99-000706 Melton Nelson vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Monday, August 7, 2000.

Summary: Petitioner failed to show that deceased member`s death was in the line of duty by failing to introduce expert medical testimony in the issue.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARILYN NELSON, )

)

Petitioner, )

)

vs. ) Case No. 99-0706

)

DEPARTMENT OF MANAGEMENT SERVICES, )

DIVISION OF RETIREMENT, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 29, 2000, in Fernandina Beach, Florida, before the

Division of Administrative Hearings, by its designated

Administrative Law Judge, Stephen F. Dean.

APPEARANCES

For Petitioner: Gary Baker, Esquire

Post Office Box 1177

Callahan, Florida 32011

For Respondent: Emily Moore, Esquire

Division of Retirement

2639 North Monroe Street

Building D, Suite 23 0

T allahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

Whether Petitioner, Marilyn Nelson, the surviving spouse of

Melton Nelson, is entitled to in-the-line-of-duty death

benefits.

PRELIMINARY STATEMENT

This case arose from the Division of Reti rement's

(Respondent) denial of Petitioner's Marilyn Nelson's request for

in-the-line-of-duty (ILOD) death benefits on the account of the

later Melton Nelson, a member of the Florida Retirement System

(FRS).

By final agency action letter, dated September 22, 1998,

Respondent denied the request of Marilyn Nelson for ILOD death

benefits. Petitioner timely filed a request for hearing and the

case was referred to the Division of Administrative Hearings for

the purpose of disposing of the Petition by Recommended Order.

Petitioner, represented by counsel, appeared and testified

on her own behalf, but presented no other witnesses. Petitioner

introduced Exhibit Nos. 1-4 which were received into evidence.

Respondent presented the testimony of its representative,

Stanley Colvin, Administrator, Survivor Benefits Section, Bureau

of Benefit Payments, and of the following staff of the Nassau

County Public Works Department: Jack D.'Amato, Director of

Public Works (supervisor of Melton Nelson); George Hartman,

Assistant Road and Bridge Superintendent (co-worker and

successor of Melton Nelson); William Johnson, (co-worker of

Melton Nelson); and Lew Eason, Supervisor of the Human Relations

Department. Respondent's Exhibits 1 through 12 were also

received into evidence.

Respondent also filed a Motion for Official Recognition of

relevant statutes and rules; the motion was granted. A

transcript was not ordered.

At the close of the hearing, Respondent noted the absence

of medical evidence establishing ILOD death and moved for a

recommended order denying the Petition. Petitioner moved to

keep the record open to present medical evidence in the form of

deposition testimony.

Petitioner's motion was granted, and Petitioner was allowed

14 days (until March 14, 2000) to schedule the deposition of a

licenses medical doctor. Petitioner failed to schedule a

deposition, but filed the March 20, 2000, Sworn Statement of

Arthur Forbes, a Physician's Assistant on or about May 22, 2000.

Respondent moved to strike the sworn statement and close the

record. Respondent's motion to strike was granted by Order of

this tribunal issued June 20, 2000. This Order also provided

that, "[I]n the absence of the setting of the Forbes'

deposition, in 10 days (June 30, 2000) the record in this case

will be closed, and the parties will have until July 24, 2000,

to file their proposed findings."

On July 7, 2000, Respondent received a Notice of Taking

Deposition of Arthur Forbes, mailed on July 5, 2000, setting the

deposition at noon on Monday, July 17, 2000. On the morning of

the scheduled deposition, the court reporter's office called to

advise the undersigned that Mr. Baker's office had cancelled the

deposition because the witness was not served by the Sheriff's

department. The deposition was not rescheduled, and has not

been taken.

Respondent filed Proposed Findings of Fact which were read

and considered. Petitioner did not file proposed findings.

FINDINGS OF FACT

1. Petitioner, Marilyn Nelson, is the surviving spouse of

Melton Nelson, who died on May 7, 1998. Petitioner and Melton

Nelson had been married since June 15, 1997.

2. At the time of his death, Mr. Nelson was employed by

Nassau County as the Assistant Road and Bridge Superintendent.

He had been so employed for about 3 years.

3. Don ald B. Twiggs, M.D., was Mr. Nelson's treating

physician. Dr. Twiggs, completed Mr. Nelson's Death

Certificate, which states that Mr. Nelson died from

cardiopulmonary arrest and coronary artery disease. There was

no autopsy to determine the cause of death.

4. During the course of his employment, Mr. Nelson was

absent due to colds and other minor illnesses. His absences

were not excessive and he had not complained either to his

supervisor or to the personnel office of stress on the job.

Further, Mr. Nelson did not advise his employer that his job was

affecting his health or request accommodations based upon his

physical condition.

5. Marilyn Nelson was not aware that Mr. Nelson had heart

problems.

6. Mr. Nelson was being treated by Dr. Twiggs for ad ult

onset diabetes, hypertension, and anxiety.

7. As Assistant Road and Bridge Superintendent, Mr.

Nelson's job was demanding and he often was on call due to road

and bridge repairs. He supervised and assigned crews, but was

not required customarily to do physically demanding work.

8. Mr. Nelson was a "laid-back" supervisor who did not

confront or correct his staff. He had the backing of management

to discipline his subordinates. The employer was satisfied with

Mr. Nelson's work performance. There were no confrontations or

arguments between Mr. Nelson and his supervisor, and he was

never "dressed-down" or threatened with loss of his job.

9. Mr. Nelson reported to work about 7:00 a.m. on May 7,

1998. After a brief conversation with fellow workers and some

of his subordinates, he walked back to his truck and collapsed.

William Johnson, one of his subordinates, observed that Mr.

Nelson "did not look good" and was "kinda red in the face."

However, there had been no altercation, argument or

confrontation, and Mr. Nelson did not appear upset.

10. The Respondent denied Marilyn Nelson's application for

in-line-of-duty (ILOD) death benefits, advising that, although

Mr. Nelson suffered a heart attack while on the job, which

resulted in his death, the heart attack was not caused by any

job-related accident or injury.

11. Marilyn Nelson's claim for death benefits was also

denied by Workers' Compensation, which found that the injury was

personal in nature and not job related.

12. Marilyn Nelson presented no expert medical testimony

to support her claim that Mr. Nelson's death arose out of the

performance of his job duties.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties to this

action pursuant to Section 120.57(1), Florida Statutes.

14. Marilyn Nelson is the surviving spouse of Melton

Nelson, who was a member of the FRS at the time of his death.

15. The Petitioner has the burden of proof in these

proceedings. Young v. State, Department of Community Affairs ,

625 So. 2d 831 (Fla. 1993). Petitioner must demonstrate by a

preponderance of competent evidence that she is entitled to the

benefit she seeks. Agrico Chemical Co v. State Department of

Environmental Regulation , 365 So. 2d 759 (Fla. 1st DCA 1978).

16. Section 120.021(14), Florida Statutes, provides:

(14) "Death-in-line-of-duty" means death

arising out of and in the actual performance

of duty required by a member's employment

during his or her regularly scheduled

working hours or irregular working hours as

required by the employer. The administrator

may require such proof as he or she deems

necessary as to the time, date, and cause of

death, including evidence from any available

witnesses. Workers' compensation records

under the provisions of Chapter 440 may also

be used.

17. Petitioner has the burden of proving her entitlement

to ILOD death benefits. In such a case, competent medical

evidence is probative of causation and required by rule. The

Division of Retirement is guided by the rules of the State

Retirement Commission as to what constitutes competent medical

evidence. Rule 60R-1.00481, Florida Administrative Code,

provides:

(1) Competent medical evidence of total and

permanent disability is required for a

determination of disability retirement

eligibility.

(2) Competent medical evidence of total and

permanent disability requires testimony of a

licensed physician, either at the hearing,

or in a deposition, in which the member and

the Division of Retirement had an

opportunity to participate.

(3) In cases of eligibility for in the line

of duty disability benefits, competent

medical evidence shall be required showing

that an injury or illness, arising out of

and in the actual performance required by

the member's employment, was the substantial

producing cause or aggravating cause of the

member's total and permanent disability.

(4) Medical records may be admitted as

hearsay, but shall be insufficient for a

finding of disability retirement

eligibility.

18. Petitio ner must establish, to a reasonable degree of

medical probability, a causal relationship between the heart

attack which led to Mr. Nelson's death, and the actual

performance of his duties. Timmerman v. Division of Retirement ,

DOAH Case No. 98-5203.

19. Petitioner did not produce any expert medical

testimony regarding a causal relationship between the heart

attack which led to Mr. Nelson's death and the performance of

his duties. Petitioner failed to carry her burden of proof.

20. Accordingly, Petition er has not established that she

is entitled to receive ILOD death benefits from the FRS account

of her late husband.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED:

That a final order be entered by the Depart ment of

Management Services, Division of Retirement holding that

Petitioner's application for ILOD death benefits from the

account of her late husband, Melton Nelson be denied.

DONE AND ENTERED this 7th day of August, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of August , 2000.

COPIES FURNISHED:

Emily Moore, Esquire

Division of Retirement

Cedar Executive Center, Building D

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Gary Baker, Esquire

Post Office Box 1177

Callahan, Florida 32011

Ron Poppell, Interim Director

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Bruce Hoffmann, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

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.