06-003274 Douglas Ulmer, Jr., O/B/O Douglas Ulmer, Sr., Deceased vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Monday, January 29, 2007.

Summary: Respondent correctly presumed that Petitioner`s father was "killed in the line of duty," entitling the spouse of Petitioner`s father to receive "in line of duty" benefits during her lifetime, and excluding the children, whom he named as beneficiaries.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS ULMER, JR., o/b/o )

DOUGLAS ULMER, SR., DECEASED, )

)

Petitioner, )

) Case No. 06 - 3274

and )

)

KAYLA ULMER, )

)

Intervenor, )

)

vs. )

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

November 27, 2006, at sites in Tall ahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Edwin Ferguson, Esquire

41 West 27th Street

Riviera Beach, Florida 33404

For Intervenor: Jeffrey Clements, Esquire

33 East Camino Real, Suite 811

Boca Raton, Florida 33 432

For Respondent: Elizabeth Regina Stevens, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32327

STATEMENT OF THE ISSUE

The issue in this case is whether Resp ondent wrongly

presumed that Petitioner's father had been "killed in the line

of duty," which presumption entitled the surviving spouse of

Petitioner's father to receive "in line of duty" death benefits

during her lifetime, to the exclusion of the rights o f her late

husband's children, whom he had named as his primary

beneficiaries.

PRELIMINARY STATEMENT

After her husband, Douglas Ulmer, Sr., died of heart

failure on December 14, 2005, Cynthia Andrews - Ulmer applied for

"in line of duty" death benefits un der the Florida Retirement

System. In or around July 2006, Respondent Department of

Management Services, Division of Retirement, granted Mrs.

Ulmer's request, announcing that it intended to pay her, as the

surviving spouse of a member "killed in the line of duty," the

benefits she had sought.

The agency's preliminary decision adversely affected Mr.

Ulmer's two children, whom he had designated as his primary

beneficiaries, because their rights as such would be superseded

by the award of "in line of duty" death benefits to Mrs. Ulmer,

who is not the mother of either. Consequently, Mr. Ulmer's

minor son, Petitioner Douglas Ulmer, Jr., timely requested a

hearing to contest the award of benefits to Mrs. Ulmer.

Thereafter, Respondent referred the matter to t he Division of

Administrative Hearings, where the case was assigned to an

Administrative Law Judge, who scheduled a final hearing for

October 10, 2006. The final hearing was later continued, on

Petitioner's motion, to November 27, 2006.

The final he aring c ommenced on the appointed date. Both

parties appeared, and each was represented by counsel.

Additionally, at the outset of the hearing, Petitioner's older

sister, Kayla Ulmer, asked to intervene in the proceeding, on

the side of Petitioner. Her re quest was granted. She, too, was

represented by counsel.

Petitioner and Intervenor presented three witnesses: Lilly

Hill - Jones, mother of Petitioner; Claudia Jones, mother of

Intervenor; and Intervenor. Petitioner offered one exhibit,

which was rec eived in evidence without objection. Respondent

presented the testimony of its Benefits Administrator, Ms.

Stanley Colvin, and moved Respondent's Exhibits 1 through 3 into

evidence, each without objection.

Neither party ordered the final hearing tran script. The

parties timely filed their respective proposed recommended

orders by the established deadline, which was January 17, 2007.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 200 6 Florida Statutes.

FINDINGS OF FACT

1. On December 14, 2005, Douglas Ulmer, Sr. ("Mr. Ulmer"),

died as a result of complications from coronary artery disease

and hypertension. At the time of his death, Mr. Ulmer was

married to Cynthia Andrews - Ulmer ("Mrs. Ulmer"). His other

survivors inc luded two children: a son named Douglas Ulmer, Jr.

("Douglas"), who had been born on July 13, 1991; and a daughter

named Kayla Ulmer ("Kayla"), who had been born on October 3,

1983. Mrs. Ulmer was not the mother of either Douglas or Kayla.

2. From Febr uary 1993 until his death, Mr. Ulmer had been

employed as a fireman in Palm Beach County, Florida. Through

that employment, be had become a member of the Florida

Retirement System ("FRS"), which is administered by Respondent

Department of Management Servi ces, Division of Retirement

("Division").

3. After having been offered the job as a fireman, Mr.

Ulmer had undergone a "post - offer physical" examination. This

examination, which had taken place on January 15, 1993, had

revealed no evidence of any medic al abnormalities; specifically,

the physician had found Mr. Ulmer's "heart and vascular system"

to be "normal."

4. In October 2004, Mr. Ulmer had experienced chest pain

while lifting equipment at work and been taken to the hospital.

Thereafter, diagnose d as having heart disease, Mr. Ulmer had

gone on disability and never returned to work full time.

5. About one month before his death, Mr. Ulmer had

completed a Pension Plan Beneficiary Designation Form in which

he had named Douglas and Kayla as his p rimary beneficiaries for

retirement benefits payable under the FRS.

6. After Mr. Ulmer passed away, Mrs. Ulmer submitted an

application to the Division for "in line of duty" death

benefits, which are available under the FRS to the surviving

spouse of a m ember "killed in the line of duty." In July 2006,

the Division gave notice that it intended to approve Mrs.

Ulmer's application.

7. For reasons that will soon be made clear, the

Division's intended decision deprived Kayla of any benefits

under the FRS, and it threatened to deny benefits to Douglas,

even though the children's father had named them as his primary

beneficiaries. Consequently, Douglas timely requested a hearing

to contest the payment of "in line of duty" benefits to his

father's widow. (Ka yla would later intervene in this

proceeding, on the eve of the final hearing.)

8. Sadly, Mrs. Ulmer died suddenly on September 24, 2006,

before the dispute over Mr. Ulmer's retirement benefits could be

resolved.

CONCLUSIONS OF LAW

9. T he Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

S ections 120.569 and 120.57(1), Florida Statutes.

10. Section 121.091(7), Florida Statutes, prescribes the

death benefits payable under the FRS. In p ertinent part, this

statute provides:

(d) Notwithstanding any other provision in

this chapter to the contrary, with the

exception of the Deferred Retirement Option

Program, as provided in subsection (13):

1. The surviving spouse of any member

killed in the line of duty may receive a

monthly pension equal to one - half of the

monthly salary being received by the member

at the time of death for the rest of the

surviving spouse's lifetime or, if the

member was vested, such surviving spouse may

elect to receiv e a benefit as provided in

paragraph (b). Benefits provided by this

paragraph shall supersede any other

distribution that may have been provided by

the member's designation of beneficiary.

2. If the surviving spouse of a member

killed in the line of dut y dies, the monthly

payments which would have been payable to

such surviving spouse had such surviving

spouse lived shall be paid for the use and

benefit of such member's child or children

under 18 years of age and unmarried until

the 18th birthday of th e member's youngest

child .

(Emphasis added).

11. The term "death in line of duty" is defined in Section

121.021(14), Florida Statutes, as meaning:

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.

Thus, for "in line of duty" death benefits to be payable, the

deceased member must have died on the job, while actually

performing a required duty; and the agency or ins trumentality of

death —— the thing that killed the member —— must have been causally

connected to the performance of a required duty. In practical,

succinct terms, actual performance of the job must have put the

decedent in harm's way. See Kugler v. Departme nt of Management

Services , DOAH Case No. 02 - 2578 (Recommended Order Jan. 21,

2003) (Final Order April 4, 2003).

12. Based solely on this definition, Mrs. Ulmer probably

would not have been entitled to "in line of duty" death

benefits, because Mr. Ulmer d id not die on the job, while

actually performing a required duty. There exists, however, a

statutory presumption, which is implicated when a fireman or law

enforcement officer is stricken by certain cardiopulmonary

diseases, that assisted Mrs. Ulmer in es tablishing her claim.

Sometimes called the "heart - lung" statute, Section 112.18(1)

provides as follows:

Any condition or impairment of health of any

Florida state, municipal, county, port

authority, special tax district, or fire

control district firefigh ter or any law

enforcement officer or correctional officer

as defined in s. 943.10(1), (2), or (3)

caused by tuberculosis, heart disease, or

hypertension resulting in total or partial

disability or death shall be presumed to

have been accidental and to hav e been

suffered in the line of duty unless the

contrary be shown by competent evidence.

However, any such firefighter or law

enforcement officer shall have successfully

passed a physical examination upon entering

into any such service as a firefighter or

law enforcement officer, which examination

failed to reveal any evidence of any such

condition. Such presumption shall not apply

to benefits payable under or granted in a

policy of life insurance or disability

insurance, unless the insurer and insured

hav e negotiated for such additional benefits

to be included in the policy contract.

13. Pursuant to the heart - lung statute, if the proximate

cause of a fireman's death was a fatal condition ( e.g. heart

attack or stroke) that was caused in fact by a particu lar

pulmonary or cardiovascular disease, then it shall be presumed

that the fatal condition was suffered in the line of duty,

absent "competent evidence" to the contrary.

14. This presumption, clearly, is rebuttable. See

Caldwell v. Division of Retire ment, Florida Dept. of

Administration , 372 So. 2d 438, 441 (Fla. 1979). The party

attempting to defeat it, however, must "show that the disease

causing disability or death was caused by a specific, non - work

related event or exposure." Id. In addition,

[w]here the evidence is conflicting, the

quantum of proof is balanced and the

presumption should prevail. This does not

foreclose [a party] from overcoming the

presumption. However, if there is evidence

supporting the presumption[, it can] only

[be overc ome] by clear and convincing

evidence . In the absence of cogent proof to

the contrary the public policy in favor of

job relatedness must be given effect.

Id. (emphasis added.)

15. In Caldwell , a county fireman who was unable to work

following an on - th e - job heart attack sought "in line of duty"

disability benefits. He lost at the trial level and in the

district court, the First DCA holding that though the medical

testimony was conflicting, there was substantial competent

evidence to support a finding t hat the fireman's heart attack

had been caused by a preexisting condition (arteriosclerosis)

unrelated to the performance of his job. Id. at 440. In

reversing, the Florida Supreme Court explained that the

presumption "supplie[d] the element of service - co nnection"

linking the arteriosclerosis and the fireman ' s duties, id. , and

ruled that the agency had failed to prove otherwise by clear and

convincing evidence.

16. Here, the parties have stipulated that the "immediate

cause[s]" of Mr. Ulmer's death were c oronary artery disease and

hypertension. Based on this stipulation, the undersigned is

required to (and does) presume that Mr. Ulmer experienced a

fatal medical condition, and died therefrom, in the line of

duty. 1

17. Douglas and Kayla argue that their father suffered

from high blood pressure before becoming a fireman and that he

had a congenital heart murmur as well. The evidence offered in

support of these contentions, however, such as it is, falls far

short of establishing, clearly and convincingly, that either Mr.

Ulmer's heart disease and hypertension or his death was caused

by a specific, non - work related event or exposure.

18. It is concluded, therefore, that Section 112.18(1),

Florida Statutes, dictates a finding that Mr. Ulmer's death

occurre d in the line of duty. That being the case, it is

further concluded that Mrs. Ulmer, as the surviving spouse of a

member "killed in the line of duty," was entitled to receive,

during her lifetime, "in line of duty" death benefits.

19. Because "in line o f duty" death benefits supersede any

other distribution that otherwise would have been made, Douglas

and Kayla —— who, as Mr. Ulmer's primary beneficiaries, would have

received normal retirement benefits until each, respectively,

reached the age of 25, had M r. Ulmer not died in the line of

duty, see § 121.091(12), Florida Statutes —— lost their rights to

receive any benefits, at least during Mrs. Ulmer's lifetime.

Kayla, already being more than 18 years old when her father

died, was ineligible ever to receive benefits.

20. Douglas, however, became eligible to receive "in line

of duty" death benefits upon the passing of his father's widow,

because he was an unmarried minor at the time. Such benefits

must be paid for Douglas's use and benefit until he turns 18 or

gets married, whichever first occurs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a final order:

(a) finding that Mr. Ulmer died in the line of duty; (b)

awarding Mrs. Ulmer 's estate the benefits to which Mrs. Ulmer,

as the surviving spouse of a member killed in the line of duty,

was entitled under Section 121.091(7)(d)1., Florida Statutes;

and (c) providing for the payment of benefits to Douglas Ulmer,

Jr., in accordance wit h Section 121.091(7)(d)2.

DONE AND ENTERED this 29th day of January, 2007 in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 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 29th day of January, 2007.

END N OTE

1 / It is possible to interpret the heart - lung statute as having

no effect on the requirement under § 121.021(1 4), Fla. Stat.,

that, to occur in the line of duty, death must happen on the

job, while actually working. Under this construction, the

presumption would be available to help prove the requisite

causal connection between work, on the one hand, and death on

the other (the latter must "aris[e] out of" the former), but it

would be of no help in establishing that death came during

"working hours" while performing a required duty. Thus, if a

fireman suffered a heart attack and died during working hours

while do ing required paperwork at the fire station, then his

death would be presumed to have occurred in the line of duty,

even if the heart attack were caused by hypertension and not,

for example, by smoke inhalation. But if instead this fireman

happened to die of a heart attack at home in bed, then (under

the statutory interpretation now being discussed) the

presumption ultimately would not be dispositive, because the

temporal element of § 112.021(14) (death during working hours ,

while working ) would not, in fac t, have been met. (Indeed, the

presumption would be unavailing even if, though the heart attack

occurred at work, death came after hours, in the hospital say,

for in that event also, the element of death during working

hours would not be satisfied.)

The Division, however, does not construe the statute so

narrowly, but rather equates fatal "condition or impairment"

with death, so that, even if the two did not occur

simultaneously, as here, and even if neither actually occurred

at work, as here also, it mus t still be presumed that the death

occurred in the line of duty. In other words, as the Division

interprets § 112.18(1), Fla. Stat., if the fatal condition ( e.g.

heart attack) was caused by tuberculosis, heart disease, or

hypertension, then the resulting death must be presumed to have

occurred in the line of duty, regardless of when either the

heart attack or death actually occurred.

The Division's interpretation of § 112.18(1) is at least

reasonable , and it favors the persons whom the statute is

designed to protect. Having no compelling reason to reject this

construction placed upon the statute by the agency charged with

its administration , the undersigned has concluded that the fact

Mr. Ulmer did not happen to die while actually on the job is not

a barr ier to applying the statutory presumption.

COPIES FURN ISHED :

Edwin Ferguson, Esquire

41 West 27th Street

Riviera Beach, Florida 33404

Jeffrey Clements, Esquire

33 East Camino Real, Suite 811

Boca Raton, Florida 33432

Elizabeth Regina Stevens, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32327

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

John Brenneis , General Counsel

Division of Retirem ent

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

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 exceptio ns

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.