06-004028 Escambia County School Board vs. Jackie Fowler Status: Closed Recommended Order on Friday, June 8, 2007.

Summary: The evidence did not show that Respondent filed a fraudulent workers` compensation claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 06 - 4028

)

JACKIE FOWLER , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing w as conducted in this case on March 8,

2007, in Pensacola, Florida, before Diane Cleavinger,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons, L ongoria and Whittaker, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

For Respondent: H. B. Stivers, Esquire

Levine and Stivers

245 East Virginia S treet

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent 's termination

should be upheld.

PRELIMINARY STATEMENT

By letter dated September 14, 2006, the Superintendent of

Sch ools for Escambia County, Florida, notified Respondent,

Jackie Fowler , of his recommendation to Petitioner, Escambia

County School Board, that Respondent be terminated for

misconduct involving her alleged fraudulent workers ’

compensation claim . The Board followed the recommendation of

the Superintendent , and during its meeting on September 19,

2006, terminated Respondent effective September 20, 2006.

Respondent timely requested a formal hearing. The matter was

referred to the Division of Administrative H earings.

At the hearing, Petitioner called four witnesses and

offered eight exhibits into evidence. Respondent testified in

her own behalf and called two witnesses. The parties offered

the deposition testimony of Dr. George Corbett as a joint

exhibi t. Respondent offered one composite exhibit , which was

entered into evidence.

After the hearing, Petitioner filed a Proposed Recommended

Order on April 16, 2007. Respondent filed her Proposed

Recommended Order on April 18, 2007.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent

was employed as a Bus Driver and/or Bus Aide for the Escambia

School District.

2. As a school bus operator R espondent work ed

approximately seven hours per day , including about three to four

h ours driving a large school bus. The school buses that

Respondent drove had automatic transmissions and push - button

doors. However, they did require more effort to drive than

either a small school bus or a regular passenger vehicle.

3. Prior to Sep tember 2005, Respondent had experienced

chronic foot pa i n in the ball and on the top of her foot. The

pain was not enough for her to seek medical treatment and she

was able to perform her job duties.

4. In early September 2005, Respondent broke the third toe

on her right foot in an ac cident unrelated to her employment .

5. On September 9, 2005, a pproximately one week after

breaking her toe Respondent sought treatment for her toe at an

Urgent Care facility in Pensacola, Florida. The Urgent Care

Center X - rayed her foot and diagnosed a broken toe and taped her

toes together.

6. About a month later, on October 13, 2005, Respondent

sought treatment for right foot pain from Dr. Mark Lambert of

the Pensacola Foot and Ankle Center. This pain wa s in the ball

of her right foot. Respondent did not associate the foot pain

with her previously broken toe because the pain was not

associated with her toe and she had experienced the pain prior

to breaking her toe. However, the pain in her foot was worse.

7. Dr. Lambert’s notes state that Respondent “stumped toe”

about 3 - 4 weeks ago. The notes f urther s tate that Respondent

was diagnosed by the Urgent Care Facility to have fractured the

third toe of her right foot. Her toes were still taped together

at the time of her visit with Dr. Lambert. She also reported to

Dr. Lambert she had worked a week before she was seen for the

injury to her right toe and that she drove a school bus. She

reported that it hurt her to drive the bus. Dr. Lambert’s

assessm ent was "trauma/Joint Arthralgia/Bursitis/Neuroma . ” Dr.

Lambert wrote a note requ esting that Respondent be released from

work for one week because of foot pain. Dr Lambert's office

also gave Respondent a pamphlet discussing foot pain and its

possible cau ses. One of the potential causes for such pain was

repetitive stress to the foot due to driving.

8. Dr. Lambert saw Respondent again on October 25, 2005,

for treatment under the same diagnosis and again on January 30,

2006. After the January visi t Dr. Lambert declined to give

Respondent a release from work.

9 . O n January 31, 2006 , Respondent saw Dr. Brown , her

prima ry treating physician , for the pain in her foot . Dr. Brown

gave her a release from work.

10. From October through January , Respondent was able to

intermittently return to work. However, she did miss some work

due to foot pain.

11. Respondent discussed her foot problems and pain with

her supervisors, a lthough she was not detailed in those

discussions. Respondent felt she could not continue to drive

and wanted to transfer to another position.

12. At some point because of continued foot pain

Respondent, scheduled an appointment for February 8, 2006, with

a Dr. Corbett, an orthopedic physician , in Daphne, Georgia. She

learned of Dr. Corbett from a relative.

13 . On February 7, 2006, Ms. Fowler met with Jerry

Caine, the Manager of Educational Support Personnel, to discuss

potential jobs that she might be able to perform with her

medical condition. Potential jobs discussed w ere a Bus Aide,

which, at the time, had no openings and a teacher’s assistant

for which there were openings at Escambia Westgate Center, a

special education center with a large population of profoundly

handicapped children.

14 . During the discussion Respondent mentioned that she

thought her foot pain was due to driving a bus for many years.

Mr. Caine advised Respondent that if “she felt” that her medical

problems were job related that she should file a workers’

compensation claim .

15 . Ms. Fowler informed Mr. Caine that she did not want to

file a workers’ compensation claim , but wanted to transfer to a

different position .

16 . Also, on February 7, 2006, after meeting with

Mr. C aine, Respondent went to Dr. Lambert’s office to pick up

X - rays to take with her to Dr. Corbett. On February 8, 2006,

she also requested that the office fax her records to

Dr. Corbett’s office.

17. Sometime after meeting with Mr. Caine, Respondent met

with Susan Berry, the principal at the Escamb ia Westgate Center ,

to discuss the teacher’s aide position. They discussed the job

duties and responsibilities, the physical requirements and

Respondent’s medical condition.

18. Ms. Berry also advised Respondent that if she felt her

medical problems were job related that she should file a

workers’ compensation claim.

19. Respondent did not take the position at the Escambia

Westgate Center. She did not feel that she could do the work

because of her foot problems.

20 . On February 8, 2006, a t Dr. Corbett’s office ,

Respondent filled out the New Patient Information Sheet and the

Medical History Questionnaire. The questionnaire asked what

part of the body was to be checked . Respondent indicated the

right foot. The questionnaire then asked if the condition was

the result of an injury and Respondent checked “No . ” The

history reported by Dr. Corbett was that of a 49 - year - old female

with right foot pain with “no known trauma for the past seven to

eight months . ” Respondent did not indicate on th e initial

paperwork that she was seeking treatment for her earlier broken

toe since the pain she had in her foot was in the ball of her

foot. S he had not in ju red the ball of her foot. Her toe did

not hurt.

21 . During the initial visit, Respondent also completed an

authorization for Dr. Corbett to obtain Dr. Lambert’s medical

records that contain ed his treatment and diagnosis of

Respondent 's condition and also contained her treatment and

diagnosis by the Sacred Heart Urgent Care Facility. The medi cal

release was im mediately faxed to Dr. Lambert whose office faxed

the records that day and again on February 13 and 16, 2006, to

Dr. Corbett's office.

22 . Respondent advised Dr. Corbett of her previous broken

toe and treatment with Dr. Lambert. In deed, the fact that she

had had previous injuries to her toes was apparent from the

crooked appearance of her toes , the X - rays she had brought with

her to Dr. Corbett's office and the X - rays taken by Dr. Corbett .

Clearly, some mention of Dr. Lambert's tre atment was made since

Dr. Corbett's office requested Respondent 's records from

Dr. Lambert. The evidence did not show that Respondent withheld

any information from Dr. Corbett in an attempt to gain a work -

related diagnosis. Dr. Corbett did not review Res pondent’s

medical records until October of 2006. Dr. Corbett testified

that the information regarding Ms. Fowler’s broken toe was not

material to his treatment of her foot pain.

23 . During the months of February and March 2006,

Ms. Fowler was someti mes able to drive the bus. She missed

several days of work due to her foot pain.

24 . On March 9, 2006, about six months after she broke her

toe, Respondent discussed the filing of a workers’ compensation

claim with Jean Bradish , a workers’ compensat ion claim s adjuster

for the District . Respondent told Ms. Bradish that she wanted

to file a workers’ compensation claim , mentioning she might need

surgery on her foot . Respondent handed Ms. Bradish a

prescription pad note , dated March 8, 2006, from Dr. C orbett .

The note stated:

To Whom It May Concern

I am the treating physician for Jackie

Fowler. Ms. Fowler has fairly marked right -

sided foot pain that I have been treating

since February 8, 2006. She said prior to

my evaluation that she has been hav ing pain

for the previous seven to eight months. I

understand that she is now trying to file a

Workers’ Compensation claim stating that the

symptoms were brought on by her occupational

requirements as a school bus driver. I

would just like to add that sh e has

consistently indicated that school bus

driving requirements mad e her symptoms

worse. She denies any other history or any

type of trauma that caused these symptoms

and thus far is failing to respond to

conservative care.

25. Ms. Bradish was concern ed about the note because it

indicated that Respondent felt th e pain was related to her work

as distinguished from the doctor ’s offering his opinion that the

condition was work related. Because the claim had not been

officially filed, Ms. Brad ish did no t have Respondent sign a

w orker's compensation fraud statement, nor did she discuss th e

statement with Ms. Fowler. Ms. Bradish did not inquire as to

Ms. Fowler’s medical history or as to her treating physicians.

26 . Ms. Bradish again advis ed Respondent that if she felt

that her medical condition was job related to file a workers’

compensation claim a nd that a claim must first be reported to

Corvel, the District’s reporting agency. Ms. Fowler signed a

medical authorization form which permit ted Ms. Bradish to obtain

her medical records.

27 . On March 9, 2006, Respondent contacted Corvel and

filed a workers’ compensati on claim for right foot pain. A s the

cause of the condition , she indicated that it was caused by 20

years of driving a bu s. The claim lists D r. Corbett as the

d octor treating her foot pain. The form does not inquire as to

medical history or ask a claimant to provide the names of other

treating physicians.

28 . Ms. Bradish obtained Respondent 's medical records from

Dr. Bradish, Dr. Lambert, Sacred Heart Urgent Care and

Dr. Corbett. Per her claim adjustment duties, Ms. Bradish

obtained these records to make a determination whether

Respondent 's reported foot pain was a covered condition or

injury under the Workers’ Compe nsation Act or, alternatively, a

non - covered, non - work related condition or injury. Also,

pursuant to her job duties, Ms. Bradish completed a workers’

compensation required form known as the “First Report of In j ury”

that included Respondent’s description of her work

injury/condition. In the report Ms. Bradish stated :

Progressive injury. She states she is

having foot surgery on April 4, 2006, by

Dr. George Corbett. Has had 20 years of

damages to right foot from pushing gas

pedal. Pain on top of foot and the ball of

the foot.

29 . On March 10, 2006, Respondent took a voluntary

demotion to a Teacher Assistant Special Bus Aide which resulted

in a three pay grade decrease. Her reason for taking the

demotion was because of her right foot pain an d her inability to

continue to regularly drive a bus. The demotion was unrelated

to the filing of her workers’ compensation claim.

30 . On or about March 20, 2006, the District denied

Respondent’s workers’ compensation claim.

31 . Respondent did not file a petition to contest the

denial of her claim for workers’ compensation benefits or

otherwise pursue additional benefits. As far as she was

concerned, the denial was the end of her claim. She continued

to be treated for her foot pain.

32 . Respondent also continued her employment as a bus aide

for the remainder of the school year without incident.

33 . On or about July 28, 2006, Respondent was notified of

a disciplinary conference based on the allegations that she

filed a fraudulent wo rkers’ compensation claim.

34 . At the conference, Respondent tried to explain that

she felt the condition was job related and that she notified

Dr. Corbett of the prior injury. She further indicated that she

did not seek treatment from either Dr. Co rb ett or Dr. Lambert,

for her broken toe, but for right foot pain to the “ball” of her

foot. Her explanations were either not u nderstood or not

accepted and, by letter dated September 14, 2006, she was

advis ed that she was being recommended for terminatio n based on

the “falsification and misrepresentation of medical conditions

to unlawfully obtain workers’ compensation benefits . ” The

letter stated:

(1) You claimed an on - the - job injury to

your right foot through repetitive use while

operating a school bus and willfully

declined to disclose to treating physicians

and others as appropriate a non - work related

foot injury.

(2) You sought treatment for a condition

claiming it was a work injury when you knew

it was not.

35. However, the evidence dem onstrates that Respondent had

a genuine belief that her foot pain was not caused by the toe

she broke in September, 2005. The pain was not in her toes, but

another part of her foot and she had experienced the pain prior

to her injury in September, 2005. She did feel that her broken

toe may have made the pain worse as indicated by Dr. Corbett's

note. Indeed, Dr. Corbett testified in his deposition that

Respondent’s pain and discomfort would not be associated with

“micro - trauma” or a single impact trauma, but that it was from

repetitive small traumas. He stated that there was no

definitive association between the “stubbed toe” injury and the

pain Respondent was experiencing. Given this genuine belief and

Dr. Corbett's testimony, the evidence does not demo nstrate that

Respondent intentionally filed a fraudulent workers compensation

claim or failed to disclose any treatment or injury to

Dr. Corbett. Therefore , Respondent 's termination cannot be

sustained.

C ONCLUSIONS OF LAW

36 . The Division of Admini strative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding . § 120.57(1), Fla. Stat.

37 . A district school board employee against whom a

dismissal proceeding has been initiated must be given written

notice of the specific charges prior to the Section 120.57(1)

hearing. Although the notice “need not be se t forth with the

technical nicety or formal exactness required of pleadings in

court , it should specify the [statute] rule [, regulation,

policy, or collective ba rgaining provision] the [district school

board] alleges has been violated and the conduct which

occasioned [said] violation”. School Board of Dade County v.

Jones , DOAH Case No. 96 - 5169 citing Jacker v. School Board of

Dade County , 426 So. 2d 1149, 1151 ( F la. 3d DCA 1983)(concurring

opinion of Judge Jorgenson).

38 . Pursuant to Section 1012.40(2)(b), Florida Statutes,

an educational support employee may only be terminated for

“reasons stated in the collective bargaining agreement, or in

district schoo l board rule in cases where a collective

bargaining agreement does not exist. . .” .

39 . The Collective Bargaining Agreement between the School

District of Escambia County and The Union of Escambia Education

Staff Professionals provided that all “disc ipline shall be

progressive, fair and only for just cause.” § IX.2(B), Master

Contract between The School District of Escambia County and The

Union of Escambia Education Staff Professionals , FEA NEAS AFT

(July 1, 2005 through June 30, 2008). However , the Agreement

fails to define what constitutes “just cause.”

40 . Section 1012.40, Florida Statutes, which deals with

Education Support Employees does not define “just cause.”

41 . The September 14, 2006, Notice of Recommendation

letter constitute s the notice of the charges to Respondent. The

letter does not set forth the specific state statute, rule,

regulation, policy or collective bargaining provision that the

School District believes has been violated.

42 . The basis for the proposed ac tion against Respondent

in the September 14, 2006, letter is the assertion of the

“falsification and misrepresentation of medical conditions to

unlawfully obtain workers’ compensation benefits.” This

assertion necessarily implies the statutes that establi sh

workers ’ compensation in Florida.

43 . Section 440.09(4), Florida Statutes, punishes workers’

compensation claimants by denying benefits to which they might

otherwise have been entitled, if a claimant, in seeking

benefits, knowing or intentionally engaged in any of the acts

described in Section 440.105, Florida Statutes.

44 . Section 440.105(40(b), Florida Statutes , provides that

it shall be unlawful for any person:

1. To knowingly make, or cause to be made,

any false, fraudulent, or misleadi ng oral or

written statement for the purpose of

obtaining or denying any benefit or payment

under this chapter.

2. To present or cause to be presented any

written or oral statement as part of, or in

support of, a claim for payment or other

benefit purs uant to any provision of this

chapter, knowing that such statement

contains any false, incomplete, or

misleading information concerning any fact

or thing material to such claim.

3. To prepare or cause to be prepared any

written or oral statement that i s intended

to be presented to any employer, insurance

company, or self - insured program in

connection with, or in support of, any claim

for payment or other benefit pursuant to any

provision of this chapter, knowing that such

statement contains any false, i ncomplete, or

misleading information concerning any fact

or thing material to such claim.

45 . In order for there to be a violation that would bar a

claimant from receiving workers’ compensation benefits, the

District must prove that Respondent mad e a written or oral

statement that (1) was knowingly or intentionally false,

incomplete, or misleading; (2) concerned material facts; and (3)

w as made for the purpose of obtaining benefits arisi ng out of an

accident. Chapman v. NationsBank , 872 So. 2d 390 (Fla. 1st DCA

2004); Lee v. Volusia County School Board , 890 So. 2d 397 (Fla.

1st DCA 2004); Citrus Pest Control and Claims Control, Inc. v.

Brown , 913 So. 2d 754 (Fla. 1st DCA 2005); Pinnacle Benefits,

Inc. v. Alby , 913 So. 2d 756 (Fla. 1st DCA 2005).

46 . In this case, the Petitioner has failed to meet its

burden of proof. The allegedly false and/or incomplete

statements relied upon by Petitioner concerns whether or not

Respondent disclo sed her broken toe to Dr. Corbett.

Dr. Corbett’s history does not directly reflect that he was told

about the trauma, but the injur y was viewable on the X - ray s

taken by Respondent to Dr. Corbett, as well as on the X - ray s

taken by Dr. Corbett. In addition, Respondent clearly

authorized Dr. Corbett’s office to obtain her prior records from

Dr. Lambert , which included this trauma. She did not attempt to

hide the injury from Dr. Corbett and credibly testified that she

told him about it. However, e ven assuming that Respondent did

not disclose the broken toe to Dr. Corb ett, Dr. Corbett

testified via his deposition that this was not material to his

overall treatment , and given the records he had at his disposal

does not demonstrate an intent to falsify or deceive Dr. Corbett

in order to obtain workers ’ compensation benefi ts .

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is Recommended that a Final Order be entered reinstating

Respondent to her position of employment and awarding her full

back pay and benefits.

D ONE AND ENTERED this 8 th day of June , 2007 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 8 th day of June , 2007 .

COPIES FURNISHED :

Jim Paul, Superintendent

Escambia County School District

215 West Garden Street

Pensacola, Florida 32502

Ellen Odom, General Counsel

Escambia County School District

215 West Garden Street

Pensacola, Florida 32502

Joseph L. Hammons, Esquire

Hammons, Longoria and Whittaker, P.A.

17 West Cervantes Street

Pensacola, Flor ida 32501 - 3125

H. B. Stivers, Esquire

Levine & Stivers

245 East Virginia Street

Tallahassee, Florida 32301

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.