96-001382 Michael J. Digeronimo vs. Department Of Labor And Employment Security, Division Of Workers` Compensation Status: Closed Recommended Order on Friday, July 11, 1997.

Summary: Injured employee who earned post-injury wages equal to pre-injury wages returned to suitable gainful employment without the need for training and education.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. DIGERONIMO, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, DIVISION OF )

WORKERS' COMPENSATION, ) Case No. 96-1382

)

Respondent, )

)

and )

)

HOME DEPOT and GAB ROBINS, )

)

Intervenors. )

)

RECOMMENDED ORDER

An administrative hearing was conduct ed on March 27, 1997,

in St. Petersburg, Florida, by Daniel Manry, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Enrique Escarraz, Esquire

2121 Fifth Avenue North

Post Office Box 847

St. Petersburg, Florida 33731

For Respondent: Michael G. Moore, Esquire

Department of Labor and

Employment Security

Hartman Building, Suite 307

2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

For Intervenors: George A. Helm, III, Esquire

Langston, Hess, Bolton,

Znosko and Helm, P.A.

111 South Maitland Avenue

Maitland, Florida 32751

STATEMENT OF THE ISSUE

The issue in this case is whether the training and education

authorized in Section 440.491, Florida Statutes, 1 is required for

Petitioner to return to suitable gainful employment within the

meaning of Section 440.491(1)(g).

PRELIMINARY STATEMENT

By letter dated December 22, 1995, Respondent denied

Petitioner's request to be evaluated for training and education

on the ground that Petitioner had obtained suitable gainful

employment without training and education. Petitioner timely

requested an administrative hearing. Respondent referred the

matter to the Division of Administrative Hearings to conduct a

hearing, and Petitioner's employer and workers' compensation

servicing agent intervened.

At the hearing, Petitioner testified in his own behalf,

called one witness, and submitted six exhibits for admission in

evidence. Respondent and Intervenors presented the testimony of

four witnesses and submitted 11 exhibits.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the transcript of the hearing

filed on April 14, 1997. Petitioner timely filed his proposed

recommended order ("PRO") on May 27, 1997. Respondent and

Intervenors timely filed their respective PROs on May 23, 1997.

(Home Depot is referred to hereinafter as "Intervenor").

FINDINGS OF FACT

1. Petitioner has been employed by Intervenor as a sales

associate since January, 1993. Petitioner sustained an injury on

March 3, 1993, while working for Intervenor.

2. Petitioner tore the meniscus in his left knee. Dr.

Michael Smith, an orthopedic surgeon, performed a partial medial

meniscectomy. On October 7, 1993, Dr. Smith performed a second

surgery on the same knee.

3. Petitioner returned to light duty work for half-days on

November 15, 1993. He worked half-days until June 30, 1994, when

he began working five to six hours a day. He continues to work

five to six hours a day for Intervenor.

4. Petitioner reached maximum medical improvement on

April 21, 1994. Dr. Smith rated Petitioner's permanent

impairment at six percent.

5. Petitioner can not tolerate lifting more than 20 pounds

occasionally or more than 10 pounds frequently. He can not

tolerate repetitive squatting, stooping, and climbing.

Petitioner can not tolerate standing more than six hours at a

time in consecutive eight-hour days.

6. Petitioner's current sales position requires too much

standing, squatting, stooping, and climbing for Petitioner to

work consecutive eight-hour days. However, Petitioner can work

consecutive eight-hour days in a job that does not exceed the

restrictions Petitioner can tolerate.

7. Petitioner can work consecutive eight-hour days for

Intervenor in a commercial sales position because it requires

less lifting, standing, squatting, stooping, and climbing each

day. However, a commercial sales position is not available.

1. The Pub

8. In July, 1992, Petitioner began working as a bartender

for the Pelican Pub (the "Pub"). He was employed by the Pub on

March 3, 1993, when he was injured working for Intervenor.

9. Before the injury, Petitioner worked approximately 57

hours a week in both jobs. Petitioner worked approximately five

eight-hour or nine-hour shifts for Intervenor. He worked two

eight-hour shifts at the Pub.

10. After the injury, Petitioner returned to work at both

jobs. However, he does not work 40 hours a week for Intervenor.

11. In August, 1996, Intervenor required Petitioner to

elect either full-time status, working 40 hours a week, or part-

time status, working four shifts of five to six hours each.

Petitioner elected part-time status.

12. Since July, 1994, Petitioner has worked approximately

48 hours a week at both jobs. Petitioner works approximately 24

hours a week at each job in four six-hour shifts.

13. Petitioner works no more than eight hours a day each

day except Monday. Monday is a very light day for business at

the Pub. Petitioner has seven hours to rest between his two jobs

each Monday.

14. At the Pub, Petitioner can sit much of the time,

especially in the first three hours of each shift. While working

for Intervenor, Petitioner is on his feet most of the time.

2. Average Weekly Earnings

15. One of the r equirements of "suitable gainful

employment" is that Petitioner's average weekly earnings after

the injury must equal, as nearly as possible, his average weekly

earnings at the time of the accident. The parties stipulated

that average weekly earnings at the time of the accident ("pre-

injury earnings") were approximately $360. The stipulation does

not specify whether it includes earnings from the Pub.

16. Petitioner argues that earnings from the Pub were

excluded from the stipulated amount of pre-injury earnings and

should also be excluded from his post-injury earnings.

Respondent and Intervenor assert that earnings from the Pub

should be included in Petitioner's post-injury earnings,

irrespective of the stipulated amount of pre-injury earnings.

17. Earnings from any job that qualifies as employment is

properly included in post-injury earnings. It is uncontroverted

that Petitioner's job with Intervenor qualifies as employment.

18. Petitioner's employment with the Pub is employment

within the meaning of Section 440.02(15)(a). The Pub is a

private employer that employed four or more employees before and

after the injury. Earnings from Petitioner's employment with the

Pub are properly included in Petitioner's post-injury earnings.

19. Before the injury, Petitioner earned approximately $360

a week from his employment in both jobs. He earned $289 a week

from his employment with Intervenor, working 41 hours a week at

$7 an hour. He earned approximately $71 a week from his

employment with the Pub, including salary and tips.

20. After the injury, Petitioner earns approximately $358

from his employment in both jobs. Petitioner earns $214 from his

employment with Intervenor, working 24 hours a week at $8.90 an

hour. He earns $144 from his employment with the Pub, working 24

hours a week at $6 an hour.

21. The $214 Petitioner now earns from his employment with

Intervenor is less than either the stipulated or actual wages

Petitioner earned from that employment before the injury.

However, the $358 Petitioner now earns from all employment in

both jobs is substantially the same as both the stipulated and

actual wages he earned from the same employment before the

injury. Petitioner's average weekly earnings after the injury,

as nearly as possible, equal his average weekly earnings at the

time of the injury.

3. Underemployment

22. Petitioner is not underemployed within the meaning of

Florida Administrative Code Rule 38F-55.0001(16). 2 Petitioner's

post-injury wages from his employment with Intervenor are less

than 80 percent of his pre-injury wages from the same

employment. 3 However, Petitioner's post-injury wages from all

employment, as nearly as possible, is equal to his pre-injury

wages from the same employment.

aining and education are not required to return

Petitioner to suitable gainful employment solely with Intervenor.

All that is required is job availability.

24. Petitioner can earn average wages equal to his pre-

injury wages by working five eight-hour shifts for Intervenor in

commercial sales when and if such a position becomes available.

Petitioner is not precluded from suitable gainful employment with

Intervenor by age, education, work history, transferable skills,

previous occupation, or injury.

25. A commercial sales position is reasonably attainable in

light of Petitioner's age, education, work history, transferable

skills, previous occupation, and injury. It offers an

opportunity to restore Petitioner as soon as practicable and as

nearly as possible to his pre-injury earnings.

aining And Education Benefits

26. On January 22, 1995, Petitioner applied for training

and education benefits. Respondent conducted a screening and

properly determined that Petitioner should not be referred for

vocational evaluation.

27. The screening conducted by Respondent complied with the

requirements of Section 440.491(6)(a) and Rule 38F-55.009.

Respondent obtained Petitioner's medical file, a history of wages

and earnings from Petitioner's employment with Intervenor and the

Pub, and relevant background information. Respondent then

scheduled an interview with Petitioner.

28. Respondent reviewed the medical file, work history, and

background information. Respondent investigated the information

to determine whether Petitioner had the ability to perform the

duties required by his pre-injury employment with Intervenor and

the Pub.

29. Respondent interviewed Petitioner and representatives

of both employers. Respondent obtained written clarification

from the treating physician regarding Petitioner's ability to

perform his duties in both jobs.

30. Respondent properly determined that Petitioner should

not be referred for vocational evaluation. Petitioner had

returned to suitable gainful employment, maintained such

employment for at least 90 days, and had transferable skills

which allowed him to work in suitable gainful employment within

the meaning of Rules 38F-55.009(5) and (6).

31. As soon as was practicable after the accident,

Petitioner returned to both of the positions he held prior to the

accident. Petitioner has consistently worked approximately 48

hours a week in suitable gainful employment with Intervenor and

the Pub.

32. Petitioner's current employment offers a meaningful

opportunity to restore Petitioner to his average weekly earnings

at the time of the injury. Petitioner's average weekly earnings

before and after the injury, as nearly as possible, are equal.

aining and education are not required for Petitioner

to return to suitable gainful employment. Such employment is

reasonably attainable in light of his age, education, work

history, transferable skills, previous occupation, and injury.

aining And Education Goals

34. Petitioner wishes to return to college in a program

that leads to a bachelor's degree in sociology. Petitioner has

previously earned 84 credit hours from Bucks Community College.

Petitioner needs approximately 30 credit hours to complete the

requirements for a bachelor's degree.

35. The average annual income for entry lev el positions in

sociology is approximately $20,000. Petitioner may be able to

tolerate the duties of a position in sociology more easily than

he tolerates those in his current employment if a future position

in sociology requires less standing, stooping, squatting,

bending, or lifting.

36. A course of study leading to a bachelor's degree is not

an education program within the meaning of Rule 38F-8.021(4).

Approved education programs are limited to those in vocational

and adult education, trade or business schools, and community

colleges offering associate degrees.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter. Section

120.57(1). The parties were duly noticed for the hearing.

38. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of evidence that training and education

are required for Petitioner to return to suitable gainful

employment. Florida Department of Transportation vs. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977).

6. Suitable Gainful Employment

39. At the time of Petitioner's injury, former Section

440.49(1)(a), Florida Statutes (1993), defined "suitable gainful

employment" only for the purposes of former Section 440.49

(entitled "Rehabilitation of injured employees; Special

Disability Trust Fund"). In relevant part, former Section

440.49(1)(a) stated:

(1) REHABILITATION OF INJURED EMPLOYEES. -

* * *

. . . For purposes of this section only,

"suitable gainful employment" means

employment . . . which is reasonably

attainable in light of the individual's age,

education, previous occupation, and injury

and which offers an opportunity to restore

the individual as soon as practicable and

as nearly as possible to his average weekly

earnings at the time of injury.

40. The statutory definition of "suitable gainful

employment" was judicially interpreted to mean employment that

provides an income equal to pre-injury earnings; is appropriate

to the medical restrictions imposed by the injury; and is

consistent with the employee's aptitude, interest, or motivation

to engage in that kind of work. Lowry vs. Bob Evans Farms, Inc. ,

666 So. 2d 977, 978 (Fla. 1st DCA 1996); Viking Sprinkler Co. vs.

Thomas , 413 So. 2d 816, 818 (Fla. 1st DCA 1982).

41. After the injury, former Section 440.49 was renumbered

as Section 440.491. Section 440.491 includes certain changes to

former Section 440.49. Laws of Florida, Chapter 93-415, Section

44. However, Section 440.491 does not change the substance of

the definition of "suitable gainful employment" in former Section

440.49(1). In relevant part, Section 440.491(1)(g) defines

suitable gainful employment as:

. . . 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 opportuni ty to restore the individual as soon

as practicable and as nearly as possible to his 4

average weekly earnings at the time of injury.

42. Petitioner argues that the statutory changes after his

injury were changes to substantive provisions and must be applied

prospectively. Petitioner claims that former Section 440.49(1)

and the related judicial test control the definition of "suitable

gainful employment" in this case.

43. If the substance of the definition of "suitable gainful

employment" had changed after Petitioner's injury, Petitioner

would be correct. The new definition would not be applied

retrospectively.

44. Workers' compensation law generally imposes a

contractual obligation between the parties. The substantive

rights of the parties are fixed at the time of the injury.

Sullivan vs. Mayo , 121 So. 2d 424, 428 (Fla. 1960); Southern

Bakeries vs. Cooper , 659 So. 2d 339, 340 (Fla. 1st DCA 1995).

45. In the absence of clear legislative intent to the

contrary, the law is presumed to operate prospectively. The law

will not be applied retrospectively to affect substantive rights

of the parties. Arrow Air, Inc. vs. Walsh , 645 So. 2d 422, 425

(Fla. 1994); Alamo Rent-A-Car, Inc. vs. Mancusi , 632 So. 2d 1352,

1358 (Fla. 1994); Walker & LaBerge, Inc. vs. Halligan , 344 So.

2d 239, 241 (Fla. 1977); Hansen vs. State Farm Mutual Automobile

Insurance Company , 674 So. 2d 106, 108 (Fla. 1st DCA 1996).

46. Exceptions to the general rule requiring prospective

application of statutory changes include changes that are merely

procedural or remedial. Procedural and remedial statutes may be

applied retrospectively. Alamo , 632 So. 2d at 1358; Halligan ,

344 So. 2d at 243.

47. Certain provisions in former Section 440.49(1) and

Section 440.491 have been held to be procedural. See , e.g. ,

Lockheed Space Operations vs. Langworthy , 686 So. 2d 665, 667

(Fla. 1st DCA 1996); W.R. Grace & Co. vs. Marshall , 405 So. 2d

444 (Fla. 1st DCA 1981)(holding, respectively, that changes to

provisions in Section 440.491(4) and former Section 440.49(1)(c)

concerning the obligation to evaluate an employee's ability to

achieve suitable gainful employment were procedural). Other

provisions in the statute have been held to be substantive. See ,

e.g. , Clay Hyder Trucking Lines vs. Atherton , 450 So. 2d 318

(Fla. 1st DCA 1984)(holding that a provision in former Section

440.49(1)(a) which fixed responsibility for the cost of

rehabilitation was substantive).

48. The parties did not cite any authority holding that

the definition of "suitable gainful employment" in former Section

440.49(1) and Section 440.491(1)(g) is either substantive or

procedural. No such authority was found by the undersigned.

49. The definition of "suitable gainful employment" in

former Section 440.49(1) and Section 440.491(1)(g) is

substantive. The definition is used to determine the rights and

duties of the parties pertaining to training and education. See ,

Lockheed , 686 So. 2d at 666 (holding that substantive provisions

are those that affect the rights and duties of the parties).

50. The substantive rights of the parties were not altered

by changes in the statutes defining "suitable gainful

employment." Neither the definition itself nor the purposes of

the definition were changed after Petitioner's injury.

51. Before the injury, former Section 440.49(1)(a) used

language substantially similar to that in Section 440.491(1)(g)

to define suitable gainful employment ". . . solely for the

purposes of [Section 440.49]." After the injury, Section

440.491(1)(g) uses language substantially similar to that in

former Section 440.49(1) to define suitable gainful employment

". . . as used in [Section 440.491]."

52. The definition of "suitable gainful employment" in

Section 440.491(1)(g) does not create or diminish rights that

Petitioner had before his injury under former Section 440.49(1).

The purpose for which "suitable gainful employment" was defined

in former Section 440.49(1) is the same purpose for which it must

be defined in this proceeding under Section 440.491(1)(g). The

common purpose is to determine whether rehabilitation in the form

of training and education is required for Petitioner to return to

suitable gainful employment.

53. Under either statutory definition, training and

education are not required because Petitioner has returned to

suitable gainful employment without the need for rehabilitation.

Petitioner has returned to employment in both of his pre-injury

jobs.

54. Under either statute, suitable gainful employment is

reasonably attainable in light of Petitioner's age, education,

previous occupation, and injury. Under Section 440.491(1)(g),

suitable gainful employment is reasonably attainable in light of

Petitioner's transferable skills and work history.

55. Under either statute, Petitioner's current employment

offers an opportunity to restore Petitioner as soon as

practicable to his average weekly earnings at the time of the

injury. Petitioner's post-injury earnings, as nearly as

possible, are equal to his pre-injury earnings.

56. The judicial test for "suitable gainful employment"

that evolved under former Section 440.49(1)(a) can be applied to

cases under Section 440.491(1)(g). Since the definition is

substantially the same in both statutes, judicial authority that

construed definitional terms under the former statute is

analogous to common definitional terms in the current statute.

57. Petitioner has returned to "suitable gainful

employment" when tested by the judicial authority asserted by

Petitioner. Petitioner's employment after the injury provides

earnings equal to his pre-injury earnings. That employment is

appropriate to the medical restrictions imposed by the injury.

Petitioner is able to tolerate the duties of both jobs.

Petitioner's current employment is consistent with his aptitude

to engage in that kind of work. See , Thomas , 413 So. 2d at 817-

818; Lowry , 666 So. 2d at 978. After his injury, Petitioner has

become interested in and motivated toward a career in sociology.

7. Employment

58. Petitioner's earn ings from his employment at the Pub

are properly included in his post-injury earnings. Earnings from

the Pub are properly included in post-injury earnings whether

"suitable gainful employment " is defined under former Section

440.49(1)(a), Section 440.491(1)(g), or the judicial test.

59. Petitioner's employment with the Pub is "employment"

within the meaning of Section 440.02(15)(b)2. The term

"employment" is defined in Section 440.02(15)(b)2. to include:

. . . all private employment’s in wh ich four or

more employees are employed by the same employer

. . . .

The Pub is a private employer that has employed four or more

employees at all times material to this proceeding.

60. The statutory definition of employment did not change

after Petitioner's injury. Rule 38F-55.011(c)(1) considers wages

earned from employment in any combination of jobs to determine

whether Petitioner has returned to suitable gainful employment.

See also , Rules 38F-55.004(6) and 38F-55.001(16).

61. Petition er is not underemployed within the meaning of

Rule 38F-55.001(16). Petitioner's post-injury average weekly

wages from his employment in both jobs, as nearly as possible,

are equal to his average weekly wages from the same employment at

the time of the accident.

8. Screening And Evaluation

62. Respondent did not refer Petitioner for vocational

evaluation. Petitioner argues that Respondent violated the

requirements of former Section 440.49(1).

63. Former Section 440.49(1)(a) provided, inter alia :

. . . When an employee has suffered an injury

. . . and it appears that the injury will

preclude the employee from earning wages

equal to wages earned prior to the injury,

the employee shall be entitled to appropriate

training and education. Upon request by the

employee, the employer, or the carrier, the

division shall provide such injured employee

with appropriate training and education for

suitable gainful employment. . . . Within 10

days of the request, the division shall

respond by assigning a public or private

evaluator to conduct an evaluation to

determine if training and education are

appropriate. . . . (emphasis supplied)

64. In relevant part, Section 440.491(6)(a) provides:

Upon referral of an injured employee by the

carrier, or upon the request of an injured

employee, the division shall conduct a

training and education screening to determine

whether it should refer the employee for a

vocational evaluation and, if appropriate,

approve training and education . . . for the

employee. The division may not approve formal

training and education programs unless it

determines . . . that the reemployment plan

is likely to result in return to suitable

gainful employment. (emphasis supplied)

65. The statutory changes after Petitioner's injury do not

increase or diminish the substantive rights Petitioner had before

his injury. Before and after his injury, Petitioner enjoyed a

statutory right to an evaluation to determine whether training

and education are required to return Petitioner to suitable

gainful employment. After the injury, the procedure for

obtaining an evaluation was changed to require a screening.

66. The requirement for a screening is procedural. It may

be applied retrospectively.

67. Once Petitioner requested training and education,

Respondent was required by Section 440.491(6)(a) to conduct a

" . . . screening to determine whether it should refer the

employee for . . . evaluation and, if appropriate, approve

training and education. . . ." Respondent conducted the

statutorily required screening.

68. Rule 38F-55.009, in relevant part, provides that the

screening process shall consist of:

(a) a review of all medical and vocational

documentation relevant to the . . . injury to

determine whether the . . . employee is able

to perform the duties of the pre-injury

occupation; and

(b) a review of the documentation which

supports the payment of temporary partial

disability benefits to determine the . . .

employee's inability to obtain suitable

gainful employment because of his injury;

(c) an interview with the . . . employee.

* * *

(5) . . . [Respondent] shall not . . . refer

the . . . employee for . . . evaluation:

* * *

(c) if the . . . employee has returned to and

maintained suitable gainful employment for at

least 90 days . . . .

(6) . . . [Respondent] shall not refer the

. . . employee for . . . evaluation if the

. . . employee:

* * *

(c) has transferable skills which would allow

return to work in suitable gainful

employment.

69. The screening conducted by Respondent complied with the

requirements of Rule 38F-55.009. Respondent properly determined

that Petitioner should not be referred for evaluation because

Petitioner had returned to suitable gainful employment without

training and education.

70. The rules promulgated by Respondent do not resolve the

issue of whether the requirement for a screening applies to

Petitioner's accident in 1993. In relevant part, Rule 38F-

55.015(2) provides:

The Division shall expend funds . . . only:

(a) for vocational evaluations and

retraining for dates of accident on or after

October 1, 1989 through December 31, 1993,

and

(b) for reemployment services authorized by

the division pursuant to rule chapter 38F-55

. . . for dates of accident on or after

January 1, 1994. (emphasis supplied)

71. Rule 38F-55.015(2)(a) limits the expenditure of funds

for dates of accident before 1994 to "evaluations" and

"retraining." The rule does not expressly authorize the

expenditure of funds for the "screening" required in Section

440.491(1). Respondent had no express authority under Rule 38F-

55.015(2)(a) to expend funds to conduct a screening for

Petitioner. 5

72. Even if former Section 440.49(1) controlled

Petitioner's request for training and education, Respondent

should not have referred Petitioner for vocational evaluation.

After Petitioner requested training and education from

Respondent, former Section 440.49(1)(a) required Respondent to

refer Petitioner for vocational evaluation only after Respondent

determined that Petitioner was precluded from ". . . earning

wages equal to wages earned prior to the injury."

73. Even if a screening was not an express requirement

under former Section 440.49(1), it was an implied requirement.

In effect, the former statute required Respondent to screen

Petitioner to determine whether Petitioner's post-injury earnings

equaled his pre-injury earnings before Respondent could refer

Petitioner for evaluation.

74. Petitioner failed to satisfy the statutory prerequisite

for evaluation under former Section 440.49(1). Petitioner's

injury did not preclude Petitioner from earning wages equal to

wages earned prior to his injury.

aining And Education

75. Even if Petitioner were entitled to training and

education, he would not be entitled to education leading to a

bachelor's degree. Such education is not contemplated by

statute or rule.

76. The term "training and education" is not defined by

statute or rule. It is not defined in former Sections 440.02 or

440.49(1), in current Sections 440.02 or 440.491(1), in Rule

38F-55 or former Rule 8F-8. However, the term "educational

program" is defined by rule.

77. Rule 38F-55.001(5) defines an "education program," in

relevant part, to include:

. . . a formal course of study or a

certificate program in a training and

education facility, agency or institution

operating under chapter 246, Florida

Statutes, and subject to the rules of the

State Board of Independent Post-secondary

Vocational, Technical, Trade and Business

Schools as provided by sections 246.201-

246.231, Florida Statutes; or any community

college established under part III of chapter

240, Florida Statutes; or a career education

program as defined by section

228.041(22)(a)3., Florida Statutes; or any

formal training course for regulated

occupations approved by any state regulatory

agency. . . .

78. Former Rule 8F-8.021(4) defined an "education program,"

in relevant part, to include:

. . . a f ormal course of study in a training

and education facility, agency, or

institution, approved by one of the

Department of Education Regional Coordinating

Councils for vocational and adult education

programs, or the State Board of Independent

Post-Secondary Vocational, Technical, Trade &

Business Schools and at any Community College

established under part III of chapter 240.

79. Rule 38F-55.001(5) and former Rule 38F-8.021(4) limit

the definition of an "education program" to vocational or adult

education, trade or business schools, and community college

programs leading to associate degrees. Section 240.301(3)(a).

Neither rule contemplates a college program leading to a

bachelor's degree.

10. Attorney Fees

80. Petitioner's requests for attorney fees and costs are

denied. An award of fees and costs is not allowable unless

specifically authorized. Shipp vs. State Workers' Compensation

Trust Fund , 481 So. 2d 76 (Fla. 1st DCA 1986); Knight vs. City of

Miami , 421 So. 2d 21 (Fla. 1st DCA 1982). The fees and costs

Petitioner seeks are not specifically authorized in Chapter 440.

81. Fees and costs are authorized in Section 440.34 only if

Petitioner is the prevailing party and, then, only if awarded by

a judge of compensation claims. Petitioner is not the prevailing

party in this proceeding, and the undersigned is not a judge of

compensation claims.

82. Fees and costs may be awarded by the undersigned in

Chapter 120 if Petitioner is the prevailing party, and the

nonprevailing party participated in the proceeding for an

improper purpose. Section 120.59(6)(b). Petitioner is not the

prevailing party.

83. Even if Petitioner had prevailed, neither Respondent

nor Intervenor participated in this proceeding for an improper

purpose. Both Respondent and Intervenor presented justifiable

issues of law or fact.

84. Neither Respondent nor Intervenor pursued this matter

for improper purposes. Neither engaged in unnecessary delay or

needlessly increased Petitioner's costs in pursuing the remedies

Petitioner sought in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a Final Order finding that

training and education are not required for Petitioner to return

to suitable gainful employment and denying Petitioner's request

for training and education.

DONE AND ENTERED this 11th day of July, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 -3060

(904) 488 -9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of July, 1997.

ENDNOTES

1/ All chapter and section references are to Florida Statutes

(1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules are to rules

promulgated in the Florida Administrative Code in effect on the

date of this Recommended Order.

3/ Petitioner's post-injury average weekly wage from Intervenor

is approximately 74 percent of Petitioner's reported income and

approximately 59 percent of the stipulated average weekly wage

before the injury.

4/ Sec. 440.491(1)(g) adds the terms "transferable skills" and

"work history" as elements in the definition of suitable gainful

employment. Neither term was used to define suitable gainful

employment in former Sec. 440.49(1). Sec. 440.491(1)(g) replaces

the term "individual's age," in former Sec. 440.49(1), with the

term "employee's age."

5/ The rule is problematic for other reasons. Rule 38F-

55.015(2)(b) fails to include any express authority for the

expenditure of funds for vocational evaluations for dates of

accident on or after January 1, 1994. Sec. 440.491(6)(a)

precludes the expenditure of funds for training and education in

the absence of a vocational evaluation. If the rule precludes

the expenditure of funds for a vocational evaluation and if the

statute precludes training and education in the absence of a

vocational evaluation, the rule and the statute arguably work

together to preclude the expenditure of funds for either purpose

and thereby reduce the statute to a nullity.

The rule also fails to explain the difference, if any, in

the term "retraining," used in Rule 38F-55.015(2)(a), and the

term "reemployment services," used in Rule 38F-55.015(2)(a).

While the latter term is defined in Sec. 440.491(1)(e), the

former term is not defined in either former Sec. 440.49(1), Sec.

440.491(1), Sec. 440.02, or Rule 38F-55.001.

Sections 440.491(1)(g) and (6)(a) use neither the term

"retraining" nor the term "reemployment services." Rather, the

relevant statutes use the term "training and education." The

term "training and education" is not defined in Secs. 440.491(1),

440.02, or Rule 38F-55.001. However, the term "education

program" is defined in Rule 38F-55.001(5).

COPIES FURNISHED:

Douglas L. Jamerson, Secretary

Department of Labor and

Employment Security

Hartman Building, Suite 303

2012 Capital Circle Southeast

Tallahassee, Florida 32399-2152

Edward Dion, General Counsel

Department of Labor and

Employment Security

Hartman Building, Suite 307

2012 Capital Circle Southeast

Tallahassee, Florida 32399-3100

Enrique Escarraz, Esquire

2121 Fifth Avenue North

Post Office Box 847

St. Petersburg, Florida 33731

Michael G. Moore, Esquire

Department of Labor and

Employment Security

Hartman Building, Suite 307

2012 Capital Circle Southeast

Tallahassee, Florida 32399-2189

George A. Helm, III, Esquire

Langston, Hess, Bolton,

Znosko and Helm, P.A.

111 South Maitland Avenue

Maitland, Florida 32751

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.

1 . All chapter and section references are to Florida Statutes

(1995) unless otherwise stated.

2 . Unless otherwise stated, all references to rules are to rules

promulgated in the Florida Administrative Code in effect on the

date of this Recommended Order.

3 . Petitioner's post-injury average weekly wage from Intervenor

is approximately 74 percent of Petitioner's reported income and

approximately 59 percent of the stipulated average weekly wage

before the injury.

4 . Sec. 440.491(1)(g) adds the terms "transferable skills" and

"work history" as elements in the definition of suitable gainful

employment. Neither term was used to define suitable gainful

employment in former Sec. 440.49(1). Sec. 440.491(1)(g) replaces

the term "individual's age," in former Sec. 440.49(1), with the

term "employee's age."

5 . The rule is problematic for other reasons. Rule 38F-

55.015(2)(b) fails to include any express authority for the

expenditure of funds for vocational evaluations for dates of

accident on or after January 1, 1994. Sec. 440.491(6)(a)

precludes the expenditure of funds for training and education in

the absence of a vocational evaluation. If the rule precludes

the expenditure of funds for a vocational evaluation and if the

statute precludes training and education in the absence of a

vocational evaluation, the rule and the statute arguably work

together to preclude the expenditure of funds for either purpose

and thereby reduce the statute to a nullity.

The rule also fails to explain the difference, if any, in

the term "retraining," used in Rule 38F-55.015(2)(a), and the

term "reemployment services," used in Rule 38F-55.015(2)(a).

While the latter term is defined in Sec. 440.491(1)(e), the

former term is not defined in either former Sec. 440.49(1), Sec.

440.491(1), Sec. 440.02, or Rule 38F-55.001.

Sections 440.491(1)(g) and (6)(a ) use neither the term

"retraining" nor the term "reemployment services." Rather, the

relevant statutes use the term "training and education." The

term "training and education" is not defined in Secs. 440.491(1),

440.02, or Rule 38F-55.001. However, the term "education

program" is defined in Rule 38F-55.001(5).

COPIES FURNISHED:

Douglas L. Jamerson, Secretary

Department of Labor and

Employment Security

Hartman Building, Suite 303

2012 Capital Circle Southeast

Tallahassee, Florida 32399-2152

Edward Dion, General Counsel

Department of Labor and

Employment Security

Hartman Building, Suite 307

2012 Capital Circle Southeast

Tallahassee, Florida 32399-3100

Enrique Escarraz, Esquire

2121 Fifth Avenue North

Post Office Box 847

St. Petersburg, Florida 33731

Michael G. Moore, Esquire

Department of Labor and

Employment Security

Hartman Building, Suite 307

2012 Capital Circle Southeast

Tallahassee, Florida 32399-2189

George A. Helm, III, Esquire

Langston, Hess, Bolton,

Znosko and Helm, P.A.

111 South Maitland Avenue

Maitland, Florida 32751

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.