11-001529 Irene Leonard vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, September 8, 2011.

Summary: Petitioner proved that she was actively employed for at least one calendar month following extended absence due to work injury and is, therefore, eligible to receive full retirement credit for workers' compensation payment periods.

Case No. 11-1529

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRENE LEONARD, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

)

Pursuant to notice, on August 16, 2011, a formal hearing in

this cause was held by video teleconference in Lakeland and

Tallahassee, Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge Linzie F.

Bogan.

APPEARANCES

For Petitioner: Irene Leonard, pro se

127 Paul Revere Road

Bartow, Florida 33830

For Respondent: Thomas E. Wright, Esquire

Division of Retirement

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner's request for retirement credit should

be approved.

PRELIMINARY STATEMENT

In October 2006, Petitioner, Irene Leonard, injured her

back while working for the DeSoto County Sheriff's Office

(Sheriff's Office). From October 2006 through September 2007,

Petitioner received temporary total workers' compensation

disability benefits as a result of her injuries. The exact

dates during this period when she received temporary total

disability benefits are not at issue in the present case.

Petitioner returned to work for the DeSoto County Sheriff's

Office in September 2007 and, subsequently, sought retirement

credit from Respondent, Department of Management Services,

Division of Retirement (Division), for the period that she

received temporary total disability benefits. By letter dated

January 7, 2011, the Division informed Petitioner that pursuant

to section 121.125, Florida Statutes (2007), 1/ she would not be

granted retirement credit for the period in question, because

following her return to work in September 2007, she worked

intermittently and did not have a full month of active

employment before being terminated by her employer. Petitioner,

thereafter, submitted to the Division a Petition for

Administrative Hearing. On March 16, 2011, the Division

referred the matter to the Division of Administrative Hearings

for a disputed fact hearing.

A Notice of Hearing by Video Teleconference was issued

setting the case for formal hearing on June 24, 2011. At

Petitioner's request, the case was continued and reset for

hearing on August 16, 2011.

At the hearing held on August 16, 2011, two witnesses

testified: Petitioner; and Andy Snuggs, who works as a benefits

administrator with the Division. Additionally, five exhibits

(Respondent's 1 through 4 and 6) were offered and received into

evidence without objection. Petitioner did not offer any

documents into evidence.

Neither party elected to order the transcript of the

proceeding. On August 26, 2011, Petitioner submitted a Proposed

Recommended Order. In reviewing Petitioner's Proposed

Recommended Order, there was no indication that a copy of the

same was provided to counsel for Respondent. By way of Notice

of Ex-Parte Communication, the undersigned, on August 26, 2011,

forwarded a copy of Petitioner's Proposed Recommended Order to

counsel for Respondent. On August 29, 2011, Respondent

submitted a Proposed Recommended Order. The Proposed

Recommended Orders submitted by the parties have been considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner previously worked for the Sheriff's Office

for DeSoto County, Florida. It is undisputed that the Sheriff's

Office is a qualified Florida Retirement System ("FRS") employer

and that Petitioner was, during all times relevant hereto, an

FRS eligible employee.

2. In the instant case, it is undisputed that in

October 2006, Petitioner sustained a work-related injury while

in the course and scope of her employment with the Sheriff's

Office. Petitioner, from the time of her injury through

approximately September 11, 2007, received temporary total

disability workers' compensation benefits for her employment-

related injuries. The precise dates when these benefits were

received by Petitioner are not at issue in the instant dispute.

3. On September 12, 2007, Petitioner returned to work at

the Sheriff's Office with light-duty work limitations. Also on

this date, Petitioner resumed receiving payroll wages from the

Sheriff's Office. Petitioner continued to receive temporary

partial disability wage payments through December 2008 and

received workers' compensation medical benefits through October

2010.

4. When Petitioner returned to work on September 12, 2007,

she was still receiving medical treatment from the workers'

compensation physician and attended regular sessions with the

physician throughout the duration of her employment with the

Sheriff's Office. The visits to the workers' compensation

physician often occurred during times when the Sheriff's Office

scheduled Petitioner to work, thus, resulting in her absence

from work on these days.

5. The Sheriff's Office terminated Petitioner's employment

on December 12, 2007. Between the dates of September 12, 2007,

and December 12, 2007, Petitioner was on the Sheriff's Office

payroll and received wages as follows:

a) For the period September 23, 2007, through

October 6, 2007, she received payroll wages for 14

days;

b) For the period October 7, 2007, through

October 20, 2007, she received payroll wages for five

days; and

c) For the period October 21, 2007, through

December 12, 2007, she received payroll wages for

14 days.

6. No evidence was presented at the hearing explaining

Petitioner's work schedule for the period September 13, 2007,

through October 5, 2007. Between the dates of September 12,

2007, and December 12, 2007, Petitioner worked and received

payroll wages from the Sheriff's Office for a total of 34 days.

7. Although the 34 days that Petitioner worked were

dispersed throughout the months of September, October, November,

and December, Petitioner, nevertheless, received a paycheck from

the Sheriff's Office for wages for each pay period following her

return to work.

8. There was no testimony offered at the hearing as to the

total number of days that Petitioner was scheduled to work

between September 12, 2007, and December 12, 2007. However,

Petitioner testified that any scheduled work days that she

missed during this period occurred as a result of her having to

attend medical appointments with the workers' compensation

physician. Respondent offered no evidence to the contrary as to

this point.

9. Given the severity of Petitioner's work-related injury,

which apparently resulted in her being away from work for nearly

a year, coupled with the fact that she continued to receive

workers' compensation medical benefits through October 2010

(some four years after the date of her injury), the undersigned

accepts as credible Petitioner's testimony that any scheduled

work days that she missed between September 12, 2007, and

December 12, 2007, resulted from her having to attend medical

appointments with the workers' compensation physician.

10. On April 4, 2008, Petitioner submitted correspondence

to the Division and stated therein the following:

Sir,

I am writing this email in regards to my

retirement. Under the florida [sic]

retirement system, a member is entitled to

retirement credit for periods of eligible

workman [sic] comp[ensation]. The member

must return to FRS covered employment for

one month. Creditable workman [sic]

comp[ensation] includes all periods that

workman [sic] comp[ensation] are made. FRS

employers are required by Section 121.125,

Florida Statutes, and Section 60S-2012,

Florida Administrative Code, to report the

period covered by workman [sic]

comp[ensation] on the monthly retirement

report. D.C.S.O. stated I worked

intermittently but where is it written in

the Florida State Statutes or Administrative

Code, how many days during the month you are

allowed to miss and it would not be credible

service or considered a break in service.

[sic] Sir, I was still active [sic]

employed with D.C.S.O. upon returning to

work on Sept[ember] 12, 2007. The days I

missed was [sic] due to medical

appointmentts [sic] for my workman's [sic]

comp[ensation] injury I sustained at

D.C.S.O. I always provided documentation

from the physician. I was not terminated

until December 13, 2007 when Capt. McClure

of D.C.S.O. called me at 8:21 A.M. [sic] on

my scheduled day off. The three months I

was allowed to work and the period on

workman [sic] comp[ensation] should be

credible service towards retirement. Sir,

my question is when the other employees at

D.C.S.O. take off more than a couple of

days, during the month, for various reasons,

without medical documentation[,] do[es] it

count for credible service towards

retirement or is it a break in service.

[sic]

11. On April 7, 2008, Doug Cherry, on behalf of the

Division, responded to Petitioner's inquiry of April 4, 2008,

and stated the following:

Ms. Leonard, as I explained in our phone

conversation, for periods of workers'

compensation (temporary partial or temporary

total) to be eligible for retirement credit

there must be a return to active employment

for one complete calendar month. The

attached letter from the Sheriff of DeSoto

County shows that from your scheduled date

of return in September 2007, your employment

was not active for the required month.

This letter states you worked intermittently

until your termination of employment in

December 2007. To satisfy the one calendar

month of active work, you needed to be

consistently working through October 31,

2007.

You indicated in our conversation that the

information from the Sheriff was incorrect.

If so, you would need to contact that office

to resolve any discrepancy.

I [have] also attached the appropriate

Florida Statute (121.125) and the Florida

Administrative Code (60S-2.012) which states

[sic] this requirement. The law does not

provide for exceptions or a combination of

active and non-active employment during the

one calendar month.

Regarding your question about active members

taking off days during the month, the

requirements for earning service credit are

different than the eligibility requirement

for periods of workers' [sic] compensation.

In your own account, you did earn credit for

the months of September, October, November

and December 2007 for the time you did work

and earn salary.

However, as stated above, for the period of

workers' compensation to be creditable for

retirement, the requirement is active

employment for the full calendar month, not

to earn service credit after such period.

You also indicated that you were going to

provide your attorney with this information.

If your attorney would like to give me a

call (850-488-9623), I will be glad to

discuss this issue with him or her.

I hope this information will help clarify

this issue for you.

12. On January 7, 2011, Respondent wrote Petitioner and

informed her of the following:

Dear Ms. Leonard:

This will respond to your request for

retirement credit for the period of time you

received Workers' Compensation (WC), that

was submitted to the State Board of

Administration (SBA). Because this is an

issue of creditable service, the SBA

forwarded the request to the Division of

Retirement since the Division is the proper

agency to address such an issue.

Information you and your agency provided

indicates that you were out on WC October

2006 through September 2007 at which time

your employer, the DeSoto County Sheriff's

Office, sent you a letter dated September 6,

2007 requiring you to return to work within

two weeks or be terminated from employment.

The Division has not received any

documentation from the Workers' Compensation

carrier to substantiate the actual periods

of WC or the date maximum medical

improvement was reached. Therefore, this

letter cannot address periods of possible

eligibility for retirement credit but will

address whether your employment from

September 2007 met the return to work

requirement for such eligibility.

The Sherriff's [sic] office provided us with

documentation of your time worked in

September, October, November, and December

2007. During these months, you worked

intermittently and did not have a full

calendar month of active employment before

your employment was terminated by your

employer on December 12, 2007.

* * *

You did not consistently work during any of

those calendar months until your employment

was terminated by your employer on

December 12, 2007. Therefore, starting in

September 2007, you did not meet the return

to actively performing service requirement

of the above provision to establish

eligibility for possible retirement credit.

13. Petitioner's failure to return to active employment

status was the only reason given by the agency when denying

Petitioner's claim.

14. Andy Snuggs has worked as a benefits administrator for

the Division for approximately the last 20 years. The Division

offered, and the undersigned accepted, Mr. Snuggs as an expert

in matters related to the Act.

15. Mr. Snuggs testified that in the exercise of the

agency's discretion, the agency defines the phrase "active

employment," as it relates to section 121.125, to mean that an

employee must work each scheduled work day in a regularly

established position for at least one calendar month following

the employee's return to work and that no allowances are made

for any absences, excused or otherwise. Mr. Snuggs did not

offer any testimony explaining why the Division selected the

particular definition that it did for the term "active."

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011).

17. Petitioner bears the burden of establishing by a

preponderance of the evidence her entitlement to retirement

benefits. See Dep't of Banking & Fin., Div. of Sec. & Investor

Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996);

Espinoza v. Dep't of Bus. & Prof'l Reg. , 739 So. 2d 1250, 1250

(Fla. 3d DCA 1999); Fla. Dep't of Transp. v. J.W.C. Co. , 396 So.

shall be based upon a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute. . . .").

18. "A 'preponderance' of the evidence is defined as 'the

greater weight of the evidence,' or evidence that 'more likely

than not' tends to prove a certain proposition." Gross v.

Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000). 19. Chapter 121, Florida Statutes, contains the "Florida

Retirement System Act (Act)." § 121.011(1).

20. Section 121.1905 "create[s] the Division of Retirement

within the Department of Management Services," and it further

provides that "the mission of the Division of Retirement is to

provide quality and cost-effective retirement services as

measured by member satisfaction and by comparison with

administrative costs of comparable retirement systems."

21. The issue that the Division must resolve in the

instant case is whether under section 121.125, Petitioner was

actively employed with the Sheriff's Office for at least one

calendar month between September 12, 2007, and December 12,

2007.

22. The Division argues that because Petitioner did not

attain perfect attendance during either of the months following

her return to employment on September 12, 2007, she failed to

return to active employment status for the requisite one

calendar month as required by section 121.125. 2/

23. Section 121.125 provides, in part, as follows:

A member of the retirement system created by

this chapter who has been eligible or

becomes eligible to receive workers'

compensation payments for an injury or

illness occurring during his or her

employment while a member of any state

retirement system shall, upon return to

active employment with a covered employer

for 1 calendar month . . ., receive full

retirement credit for the period prior to

such return to active employment or

disability retirement for which the workers'

compensation payments were received.

(emphasis added).

24. Florida Administrative Code Rule 60S-2.012 provides as

follows:

A member who has been eligible or becomes

eligible to receive temporary total or

temporary partial Workers' Compensation

payments for an injury or illness occurring

during his employment as a member of any

state-administered retirement system shall

receive retirement credit for such period,

not to extend beyond the earlier of the date

the member reaches maximum medical

improvement as defined in Section 440.02(8),

F.S., or terminates employment as provided

in Rule 60S-6.001, F.A.C., in accordance

with the following provisions:

(1) A member must return to active

employment immediately upon recovery, for at

least one calendar month, performing service

in a regularly established position with any

participating employer, or, effective

July 1, 1990, be approved for disability

retirement as provided in Rule 60S-4.007,

F.A.C. The Division may require evidence of

the member's bona fide return to work and

medical evidence of his ability to return to

work.

* * *

(3) Effective July 1, 1990, a member

shall receive full retirement credit for the

period during which he received Workers'

Compensation payments. (emphasis added).

25. Neither the Act, nor the Division's promulgated rules,

provide a definition of the term "active." Rule 60S-2.012,

which is the Division's interpretation of section 121.125, is

simply a near verbatim recitation of the Legislature's statutory

mandate.

26. It is well established that an agency interpretation

of a statute that places upon the statute an interpretation that

is not readily apparent from its literal reading, or in and of

itself purports to create rights or require compliance or

otherwise has the direct and consistent effect of law, is an

unadopted rule. St. Francis Hospital, Inc. v. Dept. of HRS ,

553 So. 2d 1351, 1354 (Fla. 1st DCA 1989).

27. Mr. Snuggs, the Division's expert, testified that the

Division, with respect to section 121.125, interprets the term

"active" as being synonymous with perfect attendance. This is

an interpretation of the term active that is not readily

apparent from a literal reading of section 121.125.

28. As stated by the First District Court of Appeal,

[w]hen an agency seeks to validate agency

action based upon a policy that is not

recorded in rules or discoverable

precedents, that policy must be established

by expert testimony, documentary opinions,

or other evidence appropriate to the nature

of the issues involved and the agency must

expose and elucidate its reasons for its

discretionary action.

St. Francis Hospital at 1354 (citing E.M. Watkins & Co. v. Bd.

of Regents , 414 So. 2d 583, 588 (Fla. 1st DCA 1982)), (citing

Fla. Cities Water Co. v. Fla. Pub. Serv. Comm'n , 384 So. 2d 1280

(Fla. 1980)); Annheiser-Busch, Inc. v. Dep't of Bus. & Prof'l

Reg. 393 So. 2d 1177 (Fla. 1st DCA 1981); and McDonald v. Dep't

of Banking & Fin. , 346 So. 2d 569 (Fla. 1st DCA 1977). Compare

Meridian, Inc. v. Dep't of HRS , 548 So. 2d 1169 (Fla. 1st DCA

1989)(policy recorded in discoverable precedents).

29. Although Mr. Snuggs testified that the Division

adopted the one-month perfect attendance requirement pursuant to

the exercise of its discretion, he failed to expose and

elucidate any rationale explaining why the Division embraced

this particular definition of the term "active," as it relates

to section 121.125.

30. Section 121.021(38) provides, in relevant part, as

follows:

"Continuous service" means creditable

service as a member, beginning with the

first day of employment with an employer

covered under a state-administered

retirement system consolidated herein and

continuing for as long as the member remains

in an employer-employee relationship with an

employer covered under this chapter. An

absence of 1 calendar month or more from an

employer's payroll shall be considered a

break in continuous service , except for

periods of absence during which an employer-

employee relationship continues to exist and

such period of absence is creditable under

this chapter or under one of the existing

systems consolidated herein. (emphasis

added).

The Act does not define what constitutes a break in continuous

service.

31. Rule 60S-6.001 sets forth the Division's

interpretation of what constitutes a break in service under the

Act. Subsection (11) of the rule provides as follows:

BREAK IN SERVICE-–Means an interruption in

the continuous service of a member where any

of the following occurs:

(a) The member terminates his employment

in a position covered by the Florida

Retirement System or any existing retirement

system and receives a refund of the

accumulated contributions he has made, even

though the member later claims prior service

and repays the refunded contributions.

(b) The member has an absence of one

calendar month or more from an employer's

payroll except for periods of absence where

an employer-employee relationship continues

to exist and such absence is creditable

under the Florida Retirement System or one

of the existing systems. (emphasis added).

32. It is undisputed that Petitioner returned to work for

the Sheriff's Office on September 12, 2007, and received salary

wages, though non-continuously, from that time through

December 12, 2007, the date of her termination. In accordance

with section 121.021(17)(b) and as confirmed by Mr. Cherry in

his correspondence to Petitioner of April 7, 2008, Petitioner

earned retirement credit for the months of September, October,

November, and December 2007, because she was on the Sheriff's

Office payroll for each of these months. Clearly, in order to

have received retirement credit for the months of September,

October, November, and December 2007, Petitioner had to have

been an employee that was in continuous service status. As

such, Petitioner's date of return to continuous service status

coincides with the date that she resumed being an "active"

employee. Accordingly, Petitioner, as contemplated by section

121.125, returned to "active" employment with the Sheriff's

Office on September 12, 2007.

33. Given that Petitioner returned to active employment on

September 12, 2007, the remaining issue is whether Petitioner's

intermittent visits to her authorized workers' compensation

physician, resulting in absences from work, constitute a break

in service.

34. In his correspondence of April 7, 2008, to Petitioner,

Mr. Cherry, as to section 121.125, advised that "[t]he law does

not provide for . . . a combination of active and non-active

employment during the one calendar month." As applied to the

instant case, this statement by Mr. Cherry is correct in theory,

but incorrect in application.

35. Section 121.021(38) and rule 60S-6.001(11), in

relevant part, make it clear that an employee, like Petitioner,

who is on continuous service status, suffers a break in service

if, and only if, the employee either terminates employment or is

absent for one calendar month or more from an employer's

payroll. It is undisputed that Petitioner was not absent from

her employer's payroll during the entirety of any month between

September 12, 2007, and December 12, 2007; and she certainly was

not terminated during this time-frame. Accordingly, Petitioner

did not experience a break in service between September 12,

2007, and December 12, 2007, and, therefore, remained an active

employee until the date of her termination.

36. As applied to the instant case, neither the plain

language of the Act, nor the plain language of rule

60S-6.001(11), can reasonably be interpreted in such a way so as

to expand the definition of "break in service" to include

intermittent absences from work to attend appointments with an

authorized workers' compensation physician.

37. The Division's indirect attempt to expand the

definition of "break in service" to include absences from work

that are shorter in duration than what is set forth in the Act

and in rule 60S-6.001(11), constitutes an unadopted rule.

Section 120.52(20) defines an unadopted rule as "an agency

statement that meets the definition of the term 'rule,' but that

has not been adopted pursuant to the requirements of section

120.54." Statutorily "an administrative law judge may not base

agency action that determines the substantial interests of a

party on an unadopted rule." § 120.57(1)(e).

38. The Division has not demonstrated entitlement to any

of the provisions listed in section 120.57(1)(e) that would

authorize it to rely upon the unadopted rule as a basis for

denying Petitioner's claim.

39. Petitioner has met her burden and has proved that she

was actively employed by the Sheriff's Office for at least one

calendar month following her return to work on September 12,

2007. Therefore, the Division should proceed with securing from

the workers' compensation carrier appropriate documentation to

substantiate Petitioner's absence from work for the period

October 2006 through August 2007.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED that Respondent, Department of Management

Services, Division of Retirement, enter a final order

determining that Petitioner, Irene Leonard, met the

return-to-work requirements necessary to receive retirement

credit for workers' compensation payment periods.

DONE AND ENTERED this 8th day of September, 2011, in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of September, 2011.

ENDNOTES

1/ All future references to Florida Statutes will be to 2007,

unless otherwise indicated.

2/ Mitchell v. Department of Management Services, Division of In

Retirement , Case No. 03-0417 (Fla. DOAH March 31, 2003; Fla. DMS

May 22, 2003), the Division defined "active" employment as

meaning "physically working and earning salary." This

definition differs substantially from the definition offered by

the Division in the instant case.

COPIES FURNISHED :

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315-9000

Jason Dimitris, General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Thomas E. Wright, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Irene Leonard

127 Paul Revere Road

Bartow, Florida 33830

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.