13-000717 Ring Power Corporation And United Self Insured Services vs. Jeffrey R. Baxter And Department Of Financial Services Status: Closed Recommended Order on Wednesday, July 3, 2013.

Summary: Respondents failed to demonstrate that the claimant's inability to continue working at his previous position and duties was the result of a workplace injury. Thus, Petitioners are not responsible for providing reemployment services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RING POWER CORPORATION AND

UNITED SELF INSURED SERVICES ,

Petitioner s ,

Case No. 1 3 - 0717

vs.

JEFFREY R. BAXTER AND

DEPARTMENT OF FINANCIAL

SERVICES ,

Respondent s .

/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on May 24, 2013 , by

video teleconference at sites in Tallahassee, Florida and

Jacksonville, Florida , before E. Gary Early, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner s : Heather E. Sosnowski, Esquir e

McConnaughhay, Duffy, Conrood ,

Pope, & Weaver, P.A.

Suite 500

6816 Southpoint Parkway

Jacksonville, Florida 32216

For Respondent Jeffrey R . Baxter :

Bruce Feifer, Esquire

Farah & Farah

Third Floor

10 West Adams Street

Jacksonville, Florida 32202

For Respondent Department of F inancial Services:

Cynthia A. Shaw , Esquire

Department of Financial Services

2 00 East Gaines Street

Tallahassee, Florida 323 99

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent , Jeffrey R .

Baxter ( Mr. Baxter ) is eligible for vocational training and

education at PetitionersÓ expense to allow for hi m to return to

suita ble gainful employment .

PRELIMINARY STATEMENT

Mr. Baxter was employed by Petitioner, Ring Power

Corporation (Ring Power) , as a n engine mechanic when he suffered

a compensable work - related injury. After a period of treatment,

Mr. Baxter Ós authorized treating physician assigned him a

perso nal impairment rating (PIR) of seven percent and assigned

work restrictions that prevented him from lifting more than 10

pounds. Ring Power was unable to provide employment to

Mr. Baxter under the assigned restrictions, and terminated him

from employment.

Mr. Baxter requested that the Department of Education,

Bureau of Rehabilitation and Reemployment Services (D OE ) ,

perform an evaluation to determine if he qualified for

vocational training and education to assist him in returning to

suitable gainful employment consistent with his post - injury

cond ition.

The D OE received Mr. Baxter Ós request and related

information, and obtained additional records from USIS . The

application was placed on an informal hold due to uncertain ty

regarding the future of the vocational training and education

program .

As a result of action taken during the 2012 legislative

session , responsibility for the administration of the vocational

training and education program was transferred from DOE to the

Department of Financial Services, Division of WorkersÓ

Compensation (De partment). Thereafter, the Department

determined that the best outcome that would allow for Mr. Baxter

to return to suitable gainful employment was through the

Computer Information Technology , A.S. - degree program at Florida

Gateway College . Petitioners , Ring Power Corporation (Ring

Power) and United Self Insured Services (USIS) , would be

financially responsible for the retraining program.

Petitioners timely filed a Petition for Review that

challeng ed the Department's decision , and asserted that

Mr. Ba xter is not eligible for vocational training and education

because he has no permanent , physical limitations that are

related to his workplace injury.

The petition was forwarded to the Division of

Administrative Hearings for a formal hearing. The final hearing

was scheduled for May 24, 2013, and was held as scheduled.

At the final hearing, Joint Exhibits 1 through 4 were

received in evidence. PetitionersÓ Exhibit 1, consisting of the

deposition testimony of Droy Lowell , was received in

evidence wit hout objection, and has been accepted and considered

as though Dr. Lowell testified in person. T he Department called

Mary Cilek, program administrator for the DepartmentÓs

Reemployment Services Section , and Mr. Baxter to testify .

Respondents Ó E xhibits 1 and 2 were received in evidence.

RespondentsÓ Exhibit 2 , consisting of the deposition testimony

of Dr. Phil Riddlehoover was received in evidence without

objection, and has been accept ed and considered as though

Dr. Riddlehoover testified in person.

Th e hearing was not transcribed. Each party timely

submitted proposed findings of fact and conclusions of law which

have been duly considered in the preparation of this Recommended

Order.

References to statutes are to Florida Statutes (2012)

unless otherwi se noted.

FINDINGS OF FACT

1 . The Department of Financial Services, Division of

WorkersÓ Compensation , is the agency of the state of F lorida

charged with administration of medical care coordination and

reemployment services that are necessary to assist employees

injured in the workplace to return to suitable gainful

employment .

2 . Mr. Baxter was , at the time of the hearing, 45 years of

age. During the periods relev ant to this proceeding, he was

five feet, seven inches in height, and his weight ranged from

285 to 307 pounds. Mr. Baxter was employed by Ring Power as a

mechani c from June 2006 until July 2011.

3 . In July , 2008, Mr. Baxter suffered a non - compens a ble

injury while at home. He was seen by Dr. Phil Riddlehoover , a

primary - care orthopedist practicing with The Orthopaedic

Institute , who noted that Mr. Baxter complained of a sudden

onset of low er - back , left buttock, and left hip pain.

Dr. Riddlehoover re lated that Mr. Baxter had experienced similar

bac k pain problems on several occasions over the past Ðcouple of

years,Ñ for which he receiv ed chiropractic treatment.

Mr. Baxter related to Dr. Riddlehoover that he had some

lessening of pain with the chiropractic treatments, but still

had significant limit ation of range of motion and spasm .

4 . During his examination, Dr. Riddlehoover noted that

Mr. Baxter had Ðmarked limitation of range of motion in flexion

and extension as well as side - to - side rotary movements.Ñ An X -

ray was taken, which showed minimal osteophyte formation in the

lumbar spine, with well - maintained vertebral body heights and

normal disk spaces. Dr. RiddlehooverÓs assessment was low back

pain, for which he recommended physical therapy for three weeks,

prescribed medications, and Ðencouraged . . . light duty

activity. Ñ

5 . Based on stipulated facts submitted by the parties, the

following findings are made:

A. Mr. Baxter was involved in a compensable work -

related accident while employed with the emplo yer, Ring Power,

on or about September 18, 2008.

B. Petitioner s accepted the September 18, 2008 , work -

related accident as compensable and provided medical treatment

for same.

C. Mr. Baxter was treated by Dr. Edward Samby, an

authorized treating physi cian, for the September 18, 2008 , work -

related accident .

D. On October 7, 2 008, Dr. Samby opined that

Mr. Baxter had reached MMI as a result of the September 18,

2008 , work place accident with a zero percent PIR. At that time,

Dr. Samby released Mr. Bax ter to full duty with no restrictions.

6 . Despite the foregoing stipulated facts, there is not an

iota of competent substantial evidence in the record of this

proceeding of the nature of the September 18, 2008 , work - related

accident , whether it involved or affected Mr. BaxterÓs back, or

whether it has any bearing whatsoever on any issue in this

proceeding. Therefore, other than the bare stipulations, no

findings regarding that purported accident are or can be made.

7 . On August 24, 201 0 , Mr. Baxter suffered a workplace

injury that was determin ed to be compensable under the F lorida

WorkersÓ Compensation Act. Mr. Baxter Ós injury was to his lower

back.

8 . On September 16, 2010, Mr. Baxter was again seen by

Dr. Riddlehoover. Dr. Riddlehoover relat ed that Mr. Baxter

experience d a sudden onset of low er - back discomfort while

lifting and twisting a heavy object that was exacerbated when he

twisted. Dr. Riddlehoover noted that Mr. Baxter Ðhas a

significant history of low back pain complaints within the last

two to three - year time frame.Ñ 1/

9 . Dr. Riddlehoover noted limitation to Mr. Baxter Ós range

of motion and tenderness to palpation . X - rays of Mr. BaxterÓs

back were taken in the of fice, and compared to previous X - rays.

Dr. Riddlehoover noted tha t there was Ða transitional vertebra

at L5,Ñ and in comparison with previous X - rays, there was Ðsome

loss of disk space height at L5 - S1 with some scoliosis of the

endplates. There are also some small posterior osteophytes that

seem to have developed at L4 - 5 and L5 - S1 as well.Ñ Mr. Baxter

was there upon placed on light - duty status , and referred for

physical therapy.

10 . On October 7, 2010, Mr. Baxter had a follow - up visit

with Dr. Riddlehoover. Mr. Baxter stated that he had no

improvement from his physical therapy, though Dr. Riddlehoover

noted that Ð[i]t seems as though the physical therapy note that

accompanies him from Health Works indicates to the contrary.Ñ

Since Mr. Baxter continued to complain of i ntermittent sharp

pains, Dr. Riddlehoover ordered a MRI Ðas there seems to be a

discrepancy as far as what the patient is reporting with his low

back pain and what the physical therapist is reporting. Ñ

Physical therapy was discon tin ued.

11 . On October 8 , 2010, Mr. Baxter underwent a MRI of his

lumbar spine. The MRI, as interpreted by Dr. Riddlehoover,

showed a disk herniation at L 4 - 5, and a disk bulge at L5 - S1. He

determined the most significant problem was related to the disk

bulge at L5 - S1 . Dr. Ridd lehoover referred Mr. Baxter for a

series of epidural steroid injections.

12 . By November 9, 2010, Mr. Baxter reported modest

improvement from the epidural injections . Dr. Riddlehoover

decided to wait three to four weeks in order to determine

whether Mr . Baxter was responding to treatment. Mr. Baxter was

provided with a note reiterating his work limitations.

13 . On December 2, 2010, Mr. Baxter reported to

Dr. Riddlehoover that he continued to show improvement.

Dr. Riddlehoover referred him for a repe at epidural injection,

and refilled his medication prescription .

14 . On February 2, 2011, Dr. Riddlehoover reported that

Mr. Baxter continued to have ongoing discomfort in his back that

required continued use of narcotic analgesics. Dr. Riddlehoover

fur ther reported that Mr. Baxter was Ðunable to do a hard days

labor and place high demands on his back without serious

discomfort.Ñ He refilled Mr. BaxterÓs medication prescription,

and r eferred Mr. Baxter to Droy Trimble , an orthopedic

surgeon practicing with The Orthopaedic Institute , to determine

his suitability for surgical relief.

15 . On March 9, 2011 , Drimble diagnosed Mr. Baxter

with low back pain to the left leg, lower thorasic right side

back pain, and morbid obesity. He recomme nded physical therapy,

medication refills, and possibly a L 3 selective nerve block. He

suggested that Mr. BaxterÓs symptoms would improve with

aggressive physical therapy and weight loss, and concluded that

Mr. Baxter was not a surgical candidate. Dr. Ri ddlehoover

relied upon Dr. TrimbleÓs r eport in the development of his

opinions.

16 . At some time prior to March 25, 2011, Mr. Baxter

suffered a separate back injury that occurred while he was

getting out of a truck. It resulted in a sudden onset of

disc omfort that caused him to go to an emergency room. The

emergency room referred Mr. Baxter back to Dr. Riddlehoover for

further evaluation and management. By the time of his visit

with Dr. Riddlehoover on March 25, 2011 , the discomfort from

that injury wa s completely gon e. Dr. Riddlehoover placed

Mr. Baxter at MMI with a PIR of zero percent for that claim, but

noted that Mr. Baxter was to follow up with him to assess his

consultation with Drimble.

17 . On April 26, 2011, Mr. Baxter followed up with

Dr. Riddlehoover, continuing to complain of low er - back

discomfort from time - to - time. Dr. Riddlehoover extended

physical therapy for a n additional period of four weeks , and

refilled Mr. BaxterÓs medication prescription.

18 . On June 1, 2011, Mr. Baxter returned to

Dr. Riddlehoover, and indicated no improvement with his low er -

back and spine pain after six weeks of physical therapy.

Dr. Riddlehoover referred Mr. Baxter back to Drimble for

further assessment as to whether he was an operative candidate ,

and refilled Mr. BaxterÓs medication pr escription s .

19 . On June 9, 2011, Ring Power determined it was no

longer able to employ Mr. Baxter within the light duty

restrictions assigned by Dr. Riddlehoover, and therefore

terminated his employmen t.

20 . On June 20, 2011, Drimble reevaluated Mr. Baxter .

He again diagnosed Mr. Baxter with low er - back pain to the left

leg , and noted evidence of L5 - S1 disc degeneration. Dr. Trimble

reiterated that Mr. Baxter was not a surgical candidate , and

rec ommended pai n management and weight loss.

21 . On June 29, 2011, Mr. Baxter returned to

Dr. Riddlehoover, who thereupon placed Mr. Baxter at MMI and

assigned a seven percent PIR. Dr. Riddlehoover assigned

permanent work restrictions that allowed Mr. Baxt er to lift no

more than 10 pounds, and instructed Mr. Baxter to follow up as

needed.

22 . As to the cause of the disk abnormalities,

Dr. Riddlehoover testified that ÐI can only assume that [the

herniation and bulge] were related to the workplace accident

because I had no prior MRIs.Ñ Dr. Riddlehoover concluded that

the workplace injury was the major contributing cause of the

PIR, based upon the history of the i njury; his reading of the

October 2010 , MRI re sults ; and subsequent treatment.

23 . The PIR and work restrictions were not based on a

functional - capacity examination or other objective measure , but

relied entirely on Mr. Baxter Ós relation of his subj ective

impression as to what he could withstand without discomfort .

24 . On August 31, 2011, Mr. Baxter requested vocational

screening from DOE. In mid - 2011, DOE vocational rehabilitation

funding was cut. There after , processing of applications for

vo cational training and education , including that of Mr. Baxter,

was slowed.

25 . In the Medical Update Questionnaire that accompanied

his request for vocational screening, Mr. Baxter noted that he

had completed all medical treatment, but requested a second

opinion.

26 . On January 5 , 2012, at Mr. Baxter Ós request, he was

evaluated by Droy Lowell , a board - certified orthopedic

surgeon . Dr. Lowell reviewed Mr. Baxter Ós 2010 X - ray and MRI,

and pe rformed a phys ical examination. Although Dr. Lowell

testified that he did not recall having seen any X - ray other

than that taken in 2010, his office visit report indicates that

Mr. Baxter Ðpresents with x - rays from that time,Ñ and that

Ð[c]ompared to 2008 films there is no significant change.Ñ

27 . Mr. Baxter told Dr. Lowell that he had experienced

back pain since 2008 . However, Dr. Lowell was unaware of the

accident that occurred in 2008 or, seemingly, of the earlier

incidents of lower - back pain previously related by Mr. Baxter to

Dr. Riddleho over .

28 . Dr. Lowell analyzed the 2010 MRI, and saw no evidence

of the disk herniation noted by Dr. Riddlehoover. Rather, his

reading of the MRI showed a slight degenerative bulge at L4 - 5,

and severe degenerative disk disease at L5 - S1. Dr. Lowell

con cluded that the severe degenerative disk disease at L5 - S1 was

the cause of Mr. BaxterÓs ongoing symptoms.

29 . Dr. Lowell testified that that it was possible that an

injury occurring prior to 2010 could have led to the observed

degree of degenerative di sk disease in 2012, but that he did not

have sufficient information to draw a conclusion as to whether

the 2008 injury in particular was the cause . However, h e was

confident that the level of degeneration could not have resulted

from a 2010 traumatic inju ry.

30 . Based on his office examination an d review of the X -

ray and MRI , Dr. Lowell placed Mr. Baxter at MMI and assigned a

zero percent PIR . His assignment of a zero percent PIR was

based on his understanding that Mr. Baxter may have had Ð an

exacerbation of symptoms as a result of his work injury ,Ñ but

that there was no objective evidence of any worsening or

aggravation of the preex is ting condition, nor was there any

evidence of any new injury resulting from the August 24, 2010 ,

workplace acci dent. In Dr. LowellÓs opinion, it is Mr. BaxterÓs

preexisting , severe degenerative disk disease that prevents his

ability to work at his previous position and duties.

31 . At about the time that Dr. LowellÓs report was

received, DOE staff was advised that s ection 440.491 was likely

to be repealed during the 2012 legislative session. In

response, DOE did nothing to advance any t raining and education

screenings or referrals.

32 . Section 440.491 was not repealed during the 2012

legislative session. Ra ther, duties and responsibilities for

the administration of training and education screenings,

reemployment assessments, vocational evaluations, and

r eemployment services that had been the responsibility of the

DOE were transferred to the Department .

33 . The transfer of duties from DOE to the Department w as

approved on April 20, 2012, but did not become effective until

July 1, 2012. DOE personnel did not act on request s for

retraining in the interim because they did not want to obligate

funds to be appli ed to the DepartmentÓs budget after the

transfer of responsibilities. Given the disruption that

resulted from the transfer of duties and staff to the

Department , a vocational evaluation for Mr. Baxter was not

arranged until October 2012 .

34 . The vocatio nal asse s sment of Mr. Baxter was performed

on November 2, 2012 , by Karla Wooten, pursuant to a contract

with the Department. The evaluation resulted in the submission

of a Vocational Evaluation Final Report to the Department on

November 20, 2012. The Fin al Report recommended that Mr. Baxter

be afforded the opportunity to continue his education through

the Computer Information Technology , A . S . - degree program at

Florida Gateway College .

35 . On December 3, 2012 , the Department issued its notice

approving v ocational education , which determined that the best

way to return Mr. Baxter to suitable gainful employment was

through the Computer Information Technology , A . S . - degree program

at Florida Gateway College.

36 . When it made its decision , the Department had the

office - visit evaluation reports from Dr. Riddlehoover and

Dr. Lowell, along with the information submitted with the

Request for Screening and the completed forms and file materials

from USIS. The Department accepted Dr. RiddlehooverÓs

assessment o f Mr. BaxterÓs injury as carrying more weight

because he had seen Mr. Baxter on 10 occasions going back to his

2008 injury, and had authorized treatments over an eight to ten -

month period.

37 . Ring Power and USIS filed a petition disputing the

DepartmentÓ s notice of approval on the basis that Mr. Baxter

does not meet the qualifications for retraining. The vocational

education program itself was not disputed.

38 . On December 18, 2012, Mr. Baxter was again seen by

Dr. Lowell. The visit was apparently non - eventful, as

Dr. Lowell had no memory of it until presented with his report

at his April 16, 2013 , deposition. However, the report

indicated no change in Mr. Baxter Ós sympto m s, and resulted in no

change of his diagnosis or opinion .

39 . There is no ques tion but that Dr. Riddlehoover was

more familiar with Mr. BaxterÓs symptoms as a result of his

multiple office visits. However, testimony of Dr. Riddlehoover

and Dr. Lowell regarding the cause of those symptoms , i.e., disk

herniation versus disk degenerat ion, was based entirely on their

reviews of the same MRI and X - rays.

40 . Dr. Riddlehoover had been practicing orthopedics for

six years at the time of his May 7, 2013 , deposition testimony.

He is not board certified in any area. His residency was in

f amily practice, and his professional experience prior to his

October 2007 , association with The Orthopaedic Institute in Lake

City, Florida, was exclusively as an Emergency Department

Physician.

41 . Dr. Lowell has specialized in orthopedics for the

entir ety of his professional career. He has been certified

since 1996 in orthopedic surgery by the American Board of

Orthopaedic Surgery. Dr. Lowell has published and presented on

topics directly related to issues relevant to this proceeding,

including disk h erniations and epidural steroid treatments.

42 . To be clear, the undersigned in no way discounts or

denigrat es Dr. RiddlehooverÓs record of medical training,

experience, and service, which appears to be exemplary .

However, based on Dr. LowellÓs de pth of specialized knowledge,

and the substance and certainty of his testimony regarding the

cause of Mr. BaxterÓs inability to continue working at his

previous level of exertion, the undersigned accepts Dr. LowellÓs

conclusion that Mr. BaxterÓs medical condi tion is the result of

degenerative conditions that predate the workplace injury as

being the most persuasive evidence on that issue .

C ONCLUSIONS OF LAW

43 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matt er of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. ; Ring Power Corp.

v. Campbell , 697 So. 2d 203 , 206 (Fla. 1st DCA 1997) .

44 . As the parties asserting the affirmative of the issue,

Respondents have the burden to demonstrate , by a preponderance

of the evidence , that the DepartmentÓs approval of training and

education as a means of returning Mr. Baxter to suitable gainful

e mployment is appropriate under s ection 440.491, Florida

Statutes. Balino v. Dep Ót of HRS , 348 So. 2d 276, 280 (Fla.

2000); DepÓt of Transp. v. J.W.C. Co . , 396 So . 2d 778 (Fla. 1st

DCA 1981) ; N. W. v. DepÓt of Child. & Fam. Servs. , 981 So. 2d

599 (Fla. 3d DCA 2008) .

45 . The issue for resolution in this case is not whether

the training and education proposed for Mr. Baxter is

appropriate, but whether Mr. Baxter qualifies for such training

and education at the expense of Petitioners as the result of a

workplace injury.

46 . Section 440.491(6), entitled ÐTraining and Education,Ñ

provides, in pertinent part, that:

(a) Upon referral of an injured employee by

the carrier, or upon the request of an

injured employee, the department shall

conduct a training and education screening

to determine whether it should refer the

employee for a vocational evaluation and, i f

appropriate, approve training and education

or other vocational services for the

employee. At the time of such referral, the

carrier shall provide the department a copy

of any reemployment assessment or

reemployment plan provided to the carrier by

a reh abilitation provider. The department

may not approve formal training and

education programs unless it determines,

after consideration of the reemployment

assessment, that the reemployment plan is

likely to result in return to suitable

gainful employment. The department is

authorized to expend moneys from the

WorkersÓ Compensation Administration Trust

Fund, established by s. 440.50, to secure

appropriate training and education at a

Florida public college or at a career center

established under s. 1001.44, or to secure

other vocational services when necessary to

satisfy the recommendation of a vocational

evaluator. As used in this paragraph,

Ðappropriate training and educationÑ

includes securing a general education

diploma (GED), if necessary. The departme nt

shall by rule establish training and

education standards pertaining to employee

eligibility, course curricula and duration,

and associated costs.

47 . In accordance with the rulemaking authority conferred

by the Legislature, the D epartment has adopted Florida

Administrative C ode Chapter 69L - 22.

48 . Rule 69L - 22.006 , entitled ÐScreening Process,Ñ

provides, in pertinent part, that:

( 2) The screening process shall consist of:

* * *

(b) A review of the documentation which

supports the payment of tem porary partial

disability and wage loss benefits to

determine the injured employeeÓs inability

to obtain suitable gainful employment

because of his injury . . . .

49 . Rule 69L - 22.006 further provides, in pertinent part,

that:

(9) The Department shall n ot refer the

injured employee for a vocational evaluation

if the injured employee:

* * *

(b) Has no documented permanent physical

restrictions related to the injury. . . .

50 . In this case, Respondents failed to establish, by a

preponderance of competent, substantial evidence, that

Mr. BaxterÓs inability to work at his previous position with

Ring Power was the result of the August 24, 2010 , workplace

accident , or of any other compensable work place accident . The

greater weight of the evidence establishes that Mr. BaxterÓs

physical restrictions are related to severe degenerative disk

disease that manifested before the August 24, 2010 , workplace

injury.

51 . There is no requirement that an em ployer provide

training benefits for physical restrictions which are unrelated

to a work - related injury. Thus, Petitioners are not responsible

for training and education benefits intended to return

Mr. Baxter to suitable gainful employment .

RECOMMENDATI ON

Upon consideration of the above findings of fact and

conclusions of law, it is

RECOMMENDED t hat the Department of Financial Services,

Division of WorkersÓ Compensation , enter a final order

determining that Respondent, Jeffrey R. Baxter , is not eligible

for reemployment services at PetitionersÓ expense .

DONE AND ENTERED this 3rd day of J uly, 201 3 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of J uly , 201 3 .

ENDNOTE

1/ Both Dr. Riddlehoover and Dr. Lowell discussed their office

assessment records in their depositions. Drimble is in the

same practice firm with Dr. Riddlehoover, and his records fall

under the same precepts applicable to Dr. RiddlehooverÓs

records. Many of the records were introduced as joint exhibits,

and in any event there was no objection to their authenticity.

The records and the statements therein were produced as part of

Mr. BaxterÓs efforts to obtain medical diagnosis and treatment.

Based on the testimony of the doctors who produced and relied

upon the records, the undersigned concludes that th ey fall

within exceptions to the hearsay rule pursuant to section s

90.803(4) and 90.803(6), Florida Statutes.

COPIES FURNISHED :

Cynthia A. Shaw, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

Heather Elizabeth Sosnowski, Esquire

McConnaughhay, Duffy, Coonrod ,

Pope and Weaver, P.A.

6816 Southpoint Parkway Suite 500

Jacksonville, Florida 32216

Bruce S. Feifer, Esquire

Farah and Farah, P.A.

10 West Adams Street, 3rd Floor

Jacksonville, Florida 32202

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0 390

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.