02-002522 Edna M. Shepherd vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Wednesday, September 18, 2002.

Summary: Petitioner failed to show why she had failed to complete her application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDNA M. SHEPHERD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2522

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION )

OF RETIREMENT, )

)

Respondent. )

)

RE COMMENDED ORDER

A formal hearing was held pursuant to notice in the above -

styled case by Stephen F. Dean, assigned Administrative Law

Judge of the Division of Administrative Hearings, on August 27,

2002, in Inverness, Florida.

APPEARANCES

For Petiti oner: Leon M. Boyajan, II, Esquire

2303 West Highway 44

Inverness, Florida 34453 - 3809

For Respondent: Thomas E. Wright, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suit e 260

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

Whether Petitioner's application for disability retirement

benefits should be reinstated.

PRELIMINARY STATEMENT

Petitioner Edna Shepherd is a member of the Florida

Retirement System a nd applied for disability retirement benefits

in September 2001. The Division of Retirement (Division), after

several attempts to have Ms. Shepherd submit all the documents

necessary to process her application, dismissed her claim by

final agency action l etter on March 25, 2002. Ms. Shepherd

timely requested a hearing, which is the subject of this

Recommended Order .

In addition to Petitioner's testifying in her own behalf,

she presented five exhibits, which were admitted. Mark Sadler,

Administrator for the Disability Section of the Division of

Retirement testified for the Division, and, in addition, the

Division submitted six exhibits, which were accepted into

evidence. The Division requested and was granted official

recognition of Chapter 60S - 4.0035, F lorida Administrative Code ,

and the rules of the Division of Retirement.

Respondent submitted a Proposed Recommended Order which was

read and considered.

FINDINGS OF FACT

1. Petitioner Edna Shepherd is a member of the Florida

Retirement System.

2. I n September 2001, Ms. Shepherd submitted an

application for disability retirement benefits to the Division

of Retirement.

3. The application was not complete and several documents

were needed to process the application.

4. By letter dated September 27, 2001, the Division wrote

Ms. Shepherd acknowledging receipt of the disability application

and requesting additional information. Enclosed with the letter

were two blank FR - 13b forms (Physician's Statement Forms), which

were necessary to complete the appl ication.

5. Petitioner did not respond to the September 27, 2001,

letter, so the Division mailed another request on October 29,

2001. Again two blank FR - 13bs were included with the letter.

6. On November 29, 2001, the Division mailed a third

request for information to Petitioner. Blank forms were also

included with this letter.

7. By letter dated January 3, 2002, the Division mailed a

fourth request to Ms. Shepherd again requesting information

necessary to complete her application for disability retire ment

benefits.

8. After the Division did not receive a response to its

previous letters mailed to Petitioner, it sent a letter dated

February 4, 2002, by certified mail to Ms. Shepherd advising her

that she had 21 days from the date of the letter to sub mit the

necessary information or her application would be cancelled.

9. Finally, after more than six months since submission of

her application, the Division sent a letter dated March 25,

2002, by certified mail to Ms. Shepherd notifying her that her

disa bility application was cancelled and giving her 21 days to

request a hearing. She did receive this letter and this timely

appeal followed.

10. Petitioner's attorney made two submissions to the

Division dated September 14, 2001, and February 22, 2002;

how ever, they did not contain the requested physician

statements.

11. As of the hearing, the requested physician statements

still had not been supplied to the Division.

12. The applicant is responsible for ensuring the Division

receives the information nece ssary to process an application for

disability retirement benefits.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties in this case.

14. The Florida Retirement System was created by the

Leg islature in 1970 and is codified in Chapter 121, Florida

Statutes (2001).

15. Rule 60S - 4.0035(4), Florida Administrative Code ,

"Retirement Application and Effective Retirement Date" provides:

When a member's application for retirement

benefits is received , the Division will:

(a) Acknowledge the receipt of the member's

application and advise him of any required

information or documents that have not yet

been received. Such information may

include, but is not limited to, birthdate

verification, beneficiar y designation,

option selection as required by Rule 60S -

4.010, F.A.C., spousal acknowledgement if

option 1 or 2 is selected as required by

subsection 60S - 4.010(9), F.A.C., any

payments due the member's account for

purchase of additional service credit or a

written statement from the member that the

member does not wish to claim such service

credit, and final certification of earnings.

(b) Establish the effective retirement date

as provided in paragraph 60S - 4.0035(3)(a),

F.A.C., for normal or early retirem ent, or

as provided in paragraph 60S - 4.0035(3)(b),

F.A.C., for disability retirement.

(c) Send follow - up notices, reminding the

member of any required information or

documents that have not yet been received.

(d) If all the required information or

documents have not been received by the

Division after 3 follow - up notices have been

sent to the member, a certified letter will

be sent advising the member he has 21 days

to provide such information or documents

without loss of benefits.

(e) If all th e required information or

documents have not been received by the

Division after the 21 days specified in the

certified letter, a final agency action

letter will be sent to the member advising

the member that his application is cancelled

and he must reappl y to receive benefits,

with a new retirement date established upon

application.

16. The Division in September 2001, received

Ms. Shepherd's initial application for disability benefits. The

Division mailed more than three follow - up n otices to

Ms. Shepherd requesting additional information. Despite the

numerous letters that were sent to her, neither Ms. Shepherd nor

her attorney supplied the requested information.

17. Ms. Shepherd was notified that if she failed to submit

the r equired information, her application would be cancelled.

She was given a final agency action letter and she still did not

supply the requested statements.

18. Petitioner has the burden of providing sufficient

evidence to support her case. The burde n of proof in an

administrative proceeding is on the party asserting the

affirmative of the issue unless the burden is otherwise

established by statute. Florida Department of Transportation v

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1 DCA 1981); Balino v.

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

(Fla. 1 DCA 1977). Petitioner must demonstrate by a

preponderance of the evidence that she is entitled to the agency

action she proposes, that is, the reinstatement of her

disability retireme nt application. Ms. Shepherd received more

than three notices requesting she complete her application. She

failed to act, so the Division, in accord with its rule,

cancelled her application. No evidence was introduced by the

Petitioner to support her re quest of the Division to rescind the

cancellation.

19. Based upon a lack of record evidence, there is no

basis for the Division of Retirement to grant Ms. Shepherd's

request to reinstate her disability retirement application.

However, this decision is not a bar to re - application.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

That the Division of Retirement issue a Final Order denying

the request of Petitioner Edna M. Shepherd to reinstate her

disabi lity retirement application.

DONE AND ENTERED this 18th day of September, 2002, 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

(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 18th day of September, 2002.

COPIES FURNISHED :

Leon M. Boyajan, II, Esquire

2303 West Highway 44

Inverness, Florida 34453 - 3809

Thomas E. Wright, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florid a 32399 - 0950

Erin Sjostrom, Director

Division of Retirement

Department of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399 - 1560

Monesia Taylor Brown

Deputy General Counsel

Depa rtment of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended orde r. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.