 1974), which limit the combination of such benefits to 100 percent of a claimant's average weekly wage. However, these decisions did not address the offset issue. Respondent never informed Petitioner of this potential reduction when advising him of the selection options. In September 1997, the State of Florida began to take an offset against Petitioner's Workers' Compensation benefits for his disability retirement benefits, thereby reducing the total amount of his Workers' Compensation benefits. If Petitioner had been receiving service retirement benefits, no offset against his Workers' Compensation benefits would have been taken. Based on the effect of the Grice, decision supra. Petitioner sought to change his type of retirement from ILOD disability retirement to regular service retirement. Petitioner's retirement benefit has never been reduced. Petitioner, subsequently filed Application for Service Retirement, Form FR-11, notarized on October 8, 1997, and by letter dated October 7, 1997, which advised that he " . . . had decided to change from disability to service retirement. " Petitioner's Application for Service Retirement was cancelled by Respondent on November 4, 1997, with notice to Petitioner that Respondent's records indicated that he was added to the June 1997 Retired Payroll under ILOD Electronic Fund Transfer (EFT) monthly benefit. Because benefit payments had been deposited, Petitioner's retirement was final. By letter dated December 8, 1997, Petitioner requested reconsideration by the Respondent of its decision to cancel his Application for Service Retirement and to deny his request to change his type of retirement. He stated that he was " . . . not receiving the benefits I was led to believe I would receive because of setoffs taken by the state of Florida on my Workers' Compensation benefits . . . ." He further stated he was misled in that the Division representative informed him that he could change from disability retirement to service retirement by just completing the Form FR-11. At best, the letter of April 25, 1997, is ambiguous as to when the election to change types of benefits could be made and as to whether this letter superseded the previous statement in the original application for ILOD benefits signed by Petitioner that stated he could not change his election of benefits once benefits had been paid. However, the ambiguity in the letter does not constitute a misrepresentation of fact by the Division. The letter simply did not address the issue. Moreover, Petitioner was aware of the language in Form FR-13 that benefit elections were final once benefits were received. Respondent has never reduced or offset any member's benefit, whether disability or regular service retirement, due to receipt of any other benefit. In short, Petitioner's retirement benefit is not being reduced. Moreover, the reduction in Petitioner's Workers' Compensation benefits was not due to Respondent's fault, action, or representation to Petitioner. At the time of retirement, Petitioner was eligible to receive either service retirement because of his more than 30 years of service, or disability retirement because of his ILOD injury. If Mr. Hodge were to be granted service retirement benefits rather than disability retirement benefits, his total monthly payments from the State of Florida (retirement and Workers' Compensation) would be substantially increased.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Division of Retirement issue a Final Order denying Petitioner, Ronald Hodge, the relief sought herein, as Respondent has no basis in law or equity to change Petitioner's type of retirement. DONE AND ENTERED this 28th day of April, 1999, in Tallahassee, Leon County, Florida. 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 28th day of April, 1999. COPIES FURNISHED: Emily Moore, Esquire Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Anthony J. Salzman, Esquire Moody and Salzman, P.A. Post Office Drawer 2759 Gainesville, Florida 32602 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact The Division of Retirement will make no Findings of Fact relating to whether Petitioner's disability was in-line-of-duty. Accordingly, for the reasons mentioned previously, all findings contained in paragraphs 5, 6, 7, and 8, of the recommended order are rejected. However, the Division accepts the remaining Findings of Fact contained in the recommended order. As taken from the order these findings are: Herman Williams was an employee of the Department of Transportation and a member of the Florida Retirement System. The Division of Retirement approved payment of regular disability benefits to Herman Williams. Herman Williams is currently receiving and accepting these benefits. Herman Williams is an illiterate Seminole Indian, 62 years of age. Williams' duties with the Department of Transportation were driving a mowing tractor and cleaning out roadside ditches. Williams worked for the Department of Transportation approximately 21 years 11 months prior to being placed on the retired roles [sic]. On May 1, 1975, Williams was driving his tractor in the course of his regular employment at the Department of Transportation when the power steering of the tractor malfunctioned causing the front wheels to swerve violently, wrenching the steering wheel in Williams' hands and nearly throwing him from the tractor. Repairs had to be made to Williams' tractor by a Department of Transportation mechanic because the tractor was inoperative. The mechanic discovered a loose nut in the power steering assembly when he exchanged the power steering unit in Williams' tractor with another from the maintenance yard. When the new unit was installed in Williams's tractor it functioned normally. When the power steering from Williams' tractor was installed in the other tractor, it also functioned normally. The mechanic stated that the loose nut which he had discovered could cause the tractor to swerve violently in the manner Williams' had described. On the afternoon of May 1, 1975, Williams reported this instant [sic] to his supervisor, David McQuaig. Mr. McQuaig inquired as to any injuries to Williams and the tractor. Williams reported to McQuaig that the tractor had not been harmed and that he was only sore and stiff. No report of injury was prepared by McQuaig whose duty it was to file such reports. Williams' condition did not materially improve after seeking medical treatment by Dr. Albritton. Williams remained on sick leave until August 11, 1975, when it was exhausted. Williams then took annual leave from August 12, 1975 until September 23, 19975, when his retirement became effective. When the Petitioner's sick leave was exhausted, he was contacted by his supervisor in the Department of Transportation. He suggested that Williams could retire on disability if two physicians would state that he was disabled. This letter was read to Williams by his son, Eddie, because Williams is illiterate. Retirement application forms were provided Williams by the Department of Transportation. The physician report forms were completed by Dr. Albritton and Dr. Wilkerson. The statement of disability by employer form was completed by Williams' supervisor, David A. Young, Maintenance Engineer, for the Department of Transportation. Young stated that he completed the Statement of Disability by Employer, indicating that the application was for regular disability benefits because he had determined that no workman's compensation claim had been made by Williams and because Dr. Wilkerson's medical report had stated that the injuries occurred at Williams's home. The determination that the application was for regular disability benefits was solely Young's. The Application for Disability Retirement signed by Williams was prepared by personnel at the Department of Transportation District Office. This form was signed by Herman Williams; however, this form does not make provision for the member to state the nature of the disability benefits sought. Eddie Williams, son of Herman Williams, took his father to sign the forms at the Department of Transportation office. These forms were not explained to Williams, nor did Eddie Williams read them. Herman Williams was also unaware that such a benefit existed. Herman Williams stated he sought disability benefits based upon his injury on the job. Disability retirement was not discussed between Herman Williams and David Young. Based upon the application submitted in his behalf, the Division of Retirement made a determination that Williams was entitled to regular disability benefits. Williams was unaware that he was not receiving the in-line-of-duty benefits until his son inquired as to how much money he was receiving. When he was advised, he told his father that it appeared to be too little money. At this point Eddie Williams discovered that the application had been for regular disability.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the administrator permit the applicant to file an amended application for disability in-line-of-duty retirement, and, further, that said application be approved. DONE and ENTERED this 8th day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. W. Chalkley, III, Esquire Post Office Box 1793 Ocala, Florida 32670 Douglas Spangler, Jr., Esquire Asst. Division Attorney Division of Retirement 530 Carlton Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT DEPARTMENT OF ADMINISTRATION HERMAN H. WILLIAMS, Petitioner, vs. CASE NO. 77-982 STATE OF FLORIDA, DIVISION OF RETIREMENT, Respondent. / FINAL AGENCY ORDER A petition for formal proceedings having been duly filed, and a request for hearing officer having been duly made, a hearing was held in the above-styled cause pursuant to the provisions of Section 120.57(1), Florida Statutes, before the Honorable Stephen F. Dean, Hearing Officer, in Ocala, Florida, on September 15, 1977. The Petitioner requested relief from the Division's determination that Petitioner was not entitled to resubmit an application for disability retirement requesting in-line-of-duty disability retirement benefits because he had previously applied for and accepted regular disability retirement. The purpose of the hearing was to determine the factual basis for Petitioner's claim that he should be allowed to apply for in-line-of-duty disability retirement benefits. APPEARANCES AT THE HEARING: Eric E. Wagner, Esquire J. W. Chalkey, III, Esquire Law Offices of Eric E. Wagner, P.A. Post Office Box 1763 Ocala, Florida 32670 For the Petitioner E. Douglas Spangler, Jr., Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81 Tallahassee, Florida 32303 For the Respondent The Hearing Officer entered his Recommended Order on December 8, 1977, in which he sustained Petitioner's assertion and concluded, on the basis of the findings made as a result of the hearing, that Petitioner should be entitled to resubmit his application and request in-line-of-duty disability benefits. In addition to this determination, the Hearing Officer found that Petitioner was in fact entitled to in-line-of-duty disability retirement benefits. In making this latter conclusion, both as a matter of fact and of law, the Hearing Officer went beyond his scope of authority. As will be developed more fully herein, the Hearing Officer was without jurisdiction to consider the issue of whether Petitioner was in fact entitled to the in-line-of-duty benefits. Therefore, so much of the recommended order as purports to address this issue is of no effect, being the result of a hearing that did not comply with the essential requirements of law.
Findings Of Fact Based upon my observation of the witness and her demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Petitioner, Sheah Rarback is the daughter, and Petitioner Mae Rarback is the wife of Paul Rarback, deceased. Paul Rarback and Mae Rarback were married for over forty (40) years. Paul Rarback commenced employment in a permanent position with the Human Resources Department, Metropolitan Dade County, in December of 1973. Mr. Rarback was employed as a food services manager. On December 23, 1973, Paul Rarback enrolled with the Florida Retirement System and submitted a Personnel History Record Form FRS-MIO to the Division of Retirement. On the form, Paul Rarback listed his two grandsons, Hod and Caynon Rabino, as beneficiaries and Sheah Rarback as contingent beneficiary for the purpose of receiving benefits in the event of his death. On February 1, 1985, Paul Rarback requested an Application for Disability Retirement from his employer because of polymyositis (muscle atrophy). On February 23, 1985, Paul Rarback's employment with Metropolitan Dade County officially ended. Rarback's personnel file indicated that his employment was terminated with a code E/G, which is a retirement code. On March 18, 1985, Paul Rarback completed his "Application for Disability Retirement," Division of Retirement Form FR-13. Rarback listed his daughter Sheah Rarback as the beneficiary and chose "Option 1: Maximum Benefit." The FR-13 form listed four different options as follows: Option 1: Maximum Benefit Full benefit payable to the member for his lifetime. If death occurs before the total benefits paid to member equals the contributions made, the difference, if any, is refunded to beneficiary in a lump sum payment. Option 2: Ten Years Certain Lifetime benefit to member, but not less than 120 monthly payments to someone. A decreased retirement benefit payable to a member during his lifetime and, in the event of his death within a period of ten (10) years after his retirement, the same monthly amount shall be payable for the balance of such ten (10) year period to his beneficiary, or in case the beneficiary is deceased, in accordance with Section 121.091(8), Florida Statutes, as though no beneficiary has been named. Option 3: A reduced monthly benefit payable to the retired member for his lifetime and upon his death a monthly benefit in the same amount is payable to his joint annuitant (spouse or other dependent designated at retirement), if living, for the lifetime of that person. Option 4: A reduced monthly benefit payable to the retired member while he and his joint annuitant are both living. Upon the death of either the retired member or his joint annuitant, the monthly benefit payable to the survivor for the lifetime of that person is reduced to two-thirds of the original benefit even if it is the retired member who is the survivor. During the previous ten years, Mae Rarback had become increasingly senile, was unable to care for herself and had been placed in various nursing homes. Mae Rarback is presently in Douglas Gardens Nursing Home, Miami, Florida, where she has been for the past four years. By letter dated June 27, 1985, the Division of Retirement advised Paul Rarback that it intended to deny his request for disability retirement benefits because the medical documentation submitted did not support his claim of permanent and total disability. In addition, Rarback was advised that he could apply for early service retirement, with a reduction in benefits of 5 percent for each year under age 62 or in the alternative, he could request a refund of his retirement contributions and cancel his membership with the system. The last paragraph of the letter stated in part as follows: . . . before a final decision is made, the Director wants you to have the opportunity to submit additional medical evidence or a written statement, if you wish to challenge the grounds on which he intends to act. If you chose to submit additional evidence or written statement, it will be considered in making the final decision. On June 29, 1985, Paul Rarback died in Miami, Florida. By letter dated February 26, 1986, the Respondent advised Sheah Rarback, through her attorney, that according to their files, the primary beneficiary of Paul Rarback's account was Sheah Rarback, designated on March 28, 1985. On or about July 23, 1986, Petitioner Sheah Rarback received notification from the Division of Retirement that she would receive only the accumulated contribution of Paul Rarback to the retirement account in the amount of $887.67.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioners' request that the designation of beneficiary be reformed to allow Mae Rarback to receive the benefits from her deceased husband's retirement account as though she had originally been designated the beneficiary and joint annuitant be DENIED and the petition DISMISSED. DONE AND ORDERED this 5th day of June 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June 1987. COPIES FURNISHED: Stewart Marcus, Esquire 2251 S.W. 22nd Street Miami, Florida 33145 Burton M. Michaels, Esquire Assistant Division Attorney Division of Retirement 2639 North Monroe Street Building C - Suite 207 Tallahassee, Florida 32303 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Division properly denied Petitioner's request to change Petitioner's retirement in the Florida Retirement System from an early retirement service benefit to disability retirement.
Findings Of Fact Respondent is charged with managing, governing, and administering the Florida Retirement System ("FRS"). Royal worked for the Florida Department of Transportation ("DOT") over 28 years. As a prior employee of DOT, Royal is a member of the FRS. Royal was injured on his job on July 16, 2002. After being informed by the Social Security Administration that he was disabled, Royal started applying for line-of-duty disability retirement with the FRS. Since Royal's injury, Royal has gotten his neighbor, Levern Speights, to prepare his retirement applications and write letters to the Division on his behalf. Royal signs every submission. Royal first applied for disability retirement on December 19, 2003. About three months later, Royal applied for early service retirement benefits on or about March 9, 2004. Directly above Royal's signature, the application stated: 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. While the two applications were pending, Royal contacted the Division to check on the status of his disability retirement application. During the call, Royal found out that he could obtain retirement monies immediately if he wrote a letter requesting early retirement. On or about April 12, 2004, Royal submitted a letter to the Division that stated he "wish[ed] to apply for early service retirement." Upon receipt of the April 12, 2004, letter, the Division switched Royal's application from a disability application to early retirement application and Royal went on the Florida Retirement System payroll effective March 1, 2004. Royal has been receiving early service retirement checks and cashing or depositing them since March 2004. However, Royal still believes he is entitled to disability retirement benefits since he is disabled. Throughout the years, Royal has continuously contacted the Division periodically in an effort to still try and get disability retirement benefits. In January, April, and May 2006, the Division received three letters from Royal questioning his receipt of early service retirement benefits and requesting to apply for in-line- of-duty disability retirement benefits. On May 16, 2006, Royal applied for disability benefits again. On June 3, 2006, the Division responded to Royal's request by letter stating: The Division of Retirement has received your letter requesting that you receive disability benefits. Our records indicated you are receiving a service retirement benefit. According to Chapter 60S-4.002(4), Florida Administrative Code, you cannot change your option selection, purchase additional service, or change your type of retirement after you have cashed or deposited any benefit payment. Therefore the Division is unable to honor your request.[2] On December 24, 2008, Royal wrote the Division and requested that his "retirement be changed to disability retirement to reflect my current condition."3 On January 21, 2009, the Division informed Royal again by letter that "Florida law does not have provisions that allow the Division of Retirement to change a member's retirement type from service retirement to disability retirement. Therefore, your service retirement benefit is final and cannot be changed to disability retirement." Royal contacted the Division on several more occasions trying to get disability benefits. On or about June 25, 2011, Royal requested a hearing regarding the issue.
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 denying Petitioner's request to change his early service retirement benefit to disability retirement. DONE AND ENTERED this 22nd day of December 2011, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 22nd day of December, 2011.
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.
Findings Of Fact The parties entered into a stipulation, which is attached hereto and made a part hereof, but is quoted for the sake of clarity: Stipulated Facts Petitioner is Charles E. Kellum whose address is 10420 SW 119th Street, Miami, Florida. Petitioner is a forty-two (42) year-old male whose education consists of a graduate equivalency degree received while serving in the Air Force from 1954 through 1958. His Air Force work and training was as a fire fighter in the Crash Rescue and Fire Department of the United States Air Force. In 1959, Petitioner became employed with the Sheriff's Department of Dade County, Florida, as a motorcycle officer and first joined the Florida retirement system then in effect for county employees. Later, Petitioner changed to what is now known as the Florida Retirement System. While employed by Dade County, while on duty, and while a member of the Florida Retirement System or its predecessor, Petitioner was involved in four (4) accidents. The accidents and injuries sustained are as follows: In 1964, Petitioner was in a motorcycle accident for which he first received treatment from Dr. Samartino for abrasions and contusions; In a separate motorcycle accident, on February 16, 1965, Petitioner sustained a fractured radial head of the right elbow. In surgery that month the radial head was removed. In April, 1965, the end of the ulna was removed. In November, 1965, certain reconstructive surgery was attempted to increase the motion in his right arm. Subsequent reconstructive surgery was attempted in February, 1966. (Deposition of Dr. Samartino, pages 8 - 11); In an on-duty accident in March, 1970, Petitioner fell and injured his knee and underwent surgery on the knee in April of 1970. In May, 1974, Petitioner was involved in an accident wherein, while making an arrest, he fell on a rocky terrain and suffered re- injury to his arm and knee and injury to his back. (Deposition of Kellum, pages 4 - 5). That Petitioner was retired from Dade County for medical reasons in May, 1974. He has not been employed since, except for approximately one year he was operating a small lawn maintenance business with the help of his son and another helper. His activities are limited to driving a truck and soliciting business. Stipulated Evidence Exhibit 1 - The deposition of Charles Kellum, Petitioner Exhibit 2 - The application for retirement benefits filed December 9, 1974, and the employer's statement of disability dated December 6, 1974. Exhibit 3 - The reports of Dr. Toth dated December 9, 1974, and August 6, 1974. Exhibit 4 - The reports of Dr. Gilbert dated December 9, 1974, and October 30, 1974. Exhibit 5 - The reports and deposition of Dr. Samartino. Exhibit 6 - The reports and deposition of Dr. Jacobson. Exhibit 7 - The deposition of Harry Windler, pages 8 - 14 and pages 19 - 36. Exhibit 8 - The letter from the Director of Retirement dated April 10, 1975. Upon a consideration of the evidence further findings of fact are: The various in-line-of-duty injuries and back pain suffered by Petitioner caused his involuntary retirement from the Dade County Department of Public Safety in 1974, after an injury on May 4, 1974. Petitioner applied for work with the police department, and wants and has wanted to return to some kind of law enforcement or police work. Respondent through its administrator, as provided in Section 121.091(4), Florida Statutes, denied Petitioner Kellum's disability retirement benefits by letter dated April 10, 1975, a copy of which is marked Exhibit "A" and make a part hereof. Petitioner requested an administrative hearing in April of 1975. The Respondent denied the petition as being untimely but thereafter revoked the denial and requested the Division of Administrative Hearings to hold a hearing on the issues presented. The employer, Metropolitan Dade County Department of Public Safety, in its statement of disability stated that "physicians' statements indicate that this employee is unable to perform police duties." It also stated that no other jobs in the organization, suitable to the applicant's abilities, exist consistent with his classification. The departmental policy of the Metropolitan Dade County Department of Public Safety is to phase out employees who have become liabilities from an insurance risk management point of view. Because of the stringent minimum physical requirements imposed upon law enforcement officers in Dade County, Florida, Petitioner cannot perform his duties as a policeman or law enforcement officer and could not be re- employed in that position. There are no permanent sheltered positions for law enforcement personnel. Doctors Alex Toth and Robert G. Gilbert stated that Petitioner's condition is "prognosis guarded." They both stated that Petitioner was unable to perform regular duties. Dr. Toth stated Petitioner was "completely disabled," and Dr. Gilbert stated "for all intent and purposes, this patient is totally disabled." Dr. G. Thomas Samartino, in answer to the question, "At this time, in 1977, do you forecast any further degeneration in his health due to that particular diagnosis?" (degenerative arthrosis of the right elbow), answered "Yes." He further stated that he could not really forecast disability but that "it may stay pretty much the way it is or get a whole lot worse," and noted that there has been no improvement since 1966. He stated Petitioner suffered a 35 percent disability of the upper right extremity and a 30 percent disability of the body as a whole, which includes pain. All three physicians stated that they felt the Petitioner should not be employed as a policeman. Dr. Robert E. Jacobson, a neurologic surgeon, stated that from the functional standpoint the Petitioner would be unable to return to work as a combat policeman, although he could do other type of work. He also stated that the numerous injuries and back and neck complaints would add up to a more marked problem than any one would imply. Petitioner's training was as a fire fighter in the crash rescue fire department while in service of his country from 1954 to 1958. He joined the service immediately out of high school and, before his discharge, took the GED test to get a high school certificate. His employment and further training has been in police work, being employed by the Metropolitan Dade County Public Safety Department in October of 1959, a position he filled for fifteen, (15) years. His training after Air Force service consists of little more than on- the-job training for his employment as a motorcycle officer. Petitioner was self-employed, driving a truck and soliciting business together with two other persons in the yard maintenance work. He applied without success for at least two positions with private employers, but he has not applied for rehabilitative training. His remuneration from his self- employment was approximately $6,000.00 per year, substantially lower than he earned as a police officer, which pay classification is approximately $8,000.00 to $20,000.00. Petitioner is totally and permanently disabled from rendering useful and efficient service as an employee in police and law enforcement work, but he can perform a useful work service. Petitioner contends: That he is permanently and totally disabled from doing the police or law enforcement work for which he is trained and for which he had been employed for some fifteen (15) years, and that his disability arose from his work; That he is unable to perform materially or substantially all or any of the remunerative duties for which he is educated and trained, and which might permit him to be compensated at or near the compensable rate of a Dade County policeman; and That he is entitled to the disability benefits authorized by Section 121.091(4), inasmuch as he is totally and permanently disabled to perform duties as a police or law enforcement officer because of injuries he received while on such duty. Respondent contends: That Petitioner is not totally and permanently disabled hut only partially disabled, and can and does work and earn an income although he is disabled from performing the duties of his normal occupation; and That a showing that Petitioner is incapable of performing duties of his usual occupation is not sufficient to obtain disability retirement benefits under the statute.
Recommendation Grant Petitioner Charles E. Kellum disability retirement benefits. DONE and ORDERED this 24th day of May, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Melvin R. Horne, Esquire Post Office Drawer 1140 Tallahassee, Florida 32302 Stephen S. Mathues, Esquire Division of Retirement 530 Carlton Building A Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF RETIREMENT CHARLES E. KELLUM, Petitioner, vs. DOAH CASE NO. 77-465 DIVISION OF RETIREMENT, Respondent. /
