03-002287 Sheila Kiess vs. Florida International University Status: Closed Recommended Order on Monday, November 17, 2003.

Summary: Petitioner, who was hurt while working for Respondent as law enforcement officer, suffered catastrophic injury on or after January 1, 1995, making her eligible for lifetime health insurance benefits pursuant to Section 112.19(2)(h)1., Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEILA KIESS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2287

)

FLORIDA INTERNATIONAL )

UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cas e came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

September 29, 2003, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: James C. Casey, Esquire

Law Offices of Slesnick & Case y, LLP

2701 Ponce de Leon Boulevard, Suite 200

Coral Gables, Florida 33134

For Respondent: Peter A. Blanco, Esquire

Kubicki Draper, P.A.

25 West Flagler Street, Penthouse

Miami, Florida 33130

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, who was hurt

while working for Respondent as a law enforcement officer,

suffered a catastrophic injury on or after January 1, 1995,

making her eligible for lifetime health insurance benefits

pursuant to Section 112.19(2)(h)1., Florida Statutes.

PRELIMINARY STATEMENT

This case arises from a claim for lifetime health insurance

benefits that Petitioner Sheila Kiess presented to Respondent

Florida International University —— for whom she had worked a s a

law enforcement officer —— after suffering the catastrophic injury

which, she asserts, made her eligible for the benefits in

question pursuant to Section 112.19(2)(h)1., Florida Statutes.

By letter dated May 19, 2003, Respondent denied Petitioner’s

clai m, contending that “the root cause and/or the major

contributing cause of [her] current disability” was a work -

related accident that occurred in September 1994 —— several months

too soon to serve as the basis for benefits under Section

112.19(2)(h)1.

Pe titioner timely requested a hearing, and on June 12,

2003, the matter was referred to the Division of Administrative

Hearings (“DOAH”). Thereafter, the undersigned scheduled a

final hearing for September 29, 2003.

At the final hearing, Petitioner te stified on her own

behalf and offered four exhibits, which were identified as

Petitioner’s Exhibits 1 through 4 and received in evidence.

Respondent offered the deposition testimony of Dr. Charles

Virgin (as Respondent’s Exhibit 1), two depositions of

Pet itioner (as Respondent’s Exhibits 2 and 3), and one other

document (as Respondent’s Exhibit 4). Each of these items was

admitted into evidence.

T he final hearing transcript was filed with DOAH on

October 13, 2003, and the parties timely filed their respective

Proposed Recommended Orders before the established deadline,

which was October 31, 2003.

Unless otherwise indicated, citations to sections within

Chapter 112 of the Florida Statutes refer to the 1997 Florida

Statutes, while citations to section s of Chapter 440 refer to

the 1995 Florida Statutes.

FINDINGS OF FACT

1. From 1982 through January 1999, Petitioner Sheila Kiess

(“Kiess”) was employed by Respondent Florida International

University (“FIU”) as a law enforcement officer.

2. On September 16, 1994, Kiess was injured at work in the

course of subduing a violent young man who managed, in the

struggle, to kick her right arm, causing severe pain. (This

event will be referred to hereafter as the “First Accident.”)

Kiess immediately reported to a clinic for medical attention,

following which she returned to duty and completed her shift.

3. Through workers’ compensation, Kiess received regular,

ongoing medical treatment for her injured right arm, which

continued to hurt and became even more pai nful as time passed.

She continued to work as well but was not able to use her right

arm. On December 17, 1994, Kiess’s doctor deemed her “unable to

work,” at which point she stopped working.

4. Kiess’s treating physician released her to return to

modi fied duty on January 4, 1995. Accordingly, on or about that

date, despite being still without the beneficial use of her

right arm, Kiess resumed her duties as Shift Supervisor on the

4:00 p.m. to midnight shift.

5. On January 24, 1995, while on duty, Kiess was called

upon to help restrain an unruly person. Her previously injured

right arm was twisted while wrestling with the combatant,

causing great pain. (This event will be referred to hereafter

as the “Second Accident.”)

6. After the Second Ac cident, Kiess received medical

treatment, again through workers’ compensation, at the same

clinic where she had been seen regularly for the preceding four

months as a result of the First Accident. She continued to

work, with limitations on the use of her right arm.

7. Some months later, Kiess came under the care of an

orthopedic surgeon named Dr. Charles Virgin, who first saw her

on June 12, 1995. Dr. Virgin determined that Kiess had

sustained damage to the tendons around her right elbow.

8. On April 23, 1996, Dr. Virgin operated on Kiess’s

elbow, surgically removing damaged tissue and repairing the

extensor tendon. At some point thereafter, Kiess returned to

work.

9. As Kiess healed from the surgery, the “old pain”

associated with the preoperativ e trauma to her right arm

gradually began to subside. In August 1996, however, Kiess

began to experience “new pain” that was the result of a

condition diagnosed as Reflex Sympathetic Dystrophy (“RSD”). 1

The RSD most likely was caused by the preoperative trauma, or by

the surgery, or by some combination thereof.

10. About one year later, Dr. Virgin determined that, as

of August 14, 1997, Kiess had reached maximum medical

improvement (“MMI”). 2 For workers’ compensation purposes, Dr.

Virgin assigned Kiess a permanent impairment rating of six

percent of the body as a whole.

11. Despite having achieved MMI, Kiess suffered —— and as of

the date of the final hearing continued to suffer —— constant,

crippling pain, muscle spasms, swelling, and other symptoms

caus ed by RSD. On July 27, 1998, Dr. Virgin wrote that Kiess

was “temporarily totally disabled and . . . unable to work as a

result of her employment injury.” After that, Kiess did not

regularly, if ever, resume her duties at FIU.

12. Effective January 21 , 1999, FIU terminated Kiess from

her employment as a police officer because her physical

limitations could not be reasonably accommodated.

13. FIU’s workers’ compensation carrier accepted Kiess as

permanently and totally disabled, effective November 26, 2001.

Ultimate Factual Determinations

14. The parties have stipulated and agreed, and

consequently the undersigned determines as an ultimate fact,

that Kiess has suffered a “catastrophic injury” as that term is

defined in Section 440.02, Florida Statute s.

15. There is likewise no dispute that both the First

Accident and the Second Accident occurred in the line of duty;

that each did so is, therefore, accepted and found as a matter

of ultimate fact. Further, it is undisputed, and hereby found,

that th e injuries Kiess suffered as a consequence of the

referenced accidents occurred as a result of her responses to

situations involving either an emergency or an unlawful act

perpetrated by another.

16. Finally, for reasons more fully explained below, it is

determined that Kiess, on or after January 1, 1995, suffered a

“catastrophic injury” in the line of duty.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sectio ns 120.569 and 120.57(1), Florida Statutes (2002).

18. The statutory provisions upon which Kiess bases her

claim for health insurance benefits were enacted in 1996 as part

of the Alu - O’Hara Public Safety Act (“Act”). See Ch. 96 - 198, §

3, at 650 - 51 Laws of Fla. (1996). Codified at Section

112.19(2)(h), Florida Statutes, the relevant provisions of the

Act provide in pertinent part:

1 . Any employer[ 3 ] who employs a full - time

law enforcement , correctional, or

correctional probation officer who, on or

after January 1, 1995, suffers a

catastrophic injury, as defined in s.

440.02(34), in the line of duty shall pay

the entire premium of the employer’s health

insurance plan for the injured employee, the

injured employee’s spouse, and for each

dependent child of the injured employee

until the child reaches the age of majority

or until the end of the calendar year in

which the child reaches the age of 25 if the

child continues to be dependent for support,

or the child is a full - time or part - time

student and is depe ndent for support. The

term “health insurance plan” does not

include supplemental benefits that are not

part of the basic group health insurance

plan. If the injured employee subsequently

dies, the employer shall continue to pay the

entire health insuran ce premium for the

surviving spouse until remarried, and for

the dependent children, under the conditions

outlined in this paragraph.

* * *

2. In order for the officer, spouse, and

dependent children to be eligible for such

insurance coverage, th e injury must have

occurred as the result of the officer's

response to fresh pursuit, the officer's

response to what is reasonably believed to

be an emergency, or an unlawful act

perpetrated by another. Except as otherwise

provided herein, nothing in this paragraph

shall be construed to limit health insurance

coverage for which the officer, spouse, or

dependent children may otherwise be

eligible, except that a person who qualifies

under this section shall not be eligible for

the health insurance subsidy pr ovided under

chapter 121, chapter 175, or chapter 185.

(Emphasis added.)

19. The ultimate dispute in this case is one of timing,

namely, whether Kiess , on or after January 1, 1995 , suffered a

work - related “catastrophic injury” as defined in Section

44 0.02(34). If the answer is “yes,” then, the parties agree,

Kiess is entitled to the benefits, and if “no,” she is not.

20. The parties generally agree that the date of Kiess’s

“catastrophic injury” must be either September 16, 1994 (the

First Accident) o r January 24, 1995 (the Second Accident). Each

party, in other words, implicitly accepts the notion that the

“catastrophic injury” occurred simultaneously with the causative

accident. Therefore, the parties, in their Pre - Hearing

Stipulation, framed the d ispositive issue as being which

“accident (9/16/94 vs. 1/24/95) . . . resulted in the permanent

impairment that led to the current disability.”

21. To sort out this dispute requires a careful

examination of the relevant definition of the term “catastroph ic

injury,” which is found in the Workers’ Compensation Law.

According to Section 440.02(37), Florida Statutes,

“ Catastrophic injury” means a permanent

impairment constituted by:

(a) Spinal cord injury involving severe

paralysis of an arm, a leg, or the trunk;

(b) Amputation of an arm, a hand, a foot,

or a leg involving the effective loss of use

of that appendage;

(c) Severe brain or closed - head injury as

evidenced by:

1. Severe sensory or motor disturbances;

2. Severe communication disturbances;

3. Severe complex integrated disturbances

of cerebral function;

4. Severe episodic neurological disorders;

or

5. Other severe brain and closed - head

injury conditions at least as severe in

nature as any condition provided in

subparagraphs 1. - 4;

(d) Second - degree or third - degree burns of

25 percent or more of the total body surface

or third - degree burns of 5 percent or more

to the face and hands;

(e) Total or industrial blindness; or

(f) Any other injury that would otherwise

qualify under this chapter of a nature and

severity that would qualify an employee to

receive disability income benefits under

Title II or supplemental security income

benefits under Title XVI of the federal

Social Security Act as the Social Security

Act existed on July 1, 1992, without regard

to any time limitations provided under that

act.[ 4 ]

(Emphasis added.)

22. The term “permanent impairment,” which is an integral

part of the definition of “catastrophic injury,” is itself a

term of art, being defined in Section 440.02(19), Florid a

Statutes, as follows:

“ Permanent impairment” means any anatomic or

functional abnormality or loss determined as

a percentage of the body as a whole,

existing after the date of maximum medical

improvement , which results from the injury .

(Emphasis added.)

23. The definition of “permanent impairment” incorporates

two more terms of art —— “date of maximum medical improvement” and

“injury” —— which are defined, respectively, as follows:

“ Date of maximum medical improvement” means

the date after which further re covery from,

or lasting improvement to, an injury or

disease can no longer reasonably be

anticipated, based upon reasonable medical

probability.

* * *

“ Injury” means personal injury or death by

accident arising out of and in the course of

employme nt ,[ 5 ]and such diseases or infection

as naturally or unavoidably result from such

injury. Damage to dentures, eyeglasses,

prosthetic devices, and artificial limbs may

be included in this definition only when the

damage is shown to be part of, or in

conjunc tion with, an accident. This damage

must specifically occur as the result of an

accident in the normal course of employment.

See § 440.02(8) and § 440.02(17), Fla. Stat. (emphasis added).

24. One other definition, finally, is useful in

understanding the terms under review:

“ Time of injury” means the time of the

occurrence of the accident resulting in the

injury.

See § 440.02(23).

25. As the above definitions make clear, the term

“catastrophic injury” does not refer, in this context, to the

bodily dama ge caused when the accident occurs; the separately

defined word “injury” covers that. Instead, “catastrophic

injury” refers to a condition that comes into being, if at all,

only later, at the end of the recovery process (“after the date

of maximum medical improvement”), once the “injury” has healed.

By definition, a “catastrophic injury” must follow the

“accident”/“injury” in terms of chronology; causally, it must

result from the “accident”/“injury”. In sum, a “catastrophic

injury” cannot happen at the m oment of the occurrence of the

“accident”/“injury.”

26. This means that in Section 112.19(2)(h)1., Florida

Statutes, the phrase “in the line of duty” was intended to

prescribe not when but how the “catastrophic injury” must have

happened; the connotation is necessarily causal because a

“catastrophic injury,” as relevantly defined, cannot occur “in

the line of duty” in the temporal sense of the latter phrase.

27. This understanding of Section 112.19(2)(h)1 is

reinforced by Section 112.19(2)(h)2, which add s that, for the

injured officer to be eligible for subsidized health insurance,

“ the injury must have occurred as the result of the officer’s

response to fresh pursuit, the officer’s response to what is

reasonably believed to be an emergency, or an unlawfu l act

perpetrated by another.” See § 112.19(2)(h)2., Fla. Stat.

(emphasis added). Effectively defining what is meant by “in the

line of duty,” 6 subpart 2 specifies what the officer must have

been doing when the “injury” occurred —— not , tellingly, when the

“catastrophic injury” became manifest. The statute’s use of the

word “injury” to refer to the harm occurring at the time of the

accident is consistent with the definitions in Section 440.02

and suggests that the legislature intended to maintain in

Sectio n 112.19(2)(h) the distinction between “injury” and

“catastrophic injury” that is drawn under the Workers’

Compensation Law.

28. In determining whether Kiess suffered a “catastrophic

injury” on or after January 1, 1995, then, it is not the date of

the causative accident that is relevant, as the parties have

supposed, but rather the date of the “ catastrophic injury .”

This conclusion obviates the need to ascertain the degree to

which each accident contributed causally to Kiess’s

“catastrophic injury,” si nce it is undisputed that the First

Accident and the Second Accident each occurred “in the line of

duty” as that phrase is used in Section 112.19(2)(h)1., Florida

Statutes.

29. Unlike “time of injury,” which is a defined term,

there is no statutory defin ition that fixes the date of a

“catastrophic injury.” However, because a “catastrophic injury”

entails a “permanent impairment,” see City of Pensacola

Firefighters v. Oswald , 710 So. 2d 95, 97 (Fla. 1st DCA 1998),

and because a “permanent impairment” ordi narily cannot be

determined until “after the date of maximum medical

improvement,” 7 the date of MMI in most cases should mark the

earliest emergence of a “catastrophic injury.” In this case, in

any event, because Kiess did not reach MMI until August 14,

1 997, at the earliest, and because, moreover, the evidence shows

overwhelmingly that Kiess had not fully recovered from the First

Accident as of January 1, 1995, it is easily concluded that

Kiess’s “catastrophic injury” occurred after January 1, 1995. 8

30 . Accordingly, Kiess is eligible to receive health

insurance premiums pursuant to Section 112.19(2)(h), Florida

Statutes.

31. As a final matter, in addition to contending that

Kiess should be deemed ineligible for the health insurance

benefits that she has claimed, FIU urges that Kiess be adjudged

in violation of Section 112.19(2)(h)1.b., Florida Statutes,

which makes it a first degree misdemeanor “to willfully and

knowingly make, or cause to be made, or to assist, conspire

with, or urge another to make, or cause to be made, any false,

fraudulent, or misleading oral or written statement to obtain

health insurance coverage as provided [hereunder].” The

statute, however, neither authorizes FIU to prosecute this crime

on behalf of the State of Florida nor g rants DOAH jurisdiction

to adjudicate such allegations of criminal misconduct.

Therefore, the question whether Kiess violated Section

112.19(2)(h)1.b will not be answered here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law , it is RECOMMENDED that Respondent FIU enter a final order

accepting Petitioner Kiess’s claim for health insurance benefits

pursuant to Section 112.19(2)(h)1., Florida Statutes.

DONE AND ENTERED this 17th day of November , 2003 , in

Ta llahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 27 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of November , 2003 .

ENDNOTES

1 / According to Dr. Virgin, whose testimony in this regard is

accepted as credible, RSD is “a disconnect in the

neurophysiologic sense between the stimulator and the perception

of that stimulator.” Thus, persons with RSD might experience

pain when tou ched, rather than the sensation of a touch. Heat

might feel cold to such persons, pressure might feel like a

pinprick, and a pinprick like pressure.

2 / There is a suggestion in the record that Kiess reached MMI in

January 1998. The undersigned has foun d that the earlier date

set forth in the text is more likely the correct one, but notes

that this discrepancy is immaterial.

3 / No issue was raised concerning FIU’s status as an “employer”

as that term is defined in Section 112.19(1)(a), Florida

Statutes .

4 / The parties agree that Kiess’s injuries fall within

subparagraph (f) of this definition.

5 / The terms “accident” and “arising out of and in the course of

employment” also have special meanings in the law of workers’

compensation, but, because it i s undisputed that each of the

accidents in question constituted an “accident arising out of

and in the course of employment,” a detailed examination of

these terms is unnecessary.

6 / The first sentence of Section 112.19(2)(h)2 is tantamount to

a narrow d efinition of “in the line of duty;” note that, for

present purposes, “in the line of duty” is not synonymous with

“on the job.”

7 / As explained in Oswald , a permanent impairment rating must be

assigned, for workers’ compensation purposes, before the dat e of

MMI in those cases where the claimant is not yet at MMI six

weeks prior to the expiration of temporary benefits, which are

payable for up to two years. Id . While interesting, however,

this particular nuance of the Workers’ Compensation Law is of no

moment here, for even if Kiess were deemed to have suffered a

“catastrophic injury” at the end of 98 weeks after the time of

injury, the operative date for purposes of Section 112.19(2)(h)

would be long after January 1, 1995, regardless which accident

were chosen as the starting point.

8 / Underscoring this conclusion is the fact that Kiess did not

begin to develop RSD until around August 1996. Before that

disabling condition arose, Kiess had been making good progress

towards recovery after the surgery in April 1996 on her damaged

right arm. Thus, as late as the summer of 1996, it would still

have been reasonable to assume that Kiess was not going to be

permanently impaired —— and hence was not going to suffer a

“catastrophic injury.”

COPIES FURNISHED :

James C. Casey, Esquire

Law Offices of Slesnick & Ca sey, LLP

2701 Ponce de Leon Boulevard, Suite 200

Coral Gables, Florida 33134

Peter A. Blanco, Esquire

Kubicki Draper, P.A.

25 West Flagler Street, Penthouse

Miami, Florida 33130

Modesto A. Maidique, President

Florida International University

Unive rsity Park Campus, PC 528

Miami, Florida 33199

Isis Carbajal de Garcia

Deputy General Counsel

Florida International University

University Park Campus, PC 528

11200 Southwest 8th Street

Miami, Florida 33199

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All pa rties 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.