08-003690 Henry T. Swann, Iii vs. Department Of Management Services, Division Of State Group Insurance Status: Closed Recommended Order on Thursday, November 13, 2008.

Summary: Petitioner is not eligible for benefits under the State Group Disability Income Self-insurance Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY T. SWANN, III, )

)

Petitioner, )

)

vs. ) Case No. 08-3690

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF STATE )

GROUP INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on October 15,

2008, in St. Augustine, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Dennis R. Schutt, Esquire

Michael J. Childers, Esquire

Schutt, Schmidt and Noey

2700-C University Boulevard, West

Jacksonville, Florida 32217

For Respondent: Sonja P. Mathews, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue is whether Petitioner is eligible to receive disability income payments under the State Group Disability Income Self-insurance Plan (DISP).

PRELIMINARY STATEMENT

By letter dated July 1, 2008, Respondent Department of

Management Services, Division of State Group Insurance

(Respondent) advised Petitioner Henry T. Swann, III,

(Petitioner) that his claim for DISP payments was denied because

he was no longer a state employee.

On July 14, 2008, Petitioner filed a Petition for

Evidentiary Proceeding. On July 28, 2008, Respondent referred

the petition to the Division of Administrative Hearings.

A Notice of Hearing dated August 11, 2008, scheduled the

hearing for October 15, 2008.

During the hearing, Petitioner testified on his own behalf.

Petitioner offered three exhibits that were admitted as

evidence. Respondent presented the testimony of five witnesses

and offered four exhibits that were admitted as evidence.

The parties did not file a transcript of the proceeding.

On October 23, 2008, Petitioner filed Factual Findings,

Conclusions of Law, and Recommendations.

On October 24, 2008, Respondent filed an unopposed Motion

to Extend Time for Filing of Proposed Recommended Orders. On

October 27, 2008, the undersigned issued an Order Granting

Extension of Time.

On November 3, 2008, Respondent filed a Proposed

Recommended Order.

FINDINGS OF FACT

1. On or about February 1, 2005, James S. Purdy, Public

Defender for the Seventh Judicial Circuit, State of Florida,

hired Petitioner as a "part-time" appellate attorney.

Petitioner's duties included representing indigent criminal

defendants on appeal.

2. As a "part-time" attorney, Petitioner worked the same

number of hours as full-time attorneys. His workload was

equivalent to the workload carried by all part-time and full-

time appellate attorneys. However, except to attend weekly

staff meetings, Petitioner did not perform his duties at the

Public Defender's Office. Petitioner and other "part-time"

attorneys were free to work from home and/or to maintain a

private law office.

3. During Petitioner's employment with the Public

Defender's Office, Craig S. Dyer, Deputy Public Defender, was in

charge of personnel. James Wulchak, Chief of the Appellate

Division, was Petitioner's direct supervisor.

4. Petitioner has been under the continuous care of a

physician for Parkinson's disease since his diagnosis in 1997.

Parkinson’s disease is a neurological degenerative movement

disorder for which there is no known cure. The disease's

symptoms initially are responsive to medication but become less

responsive over time as the disease progresses.

5. Despite the slow progressive nature of Parkinson’s,

Petitioner always was able to compensate for his disability by

typing his briefs during the periods of time that his

medications were effective in relieving his symptoms. Sometimes

he worked before dawn, during the evening hours, or on weekends.

6. Petitioner never informed Mr. Purdy, Mr. Dyer, or

Mr. Wulchak that he was unable to perform his duties due to a

physical disability. Petitioner never requested or advised his

employer of a need for special accommodation to perform his

assigned tasks.

7. Petitioner continued to perform the duties required of

him as an appellate attorney up through the last day of his

employment. Petitioner's employer never contemplated dismissing

Petitioner due to his inability to perform satisfactory work.

8. In a meeting on March 25, 2008, Mr. Purdy requested

Petitioner's resignation due to an incident unrelated to his

disability. Petitioner responded that he needed time to

ascertain the status of his insurance benefits.

9. Several days later, Mr. Dyer placed a telephone call to

Petitioner. Petitioner again refused to resign.

10. On April 15, 2008, Petitioner attended a routine

weekly staff meeting. After the staff meeting, Mr. Dyer and

Mr. Wulchak had a private meeting with Petitioner. When

Petitioner refused to tender his resignation, Mr. Dyer

terminated Petitioner's employment effective immediately. But

for the incident unrelated to Petitioner's physical condition,

Petitioner's employer would have allowed him to continue to work

after April 15, 2008.

11. The next day, Petitioner met with representatives of

the Public Defender's Office to surrender files. The Public

Defender's Office denied Petitioner's request to be paid for

work performed on April 16, 2008.

12. As of April 15, 2008, Petitioner had accumulated 228

hours of annual leave and 242.59 hours of sick leave.

Respondent paid Petitioner for 120 hours of annual leave, the

maximum allowed. Petitioner did not receive payment for

accumulated sick leave because he had not worked six years for

the state.

13. At all times relevant here, Petitioner's employment

was classified as Select Exempt Service (SES). The DISP is one

of the employment benefits that Respondent provides to SES

employees under Florida Administrative Code Rules 60P-6 and 60P-

9. The purpose of DISP is to provide employees who are on leave

with income once their accumulated leave is depleted.

14. In April 2008, Petitioner filed a claim for disability

benefits with the Social Security Administration.

15. On May 5, 2008, Petitioner filed a Notice of Intent to

file a claim for benefits under the DISP. In the notice,

Petitioner asserted that he was disabled as of April 15, 2008,

the last day he was a paid employee. Within 90 days thereafter,

Petitioner filed his completed claim for disability income

payments under DISP.

16. In a letter dated July 1, 2008, Respondent advised

Petitioner that he was not eligible to receive DISP payments

because he was no longer a state employee.

17. A letter dated July 5, 2008, advised Petitioner that

he would receive Social Security disability income in the amount

of $2,060 per month commencing October 2008.

18. Petitioner offered the deposition testimony of Richard

Boehme, M.D. in lieu of testimony at hearing. Dr. Boehme, a

board-certified neurologist, treated Petitioner several times in

2003 and again in January 2004. Thereafter, Dr. Boehme did not

see Petitioner professionally until August 2008.

19. Dr. Boehme's medical opinion was that Petitioner was

totally disabled and unable to perform the duties pertaining to

his employment as of January 1, 2008. Dr. Boehme's testimony is

not persuasive in light of Petitioner's continued productivity

up through April 15, 2008.

20. Dr. Boehme did not place any specific limitations on

the physical activities of Petitioner. According to Dr. Boehme,

there was no medical reason to keep Petitioner from continuing

to perform the same duties he performed on his last day at work.

The greater weight of the evidence indicates that Petitioner was

performing satisfactorily on April 15, 2008.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2008).

22. Petitioner has the burden of proving by a

preponderance of the evidence that he is eligible to receive

future DISP payments. See Department of Transportation v.

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

23. Florida Administrative Code Rule 60P-9.001 contains

the following relevant definitions:

(3) "Employee" means an individual

holding a salaried Senior Management Service

or Selected Exempt Service position with any

state agency.

* * *

(6) "Totally disabled" means that the

employee is completely unable, due to

sickness or injury or both, to perform the

duties pertaining to his or her employment

and is under the direct care of a physician.

24. Regarding entitlement to benefit payments, Florida

Administrative Code Rule 60P-9.005 reads as follows in pertinent

part:

60P-9.005 Benefits.

If an employee, while insured under the

Plan and as a result of sickness or injury,

becomes totally disabled, the Plan will pay

biweekly benefits to the employee for the

period of such disability. Such benefits

are payable in an amount of sixty-five (65)

percent of the employee's basic daily

earnings at the date of disability.

Benefits are payable from the first benefit

day of any one continuous period of

disability up to a maximum of one year (364

days) subject to the following:

(1) The "first benefit day" shall be

the latter of:

(a) The thirty-first (31st) day if

continuous disability;

(b) The date following the day that an

employee exhausts all accumulated leave

credits including annual leave, sick leave,

sick pool leave and personal holiday leave.

* * *

(4) Plan benefits will be suspended at

the employee’s anniversary date and will

recommence on the date following the day

that an employee exhausts all accumulated

leave credits including annual leave, sick

leave, sick pool leave and personal holiday

leave.

25. As to termination of coverage, Florida Administrative

Code Rule 60P-9.009 provides as follows:

60P-9.009 Termination of Coverage.

The date of termination of coverage

will be as follows:

(1) In the event of termination of

employment, the employment termination date;

(2) In the event the employee requests

to cancel coverage, the last day of the

month in which the Department receives a

signed waiver of coverage;

(3) In the event an employee

terminates his or her position in Senior

Management or Select Exempt status but

remains a state employee, the last day of

the month for which premiums have been paid.

26. In this case, Petitioner may have been impaired but he

was not completely unable to perform his duties on his last day

of employment. On April 15, 2008, Petitioner had not exhausted

all of his accumulated leave. After April 15, 2008, Petitioner

was no longer an employee holding a salaried position. In any

event, Petitioner's eligibility to receive future DISP benefits

terminated on April 15, 2008, his employment termination date.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Respondent enter a final order finding that Petitioner

is not entitled to DISP benefits.

DONE AND ENTERED this 13th day of November, 2008, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of November, 2008.

COPIES FURNISHED :

Sonja P. Mathews, Esquire

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Henry T. Swann, III

Henry Swann, III

Post Office Box 4415

St. Augustine, Florida 32085

Dennis Robert Schutt, Esquire

Schutt, Schmidt & Noey

2700-C University Boulevard West

Jacksonville, Florida 32217

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

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.