00-003302 William Spaulding vs. Department Of Labor And Employment Security, Division Of Workers` Compensation, Bureau Of Rehabilitation And Medical Services Status: Closed Recommended Order on Monday, February 19, 2001.

Summary: Respondent, Division of Workers` Compensation, disenrolled Petitioner for a retraining program for poor attendance and lack of progress.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM SPAULDING, )

)

Petitioner, )

)

vs. ) Case No. 00-3302

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, DIVISION OF )

WORKERS' COMPENSATION, BUREAU OF )

REHABILITATION AND MEDICAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, Jeff B. Clark,

held a formal hearing in the above-styled case on October 25,

2000, in Tampa, Florida.

APPEARANCES

For Petitioner: Leslie C. Riviere, Esquire

Harris & Riviere

304 South Fielding Avenue

Tampa, Florida 33606

For Respondent: Elana Jones, Esquire

Department of Labor and

Employment Security

Hartman Building, Suite 107

2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

Whether the conduct of the Petitioner breached the terms of

the Agency and Student Agreement for Sponsorship of Retraining

and its amendment to the extent that Respondent was justified in

terminating retraining benefits authorized by Section 440.491,

Florida Statutes.

PRELIMINARY STATEMENT

On January 10, 2000, the Bureau of Rehabilitation and

Medical Services, Division of Workers' Compensation, Florida

Department of Labor and Employment Security, notified New

Horizons Computer Learning Center by letter that Petitioner,

William Spaulding, would "no longer be app r oved . . . in the

Microsoft Certified Systems Engineer Program." Petitioner was

mailed a copy of the letter to New Horizons. On February 8,

2000, Petitioner was notified by Respondent that he was "no

longer eligible for training and education as you did not

maintain minimum standards of progress, including full-time

attendance." This letter further advises Petitioner of his right

to request a hearing.

On July 7, 2000, Petitioner filed his amended request for

hearing which was forwarded to the Division of Administrative

Hearings by letter from Respondent dated August 9, 2000.

An Initial Order was mailed to the parties on August 10,

2000. Petitioner responded to the Initial Order on August 16,

2000, and moved for summary hearing on the same date. Respondent

responded to the Initial Order on August 17, 2000, and objected

to the motion for summary hearing. The Motion for Summary

Hearing was denied by O rder dated August 23, 2000.

A Notice for Hearing and an Order for Pre-hearing

Instructions were mailed to the parties on August 23, 2000. On

the motion of Respondent the final hearing was rescheduled from

November 15, 2000, to October 25, 2000. A Joint Prehearing

Stipulation was filed on October 17, 2000.

At the final hearing Petitioner testified in his own behalf

and submitted Petitioner's Exhibits numbered 1-2 into evidence.

Respondent's witnesses were George Kaye, senior vocational

rehabilitation counselor, employed by Respondent; and Soovje

Windeish, accounts executive and counselor for New Horizons.

Respondent entered Exhibits numbered 1-7 into evidence.

At the close of the presentation of evidence Respondent

ordered the preparation of the transcript, and the parties, upon

mutual agreement, were given 14 working days from the filing of

the transcript in which to file their proposed recommended

orders. The court reporter filed the Transcript on November 6,

2000.

FINDINGS OF FACT

1. Petitioner is a 46-year-old male who has had varied

employment, approximately three years in college-level credit

courses, four years in the United States Marine Corps, and was

employed as an automobile mechanic at the time of his industrial

accident on June 11, 1997.

2. Petitioner, who walks with the aid of a cane, suffers

from pain and swelling in the right knee, and pain in both hips

and the left knee. Petitioner had arthroscopic surgery on his

right knee in July 1997.

3. On January 7, 1998, Petitioner underwent a functional

capacity evaluation which concluded that he could "perform light

to medium physical demand level for eight hours a day." On

July 25, 1998, he reached maximum medical improvement and was

given a five-percent permanent impairment rating. Petitioner has

not been employed since the accident.

4. Petitioner received approximately $300 per week in

worker's compensation benefits. When worker's compensation

benefits terminated in late 1998 he was "living on the streets";

he had no car.

5. Section 440.491, Florida Statutes, creates the

unemployment services program and authorizes all recommended

programs and expenditures to injured employees.

6. Chapter 38J-1.005(1)(a), Florida Administrative Code,

states: "The Division shall not continue payment for training or

educational programs for Eligible Individuals who fail to

maintain institution standards for both satisfactory academic

performance and a full academic load unless such failure is due

to circumstances beyond the Eligible Individual's control such as

personal illness, physical limitation, the need for part-time

employment or to care for children or other family members or

other similar circumstances."

7. Petitioner was approved for retraining by Respondent in

September 1999. On September 8, 1999, Petitioner and Respondent

entered into an " A gency and S tudent A greement for S ponsorship of

R etraining."

8. This agreement states, in part:

(a) "the student shall:

4. Be responsible for transportation

arrangements and costs associated with any

Division-sponsored retraining program unless

such travel expenses are authorized and

approved by the Division in advance of the

travel pursuant to Rule Chapter 38F-55.015,

F.A.C.

5. Attend the approved program as structured

in the course curriculum on a full-time,

contiguous (year-round) basis until the

completion of the program unless, (a) written

approval to deviate from the approved program

is received from the Division and, (b) an

exacerbation of a medical condition precludes

full-time attendance or participation in the

approved program and the student notifies the

division staff within two business days of

the knowledge and provides medical

documentation from the treating physician

within 14 days of initial treatment. In such

an event, continuation or readmission into

the approved program shall be contingent upon

the established policy of the training or

education program.

(b) "the division shall:

6. permanently withdraw sponsorship of

training when

a. The student is able and fails to

attend training on a full-time, year-round

basis, or

b. There are more than three instances of

failure by the student to meet their

responsibilities above, or

c. The student fails to maintain the

performance standards of the program, or

d. The student's participation is

interrupted for a period greater than 90 days

for reasons other than a medical

exacerbation.

(c) Dates of Training -- 9/20/99 --

6/20/2000"

9. Respondent's representative, George Kaye, testified that

he fully discussed "student responsibilities" with Petitioner and

believed that Petitioner was fully capable of successfully

completing the training.

10. Petitioner started receiving worker's compensation

benefits after the retraining began; he reported that he "got his

own place to live" and "bought a car with his next worker's

compensation payment."

11. Although Petitioner was to have started the curriculum

on September 20, 1999, he did not attend his first class until

September 27, 1999. Thereafter, he attended only three classes

during the months of September and October. In November, he

attended six laboratories.

12. At the time Petitioner was disenrolled, he had

completed three courses, Windows 98 (Beg), Windows 98 ( Int), Beg.

DOS 6.2 and was retaking A Certification; these courses were

preparations for the Microsoft Certified Systems Engineer course

and should have been completed in the first four weeks. The A

Certification course should have been completed in the second

month. It would have been possible, but very difficult for

Petitioner to complete the curriculum, given his progress at the

time he was disenrolled.

13. A personal computer was not required for the course.

Having one would have been helpful, but there were computers

readily available to be used at New Horizons.

14. On December 3, 1999, Petitioner and Respondent's

representative, George Kaye, met and agreed that from December 3,

1999, to June 20, 2000, Petitioner would "attend school three

days a week. If he does not, case will be closed after payment

for school attended." This agreement was memorialized by an

amendment to the Agency and Student Agreement for Sponsorship of

Retraining.

15. Petitioner offered a myriad of reasons for his failure

to attend class: transportation problems, the distance from his

home in Seffner to New Horizons in Tampa, his lack of a computer,

and that he was studying at home. George Kaye attempted to help

Petitioner by having his automobile repaired, obtaining bus

passes, getting Petitioner suitable clothing, suggesting that

Petitioner move closer to New Horizons, and giving Petitioner the

"benefit of the doubt" regarding class attendance.

16. Respondent attended school nine days out of a possible

18 days in December and did not attend school the first week of

January 2000.

17. Petitioner offered into evidence a letter from the

Veteran's Administration stating that Petitioner had been

approved for a non-service connected disability providing

Petitioner $749.00 per month. This entitlement was effective

April 1, 2000, after Petitioner had been disenrolled from

retraining.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and a 120.57 (1), Florida Statutes.

19. As the party seeking relief, Petitioner has the burden

of proving by a preponderance of the evidence that Respondent

inappropriately disenrolled him from the retraining program made

available to him through Section 440.491, Florida Statutes.

20. In accordance with Section 440.491, Florida Statutes,

Petitioner was enrolled in an appropriate rehabilitation training

program. Section 440.491(6)(a), Florida Statutes, authorizes

Respondent to "establish training and education standards

pertaining to employee eligibility, course curricula and

duration, and associated cost."

21. Petitioner and Respondent entered into an Agency and

Student Agreement for Sponsorship of Retraining which established

Petitioner's responsibilities for continued sponsorship by

Respondent in the training program; this agreement required

"full-time" attendance in the training program.

22. Petitioner and Respondent modified the Agency and

Student Agreement for Sponsorship of Retraining by specifically

delineating minimum attendance requirements and indicating that

failure to maintain the minimum attendance requirements would

result in disenrollment.

23. Petitioner failed to meet minimum attendance

requirements without reasonable excuses.

24. Respondent appropriately disenrolled Petitioner from

rehabilitation training.

RECOMMENDATION

It is hereby

RECOMMENDED that Respondent enter a final order denying the

relief requested by Petitioner.

DONE AND ENTERED this 12th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of December, 2000.

COPIES FURNISHED:

Leslie C. Riviere, Esquire

Harris & Riviere

304 South Fielding Avenue

Tampa, Florida 33606

Elana Jones, Esquire

Department of Labor and

Employment Security

Hartman Building, Suite 107

2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

Sherri Wilkes-Cape, General Counsel

Department of Labor and Employment Security

The Hartman Building, Suite 307

2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189

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 must be filed with the agency that will

issue the Final Order in this case.