Findings Of Fact Acco Mechanical Contractors, Inc. is a subcontractor in the construction of a regional juvenile detection center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services was in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of this project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between April 10, 1977 and October 16, 1977, Charles G. Mathis was employed by Acco Mechanical Contractors, Inc. as a plumber on this project and paid at the rate of $7.50 per regular time hour and $11.25 per overtime hour. Between October 16, 1977 and June 25, 1978, Mathis was employed on this project as a plumber and paid at the rate of $8.25 per regular time hour and $12.37 per overtime hour. The difference between the amount paid Petitioner for regular time hours worked and the prevailing wage is $2.50 per regular time hour during the period he was paid $7.50 an hour and $3.85 per hour for the period he was paid $11.25 for each overtime hour. The difference between the amount paid Petitioner for regular time hours and the prevailing wage was $1.75 for the period of time he was paid $8.25 for regular time hour and $2.73 for the period he was paid $12.37 for each overtime hour. The evidence conflicts concerning the number of hours the claimant worked. The Hearing Officer finds that the records of the Respondent Company, Exhibit 6, accurately reflects the number of regular and overtime hours the claimant worked on this project. Exhibit 6 reflects that the claimant worked 891.5 hours at a rate $7.50 an hour and 23 hours at the rate of $11.25 an hour, overtime. Exhibit 6 further reflects that the claimant worked 1,172 hours at a rate of $8.25 an hour and 76.5 hours at the rate of $12.37 per hour, overtime. The Petitioner was underpaid the amount of $2028.75 for regular time hours worked at the rate of $7.50 per hour; $2,051.00 for the hours worked at the rate of $8.25 an hour; $208.85 at the rate of $12.37 an hour; and underpaid $88.50 at the rate of $11.25 an hour, for a total of $4,577.10. Petitioner complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount paid for said hours. Said affidavit was filed within the time prescribed by statutes. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is presently withholding $5,844.56 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Recommendation Based upon the foregoing Findings of Fact anus Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $4,577.10 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 Charles G. Mathis 942 Montego Drive West Palm Beach, Florida 33406
Findings Of Fact Respondent contracted to build a gymnasium and a science research center on the campus of Florida Technological University. petitioner was among the people respondent hired to perform this contract, which had project number BR-FTU-172. Petitioner began working for respondent on or about January 12, 1976. At that time, respondent's agent Ward hired petitioner as a carpenter's helper with the understanding that petitioner would be paid at the laborers' rate of five and thirty hundredths dollars ($5.30) per hour. The prevailing wage for carpenters on project number BR-FTU-172 was eight and thirty-five hundredths dollars ($8.35) per hour. As reflected in their respective proposed recommended orders, the parties are in agreement that petitioner worked for respondent doing carpentry from March 31, 1976, until his employment ended, and it is so found as a fact. From March 31, 1976, until petitioner left respondent's employ, petitioner worked as a carpenter for one thousand five hundred eighty-three hours during regular working hours and for ten and a half hours overtime. At the same time that petitioner was hired, one Lester Dove was hired as a carpenter. Petitioner worked with Lester Dove as a carpenter's helper for their first full two weeks on the job, at the end of which Lester Dove was laid off. Petitioner helped Lester Dove erect wooden forms for the pouring of concrete columns. Afterwards, he continued to work at erecting wooden forms for concrete columns. The forms consisted of two plywood halves, approximately sixteen feet long and weighing approximately one hundred pounds each. It took more than one man to stand the forms upright. After the forms were in place, they had to be clamped together Carpenters built the column forms on the job site, but outside the building under construction. Petitioner worked inside, placing the forms in position. Sometimes the forms had to be shortened or otherwise altered "right there on the floor, not back at the saw." Testimony of Carlo Rinaldi. Generally, however, it was a matter of transferring measurements from blue- prints to the floor, nailing a template to the floor, fitting the form halves together around the template, clamping the form together, then checking to make sure the column was plumb and the corners were square. After Lester Dove's departure, petitioner, Ralph Pierson, whom respondent hired as a carpenter, and one Carl, whom respondent hired as a laborer, worked together as a team erecting forms for pouring the concrete columns through March 30, 1977. During this time petitioner worked not as a carpenter, but as a carpenter's helper, paid at the prevailing rate for laborers. For the entire time petitioner worked for respondent, he was paid at the rate for laborers. STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976 Paragraph one of respondent's proposed findings of fact has been adopted, in substance, as has been paragraph two of respondent's proposed findings of fact. Petitioner's testimony was that he worked for respondent from mid-January 1976 to mid-January 1977. Petitioner's composite exhibit No. 1 contains xeroxed reproductions of 49 paycheck stubs. Petitioner's affidavit alleges that he worked a total of 2,031 3/4 hours during regular working hours. Respondent, in paragraph five of its proposed findings of fact, concedes that petitioner worked 1,583 1/2 hours during regular working hours from and after March 31, 1976. Between January 12, 1976, and March 30, 1976, inclusive, there were 57 working days, or 456 working hours. Adding 456 to 1,583 1/2 yields 2,039 1/2. Thus the parties are only eight and one quarter hours, or approximately one working days apart and it is respondent who gives petitioner credit for the longer total work time. Petitioner claims more work time before March 31, 1976, than respondent concedes, but respondent's proposed finding of fact as to the starting date is more favorable to petitioner. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance. Paragraph three of petitioner's proposed findings of fact has not been adopted because the testimony as to general carpentry, as opposed to erecting column forms, did not go to "the entire period of employment." Paragraph four of petitioner's proposed fact findings has not been adopted, either as to regular hours or as to overtime hours. Respondent's concession of ten and a half hours overtime has been accepted as true. Paragraph five of petitioner's proposed findings of fact has been adopted, in substance. Paragraph one of respondent's proposed findings of fact has been adopted, in substance. Paragraph three of respondent's proposed findings of fact has been adopted, in substance. Petitioner as much as conceded that he worked as a carpenter's helper or laborer until Dove left. After that, until the end of March, he continued doing essentially the same work. The hearing officer was faced with the question whether the three man team putting up column forms consisted of a carpenter and two helpers or a helper and two carpenters. Petitioner did not meet his burden to show that he was one of two carpenters rather than one of two helpers. Paragraph four of respondent's proposed findings of fact has been adopted, in substance, except that no findings have been made as to the date of petitioner's first written claim to respondent or as to the contents of respondent's bookkeeping records, because no evidence was adduced on these matters. Paragraph five of respondent's proposed findings of fact has been adopted, in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the contracting authority pay petitioner the sum of four thousand eight hundred seventy-seven dollars and seventy-one cents ($4,877.71). That the contracting authority pay respondent the balance of moneys heretofore withheld, pursuant to Section 215.19 ()(b) Florida Statutes (1975), with respect to project number BR-FTU-172. DONE and ENTERED this 28th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. T. M. Woods, Esquire Suite 1465, CNA Tower 255 South Orange Avenue Orlando, Florida 32801 Mr. Bromley Dyson Dyson and Company Post Office Drawer F Pensacola, Florida 32581 Mr. Patrick G. Emmanuel, Esquire Post Office Drawer 1271 Pensacola, Florida 32596 Mr. Jack C. Koons Department of General Services 512 Larson Building Tallahassee, Florida 32304 Mr. Luther Moore Administrator of Prevailing Wage Department of Commerce Division of Labor 1321 Executive Center Drive - East Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to a vocational evaluation for formal training and education sponsored by the Division of Worker’s Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact On April 30, 1996, Petitioner herniated a disc while lifting materials in the course of his employment as an electrician with General Electric Contracting. He was working at the time as a lead electrician doing residential and commercial installations and repairs. Petitioner underwent low-back surgery about a year later. On May 21, 1997, the surgeon determined that Petitioner had reached maximum medical improvement. The surgeon assigned Petitioner a 9 percent impairment rating and restricted him to lifting up to 35 pounds occasionally, up to 20 pounds frequently, standing and walking four to six hours during an eight-hour day, and driving five to eight hours during an eight-hour day. The surgeon advised Petitioner to avoid bending, squatting, and crawling. Petitioner is 50 years old. He has a high school diploma. Apart from one year's additional coursework in business at a community college, Petitioner has no other formal education. At the time of his injury, Petitioner had been employed as an electrician at General Electric Contracting for six or seven years. After high school, Petitioner served in the U.S. Navy from 1966-70, specializing in weapons. After his honorable discharge, Petitioner worked for two years in route sales--the first year selling ice cream and the second year selling pet supplies. After these jobs, Petitioner began working as an electrician. Petitioner has since worked continuously as an electrician except for the period from 1975-78. During this time, Petitioner opened a sporting goods store in East Fort Myers devoted exclusively to hunting and fishing. Failing to obtain financing for his business, which was not very profitable, Petitioner tried to sell the store, but could obtain no more than the cost of the inventory. He then returned to work as an electrician. Due to his physical limitations occasioned by his work-related injury and surgery, Petitioner can no longer work as an electrician. At the time of his injury, Petitioner was earning an average weekly wage of $554.86. Petitioner has vigorously attempted to find suitable appropriate employment, given his past earnings and current physical limitations. Respondent has given him two job leads as a Code inspector. However, Petitioner failed to get the first job. His application for the second is still pending, but he has not been called for an interview in the six weeks since submitting his application. There is some question whether Petitioner can do the job, which may require bending, squatting, and lifting, but Petitioner has nonetheless pursued this opportunity enthusiastically. On July 9, 1997, Petitioner submitted a request for screening to determine his suitability for a vocational evaluation. Respondent conducted the screening and determined that Petitioner has sufficient transferable skills to allow him to return to suitable gainful employment without a vocational evaluation or vocational training or education. In defending this decision, Respondent's witnesses emphasize the negotiation and marketing skills that Petitioner has presumably developed in his long career as an electrician. However, there is no evidence that Petitioner has developed such skills in any of his prior employment. Respondent's witnesses also emphasize the managerial and bookkeeping skills that Petitioner has also presumably developed, but, again, the record does not reveal that Respondent developed marketable skills of these types in his prior employment. Besides the two leads as a Code inspector, the other leads that Respondent has supplied Petitioner are unsuitable due to physical demands or pay, require skills that Petitioner does not possess, are unavailable in Southwest Florida, or present little chance for employment for a person of Petitioner's education, age, and background. In satisfying his burden of proving entitlement to a vocational evaluation in order to obtain suitable gainful employment, Petitioner's months of good faith, but unsuccessful, job searching persuade more than Respondent's well-intentioned, but speculative or unsuitable, job leads. It is now time for Respondent to provide Petitioner with a vocational evaluation.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order granting Petitioner’s request for training and education sponsored by the Division. DONE AND ENTERED this 13th day of May, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902-2485 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Edward A. Dion, General Counsel Office of the General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue Whether Respondent has complied with the Final Order of the Florida Commission on Human Relations.
Findings Of Fact On July 9, 1990 after an evidentiary hearing on the Petitioner’s charge of racial discrimination, a Recommended Order was issued in favor of Petitioner. On June 18, 1992, after reviewing Respondent’s exceptions to the Recommended Order and after argument of Respondent’s counsel at a hearing before the Commission, the Florida Commission on Human Relations entered a Final Order in favor of the Petitioner, Ronnie Wideman. The Final Order stated in part: That the Respondent cease and desist from engaging in unlawful employment practices of this nature; That Respondent offer to promote Petitioner to the next available Quality Support Process Engineer or substantially similar position; That Respondent pay Petitioner back pay and benefits to which he would have been entitled had he received the Quality Support Process Engineer position; That Respondent pay Petitioner reasonable attorney’s fees incurred in litigating this claim, and That the Respondent notify the Commission in writing within 20 calendar days of the date of filing this Order of the steps that have been taken to comply with this Order. The Final Order was received by Respondent, filed and forgotten. The person who was responsible for filing and notifying the Pensacola plant of the Order’s requirements was the same person who failed to show for the original hearing in 1990. No appeal of the Final Order was filed by the Respondent. There was no attempt by Respondent to comply with the provisions of the Final Order, including the reporting, promotional and salary requirements of the Final Order. There are two relevant categories of jobs at Respondent’s facilities. There are hourly paid or non-exempt jobs and salaried administrative or exempt jobs. The exemption refers to whether the job is exempt from the union contract and collective bargaining. All of the salaried jobs at Respondent’s facilities are graded based on job responsibilities. The grades range from Grade 8 to Grade 25. The grade of a position relates to a salary structure for each grade. The salary structure provides for a range of salaries divided into thirds. A salary range for a grade often overlaps the salary range for the adjoining grade levels. The salary grade schedules for 1988-1996 are contained in Appendix 1 of this Recommended Order. Petitioner has been continuously employed with Respondent since 1976. He has been employed as a “paper tester/technician” since before the original charge of discrimination was filed in this case and held such a position at the time of the final hearing in 1990. The actual position title has varied over the years and has been assigned to different work sections over the years. However, Petitioner’s work in his job has remained essentially one of testing the quality of the paper Respondent makes and entering the data in the computer for analysis. Although he has never been promoted to the position of shift supervisor, Respondent has at various times filled some of the duties of the shift supervisor’s position, Grade 14. Petitioner has been and continues to be considered a competent and capable employee by Respondent. The position of “paper tester/technician” was throughout the time period involved in the original charge of discrimination to the present an hourly-paid position. Hourly paid employees can be required to work overtime and are paid for overtime work at the rate of the employee’s hourly rate plus one-half the hourly rate. Hourly employees receive pension benefits through a non-contributory plan. Hourly employees also can participate in 401-K retirement plans. The hourly employee’s contributions to a 401-K plan are matched at .50 cents on the dollar by the Respondent. However, the maximum amount an hourly employee can contribute to that employee’s 401-K plan is capped at $800.00. Since 1988, Petitioner’s hourly rate of pay has been, as follows: Ronnie Wideman SSN 250-94-9677 Position Effective Date Hourly Rate of Pay Paper Test 3B 08/01/88 $13.39* Paper Test 4B 03/23/89 13.90* Paper Test 4B (GWI) 07/01/89 14.25* Paper Test 4B (GWI) 07/01/90 14.54* Paper Test 4B (GWI) 07/01/91 14.90* Paper Test 4BC 05/09/92 15.46* Paper Test 4BC (GWI) 07/01/92 15.85* Paper Test 4BC (GWI) 07/01/93 16.25* Central Lab D 12/13/93 16.67 Paper Test 4BC 05/10/94 16.25* Paper Test 4BC (GWI) 07/01/94 16.66* Central Lab D 07/18/94 17.09 Central Lab 2D 08/26/94 17.29 Paper Test 4BC 04/05/95 16.66* Paper Test 4BC (GWI) 07/01/95 17.16* Central Lab 2D 01/23/96 17.81 Central Lab 3D 03/04/96 18.04 Central Lab 4D 05/10/96 18.24 Central Lab 4D (GWI) 07/01/96 18.79 Central Lab Family E 10/03/96 19.71 Petitioner also received at various times throughout the time period shown above an additional $.73 cents an hour for every hour worked as a Continuous Process Allowance for the difficulties of maintaining a four-shift job schedule necessitating working approximately 2300 hours per year. The pay periods during which Petitioner received the added Continuous Process Allowance are marked with an asterisk. The position of Quality Support Process Engineer was the position to which Respondent unlawfully failed to promote Petitioner and formed the basis of the original charge of discrimination. In 1988, when Petitioner should have been promoted, there were two openings for a quality support process engineer. The grade level was not advertised, but Respondent was told by a lab technician that the salary would range from $40,000.00 to $45,000.00 per year. The $40,000.00 range would have caused the position to fall within the grades 11, 12, 13 or 14. 11. The position of Quality Support Process Engineer was a salaried position with an annual salary based on the position’s grade level and the employee’s credentials and experience. As a salaried employee, the employee does not receive overtime pay, but still may be expected to work overtime in order to perform all the responsibilities of the position. Salaried employees receive pension benefits and can make up to a 6 percent contribution to that employee’s 401-K retirement plan which is matched at .50 cents on the dollar by Respondent. There is no cap on the amount of the contribution other than the 6 percent contribution. The position involves the supervision of the work of the “paper testers/technicians” and the laboratory in which the paper testing is performed. The position also involves attempting to resolve poor paper quality issues, as well as coordinating paper quality problems or issues with senior and field engineers and customers. Respondent prefers a person with a science degree to fill this position, but, as is obvious from the promotions described later, also recognizes a person’s knowledge gained through work in the paper field. In the past, Respondent has promoted employees to the position of Quality Support Process Engineer or similar position’s based on field experience absent a scientific degree. The position has had various titles and been housed in different areas due to Respondent’s reorganization of the various processes of papermaking. Those processes are cutsize, offset, market pulp and pulp. Essentially, Respondent has reorganized its work force at least twice. Beginning in 1991, The technical (paper testers) department and the quality departments were combined into a centralized technical department. The reorganized department still had people which performed quality process engineer functions, shift supervisors and paper testers. In fact, the functions of each person’s job didn’t substantially change. In 1995, the centralized department was eliminated and the technicians, quality support and supervisors were distributed between the various systems of cutsize, offset, market pulp and pulp. At about the same time, the shift supervisor positions were eliminated. The people who filled those positions remained, but transferred to more defined quality support positions under a new engineer grade system. In August of 1988, Charles C. “Red” Bradford (white male) was promoted to one of the two Quality Support Process Engineer positions. Mr. Bradford had been employed at Champion since 1956. Considerably longer than Petitioner. For a year prior to his promotion, Mr. Bradford had worked as the shift supervisor. Prior to shift supervisor, he had been a paper tester along with Petitioner. Upon promotion he received a salary of $45,500.00, even though he did not have a college degree. The position carried a grade level of 14. Mr. Bradford’s promotion was not discriminatory because of his greater experience in papermaking. At the same time, Kathy Dyess (white female), who was hired in 1983 performed the duties of an administrative clerical secretary but had a college degree in biology, was promoted to the second opening for Quality Support Process Engineer. She received a salary of $26,500.00 The position carried a level of Grade 10. Her promotion was discriminatory because of her lesser qualifications for the position when compared to Respondent’s. Because she had fewer qualifications for the position her starting position and subsequent work history since 1988 cannot be used to establish the salary Petitioner should have had if he had been promoted instead of Ms. Dyess. Clearly, Petitioner was entitled to make more than Ms. Dyess given his greater qualifications. Promotions which occurred in later years to substantially similar quality support positions given to David Currey and William Findley reflect a salary and grade level of Neither David Curry, nor Charles Findley had a college degree in the hard sciences, David Currey was hired as an hourly employee in 1971, four years before Petitioner, but is the most similar to Petitioner. Charles Findley was hired as an hourly employee in 1959 and is more similar to Red Bradford based on his greater number of years of experience. Both Mr. Currey and Mr. Findley were shift supervisors prior to their promotions to positions similar to Quality Support Process Engineer. Thus, except for Kathy Dyess’ promotion to Quality Support Process engineer, the evidence demonstrates that the position of Quality Support Process Engineer to which Petitioner should have been promoted carried a grade level of 14 and in 1988 a salary range of $35,800.00 to $57,400.00.1 Moreover, what is very clear from the evidence is that even though Mr. Curry had considrably less work experience at Champion, both men received salaries around the mid-range of the grade 14 salary range throughout the years they were grade level 14 employees. As senior and junior employees the difference between their salaries varied but fell around $2300.00. Therefore, in 1988 Petioner was entitled to receive compensation approximately $2300.00 less than the compensation received by Mr. Bradford. Petitoner’s increase in salary should have been to an hourly rate based on an annual salary of $43,200.00 for a 40 hour work week and 52 weeks in a year, i.e. an hourly rate of $20.77. In the years following 1988, Petitioner should have received increases in his salary based on a mid-range performance rating of 3, utilizing the upper percentage increase for that performance rating. Generally, both Mr.Curry and Mr. Findley received slightly more than the highest percentage rate for their performance rating. The current equivalent positions to the Quality Support Process Engineer are spread over a grade 10 Assistant Engineer, grade 11 Associate Engineer, grade 12 Engineer, grade 13 Process Engineer and grade 14 Senior Process Engineer. The evidence demonstrated that both Findley and Curry were brought into the new job classifications at level 14 around 1995. Given the fact that David Curry’s career tract is simmilar to what Petitioner’s would have experienced if he had received the promotion he was entitled to, he would have in 1995 received a similar position to grade 14 Senior Process Engineer and is entitled to receive a salary within that range for 1995. However, by 1995, Findley and Curry both had the opportunity to increase their skills and maintain their salary grade level under the 1995 engineer grade positions. Had Petitioner been promoted in 1988, he to would have had the requisite experience and skills to qualify for a grade level 14 as defined in 1995. For that reason Petitioner is entitled to receive an equivalent level of pay. The issue is different as to what level of position would be substantially equivalent to what he should have received in 1988. The best evidence, reflects that such a position would fall into the Grade 12 Engineer category. The evidence did not show that such a position with the Grade 14 level of salary was offered to Petitioner, but were only discussed. Petitioner, therefore, remains entitled to the first available Engineer position or its substantial equivalent, but at the salary he should have received if he had been able to pursue a normal course of employment. Finally, Petitioner has had to pay attorney fees and costs for the original 1990 proceeding and this motion proceeding in the amount of $4,482.30 for attorney fees and $1,023.73 in costs. The costs for mail fees and car rental have been disallowed. These fees and costs are reasonable and Petitioner is entitled to receive them from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue The issue in this case is whether Respondent had a sufficient amount of workers’ compensation coverage during the time period in question; and, if not, what penalty should be imposed.
Findings Of Fact The Division is the state agency responsible for enforcing the requirement in chapter 440, Florida Statutes (2015),1/ that employers in Florida secure workers’ compensation coverage for their employees. While an exemption can be obtained for up to three corporate officers, any employer in the construction industry with at least one employee must have workers’ compensation coverage. § 440.02(15), Fla. Stat. Kent Howe works for the Division as a compliance investigator based in Orlando, Florida. As part of his job responsibilities, Mr. Howe visits construction sites in order to verify that employers in the construction industry have obtained workers’ compensation coverage for their employees. Mr. Kehr was the owner and sole corporate officer of JNK. Mr. Howe visited a construction site in Port Orange, Florida, on the morning of December 10, 2015, and saw Mr. Kehr and two other men building the interior walls/frames of a house. Mr. Howe talked to the two men (James Hicks and James Garthwait) working with Mr. Kehr, and they reported that Mr. Kehr was paying them approximately $8.00 an hour. Mr. Kehr told Mr. Howe that Messrs. Hicks and Garthwait had been working for him for approximately two hours that morning. Mr. Kehr also stated that he had not obtained workers’ compensation coverage for Messrs. Hicks and Garthwait. Following those conversations, Mr. Howe returned to his car and accessed the Division’s Coverage and Compliance Automated System (“CCAS”) and learned that JNK had no workers’ compensation coverage. Mr. Howe also determined from CCAS that Mr. Kehr had obtained an exemption from workers’ compensation coverage that had been in effect from November 18, 2014, through November of 2016.2/ After relaying that information to his supervisor, Mr. Howe received authorization to serve Mr. Kehr with a Stop- Work Order, and he did so on December 10, 2015. That Stop-Work Order required JNK to “cease all business operations for all worksites in the State” based on the Division’s determination that JNK had failed to obtain workers’ compensation coverage. In addition, the Stop-Work Order stated that JNK would be penalized an amount “[e]qual to 2 times the amount [JNK] would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it [had] failed to secure the payment of compensation within the preceding 2-year period.” Along with the Stop-Work Order, Mr. Howe also served a “Request for Production of Business Records for Penalty Assessment Calculation” (“the BRR”) on Mr. Kehr. In order to ascertain JNK’s payroll disbursements during the relevant time period and the resulting penalty for JNK’s failure to obtain workers’ compensation coverage, the BRR requested that JNK remit several different types of business records covering the period from November 10, 2014, through December 10, 2015. Mr. Howe explained during the final hearing that the Division usually reviews business records pertaining to the two years preceding the Stop Work Order.3/ Because JNK came into existence on November 10, 2014, the Division’s review was limited to examining the period between November 10, 2014, and December 10, 2015. The business records sought by the Division included items such as time sheets, payroll summaries, check journals, certificates of exemption, and evidence that any JNK subcontractors had obtained workers’ compensation coverage. Section 440.107(7)(e) provides that if an employer fails to provide business records sufficient to enable the Department to ascertain the employer’s actual payroll for the time period in question, then the Division will estimate the employer’s actual payroll for that time period by imputing the employer’s payroll based on the statewide average weekly wage. The Division then multiplies that amount by two. JNK did not provide business records typically sought by the Division. Instead, JNK responded to the BRR by producing a written statement from Mr. Kehr indicating that he founded JNK in November of 2014, but did no work until July of 2015. That initial job involved fixing a set of stairs for $200. Afterwards, Mr. Kehr performed three separate small jobs between July and November of 2015, earning approximately $550. Because the Division could not ascertain JNK’s actual payroll from the documentation provided by JNK, the Division imputed JNK’s payroll for the time period in question and issued an Amended Order of Penalty Assessment on January 19, 2016, seeking to impose a penalty of $61,424.04. Phillip Sley calculated the aforementioned penalty amount by filling out a worksheet that has been adopted by the Division through Florida Administrative Code Rule 69L-6.027. The first step in completing the worksheet required Mr. Sley to assign a classification code to the type of work that Mr. Howe witnessed Messrs. Kehr, Hicks and Garthwait performing at the Port Orange worksite on December 10, 2015. Classification codes come from the Scopes® Manual, which has been adopted by the Department through rule 69L-6.021. Each code within the Scopes® Manual pertains to an occupation or type of work, and each code has an approved manual rate used by insurance companies to assist in the calculation of workers’ compensation insurance premiums. The imputed weekly payroll for each employee and corporate officer “shall be assigned to the highest rated workers’ compensation classification code for an employee based upon records or the investigator’s physical observation of that employee’s activities.” See Fla. Admin. Code. R. 69L-6.028(3)(d). In the instant case, Mr. Sley determined “5645” was the appropriate classification code. According to the Scopes Manual, [w]hen all of the carpentry work in connection with the construction of residential dwellings not exceeding three stories in height is performed by employees of the same carpentry contractor or general contractor responsible for the entire dwelling construction project, the work is assigned to Code 5645. This includes the construction of the sill, rough framework, rough floor, wood or light-gauge steel studs, wood or lighted-gauge steel joists, rafters, roof deck, all types of roofing materials, sidewall sheathing, siding, doors, wallboard installation, lathing, windows, stairs, finished flooring, cabinet installation, fencing, detached structures, and all interior wood trim. Mr. Sley’s next step in calculating the penalty amount was to determine the period of non-compliance. With regard to Mr. Kehr, the Department asserted that JNK failed to have workers’ compensation coverage between the date of JNK’s inception (November 10, 2014) and the date that Mr. Kehr received an exemption from the workers’ compensation coverage requirement (November 18, 2014). Despite having no evidence that Messrs. Hicks and Garthwait worked for JNK on any day other than December 10, 2015, the Division’s penalty calculation was based on an assumption that Messrs. Hicks and Garthwait worked for JNK from November 10, 2014, through December 10, 2015. Mr. Sley’s next step was to calculate JNK’s gross payroll for the time period in question. Because JNK did not provide the Division with business records that would have enabled the Division to calculate JNK’s actual payroll, Mr. Sley based JNK’s payroll on the statewide average weekly wage determined by the Department of Economic Opportunity for the time period in question.4/ Mr. Sley then multiplied that amount by two.5/ After converting the payroll numbers into a percentage, Mr. Sley multiplied the payroll amounts by the approved manual rate. As noted above, every classification code is associated with a particular manual rate determined by the Office of Insurance Regulation, and a manual rate corresponds to the risk associated with a particular occupation or type of work. Manual rates associated with potentially dangerous activities will have higher manual rates than activities with little or no potential danger. Mr. Sley’s next step was to calculate a premium for obtaining workers compensation coverage for Messrs. Kehr, Hicks, and Garthwait. Mr. Sley then multiplied that premium by two in order to calculate the individual penalties resulting from JNK not having workers’ compensation coverage for Messrs. Kehr, Hicks, and Garthwait. The sum of those amounts was $61,424.04. The evidence produced at the final hearing established that Mr. Sley utilized the correct class code, average weekly wage, and manual rates in his calculation of the penalty set forth in the Amended Order of Penalty Assessment. The Division has demonstrated by clear and convincing evidence that JNK was in violation of the workers’ compensation coverage requirements of chapter 440. In particular, the Division proved by clear and convincing evidence that Mr. Kehr had no workers’ compensation coverage for himself and no exemption from November 10, 2014, through November 17, 2014. However, the Division did not demonstrate by clear and convincing evidence that Messrs. Hicks and Garthwait were employees of JNK on any day other than December 10, 2015. Mr. Kehr testified during the final hearing that Messrs. Hicks and Garthwait were working for him on December 10, 2015. He also testified that he was paying them at a rate of $8.00 an hour. However, Mr. Kehr persuasively testified that Messrs. Hicks and Garthwait had not worked for him at any other time between November 10, 2014, and December 10, 2015. The undersigned finds Mr. Kehr’s testimony on this point to be credible. Messrs. Hicks and Garthwait did not testify during the final hearing in this matter. There is no evidence that Messrs. Hicks and Garthwait worked for JNK at any time other than December 10, 2015. Because there is no evidence indicating that Messrs. Hicks and Garthwait were employees of JNK at any time other than December 10, 2015, during the time period in question, the undersigned finds that the Department failed to carry its burden of proving that $61,424.04 is the appropriate penalty. Based on the above findings, the undersigned finds that the correct penalty resulting from Mr. Kehr’s lack of coverage is $627.48. The worksheet completed by Mr. Sley indicates that is the amount of the $61,424.04 penalty associated with Mr. Kehr’s lack of coverage. As for the penalties associated with the lack of coverage for Messrs. Hicks and Garthwait on December 10, 2015, the undersigned multiplied the average weekly wage utilized by the Division ($841.57) by two. That results in a weekly gross payroll amount of $1,683.14. Dividing $1,683.14 by five results in a daily gross payroll amount of $336.63. Dividing $336.63 by 100 and then multiplying the result by 15.91 (the approved manual rate utilized by the Division for the period from January 1, 2015, through December 10, 2015) yields a daily premium of $53.62. Multiplying $53.62 by two results in a penalty of $107.23. Multiplying $107.23 by two yields $214.46, JNK’s penalty for not having workers’ compensation coverage for Messrs. Hicks and Garthwait on December 10, 2015. JNK’s total penalty is $841.94. Because section 440.107(7)(d)1. mandates a minimum penalty of $1,000, the undersigned finds that $1,000 is the correct penalty for the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation enter a final order imposing impose a $1,000 penalty on Donald Kehr, d/b/a JNK Framing Inc., a Dissolved Florida Corporation. DONE AND ENTERED this 10th day of August, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 10th day of August, 2016.
Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. Contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco Mechanical Contractors, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour for regular time and $10.50 per hour for overtime. From January 1, 1978 until April 30, 1978, John W. Culp was employed as a plumber at the rate of $7.50 per hour for regular time and $11.25 per hour for overtime. While making $7.00 per hour, Culp was paid $3.07 per hour less than the prevailing wage for regular time hours worked and $4.60 less than the prevailing wage for overtime hours worked. During the period January 1, 1978 until April 30, 1978, Culp received $2.57 less than the prevailing wage for regular time hours worked and $3.95 less than the prevailing wage for overtime hours worked. The figures presented by the Respondent and those of the Petitioner do not agree concerning the number of hours worked. Exhibit 7 reflects that Culp worked a total of 856 hours at $7.00 per hour and 8 hours of overtime at $10.50 per hour. Exhibit 7 further reflects the Culp worked 683 hours at $7.50 per hour and 47.5 hours at $11.25 per hour. The amount Culp was underpaid prior to January 1 is equal to the sum of the regular hours worked times $3.07 and the overtime hours worked times $4.60 per hour. The amount Culp was underpaid subsequent to January 1, 1978, is equal to the sum of the number of regular hours worked times $2.57 and the number of overtime hours worked times $3.95. The amount that Culp was underpaid prior to January 1 is $2,664.72 and subsequent to January 1, $1,942.94 for a total of $4,607.66. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was filed within the time prescribed by statute. Pursuant to the provisions of Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is currently withholding $4,779.74 from Acco Mechanical Contractors, Inc. while awaiting the decision of this administrative hearing.
Conclusions Petitioner has established that he was hired by and worked for Acco, Inc. as a plumber and that he was paid $7.00 per hour from July 17, 1977 until January 1, 1978 and that he was paid $7.50 per hour from January 1, 1978 until April 30, 1978. The prevailing wage for plumbers on the Juvenile Detention Center project was $10.07 per hour. Petitioner John W. Culp is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the, prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employer be paid "not less than the prevailing wage". Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage rate for the total number of hours worked at a rate less than the prevailing wage. Therefore, the Petitioner is entitled to $4,383.23. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff, et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rate, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay to the Petitioner, from the amount it is withholding in this claim, the amount of $4,383.23 and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32301 Telephone No.: (904) 488-7396 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr., Esquire Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Luther J. Moore, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 Thomas A. Koval, Esquire Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 Stephen F. Dean, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter is order directing the contracting authority to pay the employee the sum of $4,607.66 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr. Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR JOHN W. CULP, Petitioner, vs. CASE NO. 78-1281 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978, in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: This cause was presented on a claim filed by John W. Culp against Acco, Inc. alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, John Culp, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour. From January 1, 1978 until April 30, 1978, Petitioner was employed as a plumber at the rate of $7.50 per hour. Exhibit No. 7, the Weekly Time Reports of John W. Culp, establish that Culp worked a total of 856 hours at the rate of $7.00 per hour and 8 hours at $10.50 per hour. Furthermore, the Reports establish that Culp worked 683 hours at the rate of $7.50 per hour and 47.5 hours at $11.25 per hour. Prior to January 1, 1978, the difference between what Petitioner was paid end the prevailing wage was $3.07. After January 1, 1978, the difference was $2.57. The total difference between what Petitioner was paid and the prevailing wage for the time Culp was employed by Acco, Inc. is equal to 856 hours multiplied by $3.07, plus 683 hours multiplied by $2.57. The total difference is $4,383.23. Petitioner has complied with the provision of Section 215.19(3)(a) 1 and 2, Florida Statutes, by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid. This affidavit was timely filed. Pursuant to Section 215.19, Florida Statutes, the Department of Health and Rehabilitative Services is withholding $4,779.74 from Acco, Inc. pending the outcome of this claim.
The Issue The issue is whether Petitioner is entitled to reemployment services from Respondent.
Findings Of Fact Petitioner was born on March 2, 1953. After graduating from high school, he served four years in the United States Air Force as a munitions maintenance specialist. He served in Vietnam. After completing his military service, Petitioner began woodworking, mostly remodeling and home construction. For the past 15 years, his woodworking has involved higher-end work, in which the materials and labor are more expensive. During this time, Petitioner has worked on staircases, yachts, elevator interiors, and more specialized millwork. As contrasted from general carpentry, Petitioner’s woodworking requires more tools and greater manual dexterity to shape the wood, which is characterized by numerous intricate curved cuts. Petitioner’s woodworking requires lots of templates, routing, and changing cutters. This higher-end woodworking requires heavy reliance on power tools, whose cutting edges may turn at 25,000 revolutions per minute. On August 23, 1999, Petitioner was employed as a high- end woodworker at Exodus Fine Wood Products, which made yacht interiors. During the preceding 20 months, Petitioner had worked on elevator interiors, and, before that, he had worked on yacht interiors. Petitioner had been employed at Exodus for only ten weeks when, while using an inverted router without a guard, his right thumb was pulled into the blade. The blade nearly severed the top joint of the right thumb at the distal joint. A physician at the hospital was unable to save the joint, so he completed the amputation. After missing two or three weeks of work, Petitioner had to return to work to earn a living. When he returned to work, his right thumb was still bandaged, and Petitioner tried to work slowly and carefully. Although his employer had changed the procedure that Petitioner had been performing when he had been injured, Petitioner found the new way still unsafe, especially due to the loss of the end of his right thumb, so Petitioner did the procedure differently--and three times more slowly. For sometime, Petitioner tried to work at Exodus, but he found that he could not adequately hold the wood to make the necessary cuts, as, among other things, his right-hand grip was weaker than it had been before the injury and he had lost his previous dexterity. He repeatedly came close to reinjuring himself on a daily basis. Wood sometimes flew from the machine he was using. Although he maintained adequate work quality, the work rate after the injury had slowed considerably. However, Petitioner refused to work on extremely small pieces requiring the use of a router without a guard; he thus did not work on 20 percent of the work that Exodus did. An occupational therapist completed a report on Petitioner on October 28, 1999. Assessing the relative strength of the right hand, as compared to the uninjured left hand, the occupational therapist noted that Petitioner had lost from 31 to 86 percent of his strength, depending on the specific task. Noting that Petitioner felt that his right hand had returned 75 percent back to normal, the therapist mentioned that Petitioner felt that, functionally, his right hand was only 40 to 50 percent back to normal. In particular, Petitioner complained of his inability to hold things because he had lost his leverage. On November 2, 1999, a rehabilitation therapist evaluated Petitioner to assess his physical and functional capabilities. The summary of results notes “significant wrist, elbow, and shoulder compensations . . . during manual dexterity testing.” This testing confirmed “significantly decreased coordination, strength, and some sensory deprivation in the right thumb.” The evaluation states: While [Petitioner] was able to perform the tasks on an occasional basis, his performance during the evaluation demonstrates a significant safety risk when using heavy machinery and power tools as he does in his occupation. . . . The possibility of vocational counseling may also be considered to determine other gainful employment [Petitioner] may be suitable for. Petitioner attempted to obtain the consent of his employer to workplace changes that would have made the work safer, such as by requiring the use of a router guard at all times. Failing at obtaining such changes, Petitioner finally resigned, on November 19, 1999, motivated by the fear that he could no longer do the job safely. By Notice of Employee Separation dated November 19, 1999, Petitioner stated that he was resigning due to the advice of his doctor that “risk is greater for reinjury[--]should be retrained.” For rehire status, the form states that Petitioner is “subject to rehire with reservation.” At the bottom of the Notice of Employee Separation, just above the employer’s signature, is the statement, evidently written by the employer: “Employer agrees with . . . doctor’s recommendation as well.” Elaborating, the employer wrote on a separate page: Mr. Gresko’s employment at Exodus is a more dangerous undertaking than if he had not had his accident. [Psychologically] + physically to some extent he is a [sic] greater risk of re-injuring himself. We would re-hire or continue his employment from this point, but if re-training is available we think Mr. Gresko should take advantage of it. On November 15, 1999, a hand surgeon reported that testing of manual dexterity revealed that Petitioner “has significantly decreased coordination, strength, and some sensory deprivation of the right thumb.” Concerned that a valid psychological component could interfere with Petitioner’s return to his present duties, the surgeon opined that Petitioner still has a functional capacity, but “not in this specific line of work.” The surgeon concluded that Petitioner should receive some rehabilitation training. On November 29, 1999, a case manager of a managed care provider determined that, on November 9, Petitioner had reached maximum medical improvement and could return to gainful employment with no “permanent physical restrictions,” although he was 11 percent permanently physically restricted. At this time, Petitioner requested retraining services from Respondent. By letter dated December 23, 1999, Respondent determined that Petitioner was ineligible for services because he had terminated suitable gainful employment. Therefore, Respondent declined to refer Petitioner for a vocational evaluation. When Respondent determined that Petitioner was ineligible for retraining services, Respondent became depressed, did not do anything for one and one-half months, and then obtained his certificate as a correctional officer in June or July 2000. In July 2000, after completing his training, Petitioner began work as a correctional officer at the Jasper Correctional Institute. However, during training, he had torn his rotator cuff while bench-pressing weights. After ignoring the injury for several months, Petitioner asked a physician to examine his shoulder after he had been on the job a short time. The Department of Corrections then placed Petitioner on medical leave. High-end woodworking, of the kind that Petitioner was performing at the time of the injury, is not suitable gainful employment for him due to the physical limitations arising from the loss of the distal joint of Petitioner’s right thumb. Petitioner tried to return to his former work, but could not do the work safely and efficiently. There is no credible evidence to suggest that Petitioner voluntarily terminated this employment. To the contrary, all of the credible evidence establishes that Petitioner terminated this employment out of a well-informed, reasonable concern for his ongoing safety and the preservation of his remaining upper extremities.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation, Bureau of Rehabilitation and Medical Services, enter a final order granting Petitioner’s request for reemployment services, commencing with a vocational evaluation. DONE AND ENTERED this 15th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2000. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 John Gresko Post Office Box 278 Live Oak, Florida 32064 Elana J. Jones Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
The Issue Whether Petitioner is entitled to additional reemployment services from the Bureau of Rehabilitation and Medical Services. 1/
Findings Of Fact Petitioner was employed by UPS from July 1987 until her employment was suspended on February 10, 1997, for cause unrelated to the job-related injuries at issue in this proceeding. Following an investigation of the unrelated matter, UPS terminated Petitioner’s employment on February 19, 1997. At the time of her discharge, she was working a 40-hour week, was receiving full benefits, and was being paid at the rate of $19.97 per hour. Petitioner’s duties with UPS required her to drive a truck, load and unload trucks, and deliver packages. On January 13, 1997, Petitioner sustained certain injuries on the job when she fell between a truck and a loading dock. Petitioner received medical treatment for her work-related injuries beginning February 12, 1997. Dr. Bruce M. Berkowitz is an orthopedic specialist who treated Petitioner. On May 19, 1997, Dr. Berkowitz observed that Petitioner had multiple areas of discomfort that did not fit into specific orthopedic problems that he could treat. He discharged Petitioner from orthopedic care with a 3% whole person impairment rating based on painful organic syndrome as outlined by the Florida Impairment Rating Guide. Dr. Berkowitz recommended that Petitioner’s care be continued by a physiatrist (a doctor who specializes in physical medicine or physical therapy). Dr. Berkowitz also recommended that Petitioner not lift, carry, push, or pull objects weighing over 30 pounds, and that she not bend from the waist. Dr. Berkowitz saw Petitioner again on August 1, 1997, but he merely reiterated the findings and recommendations from May 19, 1997. After Dr. Berkowitz discharged her, Petitioner received treatment from Dr. Scott D. Tannenbaum, a physiatrist. At the time of the final hearing, Petitioner continued to experience chronic pain, which she attributed to the injuries she sustained January 13, 1997. At the time of the final hearing, Petitioner’s limitations as described by Dr. Berkowitz in May and August 1997 had not improved. Because of her physical limitations, Petitioner is unable to perform her former duties with UPS. At the time of the final hearing, Petitioner was 47 years old. She has no formal education beyond high school other than a computer-training course. She has no special training and no special marketable skills. Petitioner was unemployed between February 19, 1997, and March 1998. Since March 19, 1998, Petitioner has been employed by the DBPR in an OPS 2/ clerical position that has no fringe benefits. In April 2000, Petitioner was earning $11.09 per hour. At the time of the final hearing, Petitioner was paid at the rate of $11.29 per hour. In the fall of 1999, Petitioner applied to Respondent for reemployment services. The goal of this program is to return eligible injured workers to suitable gainful employment as soon as possible. The reemployment services program is a return-to- work program, not a retraining program. The program is voluntary, and must be initiated by the injured worker or by the worker's compensation carrier. Section 440.491, Florida Statutes, defines suitable gainful employment to be: . . . employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earning at the time of injury. In December 1999, Petitioner attended an orientation program and a training workshop pertaining to employability skills. She completed a formal application for services from Respondent, which included releases for medical and employment history. A rehabilitation nurse reviewed Petitioner’s medical records and determined that Petitioner was able to return to work. Thereafter, Eva-Lyn Facey, a vocational rehabilitation counselor employed by Respondent, was assigned Petitioner’s file to make sure that all needed information was provided. Respondent typically explores three options for injured workers seeking reemployment services in the following descending order of preference. The first, and preferred option, is to place the injured worker with his or her former employer. If that option is not available, the next preferred option is on- the-job training for the injured worker. The last option is for full-time classroom re-training of the worker. The preferred option was not available because Petitioner’s prior employment had been terminated for cause and because Petitioner was no longer physically able to perform her former job. On April 6, 2000, Petitioner met with Ms. Facey. After that meeting, Petitioner’s application was complete and she had provided all information required by Respondent to determine whether option two or option three should be pursued. After the application file was complete, Ms. Facey turned the file over to her supervisor 3/ who reviewed the file with Angel Ivan Miranda, a vocational consultant. The supervisor and Mr. Miranda determined that Petitioner's employment with DBPR constituted "suitable gainful employment" as defined by Section 440.491(1)(g), Florida Statutes. They further determined that Petitioner was not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code, which provides as follows: (5) Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation: * * * (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days. In attempting to comply with the provisions of Section 440.491, Florida Statutes, Respondent attempts to determine what employment is reasonably attainable for the injured worker. Mr. Miranda determined that Petitioner's employment with DBPR constitutes suitable gainful employment despite the considerable disparity between Petitioner's pre- injury average weekly wage and her post-injury average weekly wage because better employment for Petitioner is not reasonably attainable. In making that determination, Mr. Miranda considered Petitioner's age, education, work history, transferable skills, and physical restrictions. It is unlikely that Petitioner will be able to find employment that pays as well as her former employment with UPS. Petitioner wants to be retrained in order to be able to work with computers. Mr. Miranda testified that it was likely that an independent evaluator would find that such retraining to be the most appropriate for Petitioner. Mr. Miranda also determined that after such retraining, Petitioner would likely start employment as a computer technician at a lower hourly rate than she was earning at DBPR. The greater weight of the credible evidence established that Petitioner's employment with DBPR constitutes suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner further reemployment services. DONE AND ENTERED this 19th day of March, 2001, in Tallahassee, Leon County, Florida. ___ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2001.
The Issue This matter arose when the claimant applied for in line of duty disability retirement and was advised of the denial of his application of in line of duty disability benefits. The claimant was advised of his right to a hearing pursuant to Chapter 120, Florida Statutes, and filed a Petition for a hearing to determine whether he was entitled to disability in line of duty benefits. The matter was referred to the Division of Administrative Hearings for hearing pursuant to Chapter 120, Florida Statutes.
Findings Of Fact The Petitioner, Pat Q. Trocci, is a 59 year old, white male, whose formal education is limited, and whose primary work experience outside military service in World War II was as a mechanic. The Petitioner was first injured on December 2, 1972, as hereinafter described. Between the date of his injury and 1974 he returned to work several times. During the period May 1973 to June 1974 the Petitioner returned to work on several occasions. The longest period which he worked continuously was six weeks, and during the entire period he worked 100 days. On December 2, 1972, Petitioner, Pat Q. Trocci, was installing a large hydraulic cylinder weighing approximately seven hundred (700) pounds in the back of a garbage truck. Trocci was attempting to push the cylinder into place when it shifted on the chain holding it, sheared the retaining bolt and struck Trocci in turn knocking him into other solid structures in the truck. Trocci, in fear, leaped from the truck and fell again striking himself on objects in the garage. Trocci continued to work, but later that evening began to experience pain. Trocci did not report for work for the next two days which were his regular days off. On the third day, he called in sick and went to the doctor. Dr. Talan administered a pain killing injection to Trocci and gave him oral pain killers. Trocci returned to his house, did some light work, such as watering the lawn, but later that evening experienced severe pain. Trocci was admitted to the hospital within several days suffering from back pain. The tentative diagnosis of the injury was a ruptured disc to Trocci's back with nerve root compression. Trocci was treated conservatively and released for bed rest at home. Thereafter, Trocci returned to work after a lengthy recuperation. Trocci was alternately at work and off work for the next year and a half. He would return to work and perform his duties, but eventually reinjure his back. From May 1973 until June 1974 Trocci worked 100 days of which the longest consecutive period on the job was six weeks. During this period, Trocci was in the care of Dr. Talan and thereafter Dr. Drucker. Trocci suffered primarily from his back ailment during that period. Dr. Drucker's deposition was presented in evidence and considered. Dr. Drucker, an orthopedic, had first seen Trocci in 1972 on referral from Dr. Talan. Dr. Drucker diagnosed Trocci's problem as am inflammation of the nerve root in the lower back. Dr. Drucker had treated Trocci until May 1974, but had last seem Trocci on February 1975. Trocci's medical history included Trocci's description of the accident. Dr. Drucker felt that the trauma was the result of Trocci's accident. Dr. Drucker stated that Trocci's condition was complicated by degenerative back disease, but that the disease was not the cause of Trocci's problems, but adversely affected his response to treatment and rehabilitation. Dr. Drucker indicated that Trocci's problems could be neurological rather than a nerve compression syndrome although he felt his diagnosis was accurate and the best he could make without the further tests to include a myelogram, which he had recommended but which to his knowledge Trocci had not had. Dr. Drucker stated his diagnosis was based on the fact Trocci had no neurological deficits which seemed to eliminate neurological damage. Dr. Drucker felt that Trocci's urological problems were due to extended bed rest, but that he would defer his opinion to the treating doctors. Dr. Drucker stated that in his opinion Trocci could not perform the duties he had performed prior to his injury because he could do no heavy lifting, could not bend, sit, or stand for long periods. Dr. Drucker did feel that Trocci could physically perform sedentary work, but was not aware of Trocci's educational background. Dr. Steinsnyder's report was introduced into evidence as Exhibit 1 and considered. Dr. Steinsnyder had first seem Trocci in August of 1974. At that time Trocci was hospitalized from August 15, 1974 until August 18, 1974 for back pain and bladder retention. Dr. Steinsnyder had treated Trocci from August 15, 1974 until February 12, 1975. The reports in Exhibit 1 indicate that Trocci had had a history of bladder retention during the period of Steinsnyder's treatment. Dr. Steinsnyder urged Trocci on January 22, 1975 to seek a fellow up on his nerve root compression with an orthopedic surgeon or neurelogic surgeon. Trocci was hospitalized on January 31, 1975 in Osteopathic General Hospital, North Miami Beach under Dr. Steinsnyder. Dr. Gonyaw was called in as a neurological consultant at that time. 10 Dr. Gonyaw had a myelogram performed on Trocci shortly after first seeing Trocci on February 2, 1975. Dr. Gonyaw expressed his opinion that at that date Trocci had reached maximum medical improvement. Based upon the results of the myelogram, Dr. Gonyaw eliminated nerve root compression resulting from a ruptured disc as a cause of Trocci's problems. This meant, in Dr. Gonyaw's opinion, that Trocci's problems were the result of a trauma of the spinal cord which had left Trocci with permanent damage. Dr. Gonyaw explained that such an injury is sometimes followed by a slow deterioration of the spinal cord which causes progressively severe symptoms. Dr. Gonyaw found that Trocci had impaired control of his legs, a continually worsening urological condition, and probably worsening neurological condition. Dr. Gonyaw felt that Trocci's real problem was neurological and not urological, but clearly indicated that in his condition Trocci could not perform any real work beyond some sort of hand piece work at his home. The deposition of Dr. Gilbert was also introduced into evidence and considered. Dr. Gilbert saw Trocci on August 22, 1973, at which time Trocci advised Dr. Gilbert of his earlier treatment by Drs. Drucker, Steinsynder, and Gonyaw. Dr. Gilbert stated that Trocci's symptoms were pains radiating from the lower back and buttocks into the legs and urinary retention and bladder infection. Dr. Gilbert's examination revealed that Trocci's movements were abnormally diminished, he exhibited bilateral sciatic tenderness, but that Trocci had had no sensory loss and his deep tendon reflexes were normal. Dr. Gilbert's medical opinion was that Trocci should not do any heavy lifting, no prolonged standing or sitting and no climbing. Because of his urological problems, Dr. Gilbert felt Trocci's ability to work is even more restricted. Dr. Gilbert's prognosis was one of continuing worsening of Trocci's condition, with the spread of infection eventually to his kidneys. The doctors involved have indicated in the fashion used in Workman's Compensation cases that the Petitioner is between 60 percent and 80 percent permanently partially disabled. They have all indicated that Trocci is not totally immobile and could do some light work with his hands. A listing of various job descriptions and positions was introduced by the Division as Exhibit 2 together with the affidavit of the head of the State's classification branch. The Hearing Officer finds having reviewed these descriptions and considered the obvious physical requirements of the various positions that the Petitioner could not perform any of these duties on a day in and day out basis based on the doctors' evaluations of his limitations.
Recommendation Based upon the preceding findings of fact and conclusions of law, it is recommended that the Petitioner receive disability in line of duty retirement benefits. DONE and ORDERED this 16th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Keith Pafford, Esquire Counsel for Respondent Albert E. Harum, Jr., Esquire Counsel for Petitioner
