09-005373 Jacqueline Imbertson, On Behalf Of Account Of Edward Imbertson, Deceased vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, December 29, 2009.

Summary: Petitioner failed to prove that her late husband's effective retirement date should be back-dated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAQUELINE IMBERTSON, ON BEHALF )

OF THE ACCOUNT OF EDWARD )

IMBERTSON, DECEASED, )

)

Petitioner, ) Case No. 09-5373

)

vs. )

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in this case was held on November 18,

2009, as previously scheduled, by video teleconference at sites

in West Palm Beach and Tallahassee, Florida, before

Administrative Law Judge Eleanor M. Hunter of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Alan M. Aronson, Esquire

Rosenthal, Levy and Simon

1645 Palm Beach Lakes Blvd.

Suite 350

West Palm Beach, Florida 33401

For Respondent: Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue is whether the retirement date for Petitioner's

late husband should be back-dated from August 1, 2004, to

September 6, 1999.

PRELIMINARY STATEMENT

Petitioner Jacqueline Imbertson's late husband suffered a

heart attack on September 6, 1999. At the time, he was employed

as a heating, ventilating, and air conditioning (HVAC)

technician for the Palm Beach County School District (the School

District). On October 3, 2002, a judge of compensation claims

issued an order finding that Mr. Imbertson had a compensable

claim and that he had become totally and permanently disabled on

the date he suffered the heart attack, September 6, 1999. On

behalf of her husband, Mrs. Imbertson filed an application for

in-the-line-of-duty disability retirement benefits on July 1,

2004. The Florida Division of Retirement (the Division)

determined that the date of his retirement was August 1, 2004.

Mrs. Imbertson requested the Division back-date her

husband's effective retirement date to September 6, 1999. The

Division refused and Mrs. Imbertson requested a hearing. The

matter was transferred to the Division of Administrative

Hearings on October 1, 2009, for the assignment of an

administrative law judge to conduct a hearing.

At the final hearing, on November 18, 2009, Petitioner

presented the testimony of Mrs. Imbertson. Petitioner's

Exhibits 1, 3, and 5 through 10 were admitted into evidence.

Respondent presented the testimony of Debra Roberts.

Respondent's Exhibits 1 through 17 which were admitted into

evidence.

The Transcript of the hearing was received on

November 18, 2009. Proposed Recommended Orders were received on

December 15, 2009.

FINDINGS OF FACT

1. Petitioner's late husband, Edward Imbertson, was

employed as a HVAC technician by the School District. As such,

he participated in the Florida Retirement System (FRS).

2. Respondent, the Division, is responsible for

administering the FRS program for approximately 900 employers

and 600,000 members.

3. Mr. Imbertson suffered a heart attack on

September 6, 1999. An order, entered by a judge of compensation

claims on October 3, 2002, determined that he was entitled to

workers' compensation because his condition was work-related,

and that he had become totally and permanently disabled on the

day of his heart attack.

4. Mr. Imbertson's medical condition continued to

deteriorate. He had a heart transplant in 2002, suffered renal

failure, and became diabetic and legally blind.

Mrs. Imbertson stopped working to care for her husband full

time. They spent substantial time away from their home in

Jupiter seeking medical care for her husband that included over

75 invasive procedures, many at Jackson Memorial Hospital in

Miami. At the same time, Mrs. Imbertson was trying to get

benefits for her husband, but primarily she focused on his

deteriorating health.

5. Following numerous requests for information and forms

from multiple sources, Mrs. Imbertson filed an application dated

July 1, 2004, for her husband to receive in-the-line-of-duty

disability benefits. On the application form, she reported that

the last day he actually worked was 9/3/99, his last day in pay

status was 3/21/00, but she left his termination date blank.

When she listed the last pay status date as March 21, 2000,

Mrs. Imbertson was using the date that her husband received a

check for unused leave. She believed, apparently correctly

based on subsequent notice from the District, that he was still

employed and that his pay status changed because he began

receiving workers' compensation benefits.

6. In a letter dated July 14, 2004, the Division requested

additional information in support of the application. The

information requested included an explanation of the delay in

applying for disability retirement, physicians' reports

attesting to total and permanent disability, proof of total and

permanent disability when employment terminated or of a Social

Security Disability Award notice, and workers' compensation

documentation that the injury is compensable and benefits have

been approved. Mrs. Imbertson provided some of the additional

information.

7. On August 6, 2004, the Division again sent a letter

asking for more information, noting that it needed reports from

two physicians, and proof of total and permanent disability on

the termination date. Mrs. Imbertson sent the second doctor's

report on August 7, 2004.

8. Both the July 14, 2004, and August 6, 2004, letters

included the following language:

If you are no longer employed and your

disability application was not received

within thirty days of your termination date,

provided you are not due to receive any

salary payments or credible service after

your application has been received, your

effective retirement date will be the first

day of the month following the date we

received your application.

9. When Mrs. Imbertson responded to those letters, she was

focused on providing the additional personal and medical

information for her husband, not on challenging the effective

retirement date. By certified mail from the Division dated

September 17, 2004, Mr. Imbertson was notified that he was

approved to receive regular disability retirement benefits, but

that his application for in-line-of-duty disability benefits was

denied.

10. Mr. Imbertson died on January 10, 2006. After an

appeal to the State Retirement Commission, on June 6, 2006, Mr.

Imbertson was found eligible for in-line-of-duty-retirement

benefits from the retroactive effective retirement date of

August 1, 2004.

11. Mrs. Imbertson requested that the Division determine

that her late husband's effective retirement date was

September 6, 1999. On January 6, 2009, the Division denied the

request, relying on Florida Administrative Code Rule 60S-4.0035,

that sets the date as the first day of the month following the

month in which the application was received.

12. At the hearing, the Division also relied on

essentially the same language that was included in the July 14,

2004, and August 6, 2004, letters sent to Mr. Imbertson. It

also relied on a letter dated November 10, 2004, in which the

District notified the Division that Mr. Imbertson's employment

was terminated on September 7, 2000. Mr. Imbertson was not

copied on the letter and Mrs. Imbertson did not know the

official date of termination, as indicated by her having left

the date blank on the application for disability retirement.

Based on the lack of notice from the District of her husband's

termination date, his inability to handle his personal matters,

and her difficulty in getting benefits while taking care of him,

Mrs. Imbertson believes she is entitled to have her husband's

effective retirement date back-dated.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat. (2009).

14. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceedings. Department of Transportation v.

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

v. Department of Health and Rehabilitative Services , 348 So. 2d

349 (Fla. 1st DCA 1977).

15. Petitioner, therefore, has the burden to demonstrate

by a preponderance of the evidence that the Division erred in

determining the effective retirement date.

16. Section 121.091, Florida Statutes (2009), provides

that FRS "[b]enefits may not be paid unless the member has

terminated employment . . . and a proper application has been

filed in the manner prescribed by the department."

17. Subsection 121.091(4)(a)1.a., Florida Statutes (2009),

related to disability benefits, is as follows:

A member who becomes totally and permanently

disabled, as defined in paragraph (b), after

completing 5 years of creditable service, or

a member who becomes totally and permanently

disabled in the line of duty regardless of

service, shall be entitled to a monthly

disability benefit. . . .

18. Florida Administrative Code Rule 60S-4.0035 provides,

in relevant part, that:

60S-4.0035 Retirement Application and

Effective Retirement Date.

(1) It shall be the responsibility of the

member, or the beneficiary in the event of

the member's death, to make proper

application to the Division for retirement

benefits. A member may apply for retirement

benefits within 6 months prior to his date

of termination of employment. If a member

terminates his employment and elects to

defer his retirement to some future date, he

may apply for deferred benefits up to 6

months prior to the date he desires his

retirement to become effective.

* * *

(3) The Division shall establish the

member's effective retirement date as

follows:

* * *

(b) For a member who makes application for

and is approved for disability retirement in

accordance with Rule 60S-4.007, F.A.C., and

for whom the Division has received from the

employer the required documentation of the

member's termination of employment, the

effective retirement date shall be:

* * *

3. The first day of the month following the

Division's receipt of the Form FR-13 when

receipt is more than 30 calendar days after

the documented termination date . . . .

19. In Heim v. Division of Retirement , DOAH Case No. 03-

0625 (R.O. 12/19/03, F.O. 1/28/04), the petitioner applied for

an earlier effective retirement date asserting that the agency

failed to inform her of an early retirement option. The

elements of equitable estoppel against a governmental entity

were applied, as set forth in Council Brothers, Inc. v. City of

Tallahassee , 634 So. 2d 264, 266 (Fla. 1st DCA 1994):

The elements which must be present for

The application of estoppel are: ‘(1) a

representation as to a material fact that is

contrary to a later-asserted position; (2)

reliance on that representation; and (3) a

change in position detrimental to the party

claiming estoppel, caused by the

representation and reliance thereon.’ State

Department of Revenue v. Anderson , 403 So.

2d 397, 400 (Fla. 1981). See also Dolphin

Outdoor Advertising v. Department of

Transportation , 582 So. 2d 709, 710 (Fla.

1st DCA 1991); Harris v. State, Department

of Administration, Division of Employees'

Insurance , 577 So. 2d 1363, 1366 (Fla. 1st

DCA 1991); Warren v. Department of

Administration , 554 So. 2d 568 (Fla. 5th DCA

1990).

20. In Hoffman v. State of Florida, Department of

Management Services, Division of Retirement , 964 So. 2d 163

(Fla. 1st DCA 2007), the court held that an appellant who did

not establish that the Division misrepresented a material fact,

either by omission or failure to disclose, had not shown that

the Division was estopped from denying her retroactive benefits.

21. Petitioner has not shown that there was any

misrepresentation of a fact, errors or omissions by the

Division.

22. The failure of the District to give notice of his

official termination date to the Petitioner's husband is also

not a basis to invoke the doctrine of estoppel. The mere

failure to act does not constitute a "positive act" upon which

an estoppel against a governmental agency can be based. See

Monroe County v. Hemisphere Equity Realty, Inc. , 634 So. 2d 745,

747-48 (Fla. 3d DCA 1994).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Management Services

enter a final order affirming the establishment of

August 1, 2004, as the effective retirement date for Edward

Imbertson.

DONE AND ENTERED this 29th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 29th day of December, 2009.

COPIES FURNISHED :

Alan M. Aronson, Esquire

Rosenthal & Levy, P.A.

1645 Palm Beach Lakes Boulevard, Suite 350

West Palm Beach, Florida 33401

Larry D. Scott, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Sarabeth Snuggs, Director

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.