16-000338 Nathan Lavon Florence vs. Department Of Financial Services Status: Closed Recommended Order on Friday, July 1, 2016.

Summary: Petitioner did not prove by a preponderance of the evidence that he was entitled to an education and training program to return to suitable gainful employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATHA N LAVON FLORENCE ,

Petitioner,

vs. Case No. 16 - 0338

DEPARTMENT OF FINANCIAL

SERVICES ,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on April 4, 2016 ,

by video teleconference at sites in Tallahassee and Pensacola ,

Florida , before Suzanne Van Wyk , a designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Natha n Lavon Florence, pro se

7970 Melbourne Avenue

Pensacola , Florida 32534

For Respondent : Cynthia L. Jakeman, Esquire

Division of WorkersÓ Compensation

Department of Financial Services

2 00 East Gaines Street

Tallahassee, Florida 323 99 - 422 9

STATEMENT OF THE ISSUE

W hether Petitioner is entitled to training and education at

RespondentÓs expense in order to return him to suitable gainful

employment .

PRELIMINARY STATEMENT

Petitioner was employed by Barnes Electric Company, Inc.

(Barnes) , as a n electricianÓs helper when he suffered a

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

PetitionerÓs authorized treatin g physician assigned him a

permanent impairment rating (PIR) of 15 percent and assigned

work restrictions that limited him to medium - level work and

prevented him from using power tools and lifting more than

20 pounds with his right hand . Barnes was unable to provide

employment to Petitioner under the assigned restrictions .

Petitioner requested the Department of Financial Services ,

Division of WorkersÓ Compensation (D epartment ) , perform an

evaluation to determine i f he qualified for vocational

assistance to return to suitable gainful employment consistent

with his post - injury condition.

On November 19, 2015, the Department determined that the

best way for Petitioner to return to suitable gainful employment

was through job placement assistance . Petitioner timely filed a

Petition for Review challeng ing the Department's decision , and

asserted that he wa s entitled to training and education , rather

than job placement ass istance, in order to return to suitable

gainful employment.

The petition was forwarded to the Division of

Administrative Hearings for a formal hearing. The final hearing

was scheduled for April 4, 2016 , and was held as scheduled.

At the final hearing, the pa rties offered Joint Exhibits

J1 through J4, which were admitted in evidence. Petitioner

testified on his own behalf and offered Exhibits P1 and P2 ,

which were admitted in evidence. Respondent introduced the

testimony of Cyn thia Bak er, vocational re habilitation

consultant; and Mary Cilek, senior management analyst

supervisor. Resp ondentÓs Exhibits R 1 through R9 were admitted

in evidence. At the request of Respondent, t he undersigned

officially recognized Florida Administrative Code Rules

69L - 2 2.006 and 69L - 22.008 .

The hearing was recorded and a one - volume Transcript of the

proceedings was filed on May 9, 2016 . On May 18, 2016,

Respondent filed an Unopposed Motion for Extension of Time to

Submit Recommended Order, which was granted. The parties were

given until June 20, 2016 , to file proposed recommended orders.

Respondent timely submitted a Proposed Recommended Order which

has been considered in the preparation of this Recommended

Order. Petitioner did not make any post - hearing filing.

References to statut es are to Florida Statutes (2015 )

unless otherwise noted.

FINDINGS OF FACT

1 . Respondent, t he Department of Financial Services,

Division of WorkersÓ Compensation (Respondent or Department) , 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 . Petitioner, Nathan Lavon Florence, is a 37 - year - old man

resid ing in Pensacola, Florida. Petitioner received his

Graduation Equivalent Diploma in 2001, and held a number of

different jobs between 2001 and 2007, including line cook , sales

associate, construction laborer, and warehouse worker.

3 . Petitioner began an electric i an apprenticeship program

in 2007, which he completed in May 2012.

4 . Petitioner began working for Barnes Electrical Company,

Inc. (Barnes) , as an electricianÓs helper in August 2013.

5 . Barnes paid Petitioner biweekly a t the rate of $13 per

h our for regular work and $19.50 per hour for overtime .

6 . On July 16, 2014, Petitioner suffered an on - the - job

injury in which his right hand was crushed by a light pole. A

workersÓ compensation claim (the underlying claim) was filed

with Amerisure Insurance Companies, BarnesÓ workersÓ

compensation carrier .

7 . PetitionerÓs authorized treating physician was

Dr. S teven Kronlage. On October 22, 2015, following three

surger ies and a period of treatment, Dr. Kronlage determined

Petitione r had attained maximum medical improvement and referred

Petitioner for pain management .

8 . Dr. Kronlage assigned Petitioner a permanent impairment

rating of 15 percent and assigned the following work

restrictions : medium - level work, no use of power too ls with

right hand , and no lifting more than 2 0 pounds with right hand.

9 . According to the U.S. Department of Labor, medium - level

work limits lifting to a maximum of 50 pounds.

10 . Barnes was unable to offer Petitioner employment that

met his work restrictions.

11 . The parties to the underlying claim entered into a

joint stipulation on January 14, 2016. The joint stipulation

Ðresolv[ed] all issuesÑ and provided, in pertinent part, as

follows:

1. The parties agree that the ClaimantÓs

average weekly wage shall be amended upward

by $7.59 resulting in a new average weekly

wage of $386.09.

2. The Employer/Carrier shall recalculate

ClaimantÓs past indemnity benefit s utilizing

the average weekly wage of $386.09 and shall

pay past due benefits util izing this average

weekly wage plus penalties and interest.

12 . Petitioner was represented by counsel in the

underlying claim.

13 . On November 8, 2015 , Petitioner applied to the

Department for a vocational assessment to determine the best way

to return Petitioner to suitable gainful employment.

14 . On November 19, 2015, the Department issued Petitioner

a decision letter determining that the best way to return

Petitioner to suitable gainful employment was through job

placement assistance.

15 . Cynthia Baker was the vocational rehabilitation

consultant assigned to PetitionerÓs case. Ms. Baker based her

recommendation for job placement assistance on PetitionerÓs

educational background, his pre - injury average weekly wage

( AWW ) , his work restrictions, and the Ðtransferable skillsÑ

Petitioner could bring to the job market (e.g., knowledge of the

English language; knowledge of materials, methods, and tools

used in construction a nd repair of housing; and knowledge of

machines and tools).

16 . Ms. Baker conducted a labor market survey to identify

job openings appropriate for PetitionerÓ s skill leve l and work

restrictions . Her goal was to identify jobs which could return

Petitioner to employment at, or close to, his pre - injury AWW.

17 . The l abor market survey identified a variety of jobs

available in the Pensacola area which Ms. Baker deemed suitable

to PetitionerÓs skill level and work restrictions. Potential

jobs i ncluded customer service representative for Florida Pest

Control, retail sal es associate for T - Mobile, asset

protection/loss prevention specialist for Home Depot , and

vehicle transporter for Hertz.

18 . Ms. Baker prepared a r é sum é for Petitioner to utilize

in applying for jobs identified in the labor m arket survey, and

she connect ed Petitioner with Michelle Godson at CareerSource,

the customer service specialist who would further assist

Petitioner with employment opportunities in the area.

19 . Petitioner did not apply for any of the jobs

identified by Respondent through the labor market survey.

Rather, Petitioner found employment on his own and sought no

further assistance from Respondent.

20 . Petitioner began work in December 2015 with WIS

International (WIS) as an inventory associate. The job entails

traveling to, and conducting inventory for , a variety of retail

stores in the region. Petitioner utilizes a hand - held scanner

to complete retail inventories. PetitionerÓs rate of pay is

$8.50 per hour and he is paid on a weekly basis.

21 . Petitioner works part - time for W IS, thus his earnings

are below his pre - injury AWW. Petitioner has no plans to apply

for a full - time position with WIS, although full - time work has

become available with WIS during his employment.

22 . Petitioner invested significant time and effort towar d

his electrician apprenticeship, and desires a career in a field

he enjoyed as much as electrician Ós helper . Petitioner has

requested the Department provide him with a training and

education program to become a radiology (x - ray) technician.

Specifically, h e would like to attend Pensacola State College Ós

Radiography Program .

23 . Mary Cilek is a senior management analyst supervisor

with the Department and reviewed PetitionerÓs request for

training and education . Ms. Cilek researched informati on on the

internet regarding the personal qualities of , and physical

demands on, radiology technicians, as well as the educational

requirements to become a radiology technician.

24 . No competent evidence was introduced on which the

undersigned could mak e a finding as to the particular

educational requirements to become a radiology technician , or

whether Petitioner would be able to perform the duties of a

radiology technician within his work restrictions. 1 /

25 . PetitionerÓs argument in this case is twof old: First,

the Department should assist him to obtain a career, rather than

Ðany old jobÑ that would allow him to earn at or near his pre -

injury AWW. Second, Petitioner objects to the DepartmentÓs

reliance on his pre - injury AWW as the basis for a labor market

survey. Petitioner maintains that his pre - injury AWW was

artificially low because he was out of work, or working part -

time, during some of the weeks prior to the injury due to an

illness.

26 . Section 440.491(1)(g) , Florida Statutes, defines

Ðsuitable gainful employmentÑ as

employment . . . that is reasonably

attainable in light of the employeeÓs age,

education, work history, transferable

skills, previous occupation, and injury, and

which offers an opportunity to restore the

individu al as soon as practicable and nearly

as possible to his or her average weekly

earnings at the time of injury.

27 . While Petitioner maintains that none of the jobs

identified was reasonably obtainable, given PetitionerÓs work

history, education, and work restrictions, Petitioner introduced

insufficient evidence on which the undersigned could make that

finding. 2 /

28 . In this case, PetitionerÓs AWW was established by the

stipulation. Petitioner introduced no evidence that he had

moved to set aside the stip ulation or otherwise challenge the

determination of his AWW . Petitioner did not claim that the

st ipulation was obtained by either fraud or duress, or based on

mistake of fact.

C ONCLUSIONS OF LAW

29 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

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

30 . As the party asserting the affirmative of the issue,

Petitioner has the burden to demonstrate , by a preponderance of

the evidence , that he is entitled to a training and education

program to return him to suitable gainful e mployment , pursuant

to s ection 440.491 . Balino v. Dep Ót of HRS , 348 So. 2d 349, 350

(Fla. 1st DCA 1977 ) ; 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) .

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

provides, in pertinent part, that:

(a) [U] pon 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, if

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 rehabilitation 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

auth orized 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 voca tional 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 department

shall by rule establ ish training and

education standards pertaining to employee

eligibility, course curricula and duration,

and associated costs.

32 . In accordance with the rulemaking authority conferred

by the Legislature, the D epartment has adopted Florida

Administrative C ode Chapter 69L - 22.

33 . 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 temporary partial

disabilit y and wage loss benefits to

determine the injured employeeÓs inability

to obtain suitable gainful employment

because of his injury . . . .

* * *

(d) If the injured employee is eligible to

receive reemployment services, the

vocational assessment shall determine which

of the following shall be offered to the

injured employee: placement, and/or on - the -

job training, and/or vocational evaluation,

and/or a training and education program

costing less than $2,500 and lasting twelve

(12) months or less.

34 . In this case, Petitioner challenges the DepartmentÓs

determination that employment which would allow him to earn at

or near his AWW at the time of the injury is suitable gainful

employment. Primarily, Petitioner disputes RespondentÓs

reliance on the st ipulation as to his AWW in the underlying

claim and sought to prove that his AWW was artificially low due

to illness prior to his injury.

35 . It is axiomatic that settlement agreements, like the

stipulation in the underlying claim, are contracts. See Eag le

FL VI SPE v . T&A Family PÓship , 177 So. 3d 1277, 1280 (Fla. 2d

DCA 2015); Point Mgmt . , Inc. v. DepÓt of Bus. Reg., Div. of Fla.

Land Sales & Condos. , 449 So. 2d 306, 307 (Fla. 4th DCA 1984) .

36 . Relief is not warranted Ðwhere it appears that the

stipulation was voluntarily undertaken and there is no

indication that the agreement was obtained by fraud,

misrepresentation, or mistake of fact.Ñ Id . quoting Henrion v.

New Era Realty IV, Inc. , 586 So. 2d 1295, 1298 (Fla. 4th DCA

1991).

37 . While Peti tionerÓs desire to pursue a career is

laudable, Pe titioner did not establish that employment within

his work restrictions which allows him to earn at or near his

pre - injury AWW is not suitable gainful employment.

38 . Thus, Petitioner did not prove by a preponderance of

the evidence that Respondent is responsible for training and

education assistance pursuant to section 440. 491(6).

RECOMMENDATION

Upon consideration of the above findings of fact and

conclusions of la w, it is

RECOMMENDED t hat the Department of Financial Services,

Division of WorkersÓ Compensation , enter a final order

determining that Petitioner , Nathan Lavon Florence , is not

eligible for training and education services at RespondentÓs

expense .

DONE AND ENTERED this 1st day of July , 201 6 , in

Tallahassee, Leon County, Florida.

S

Suzanne Van Wyk

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 1st day of July , 201 6 .

ENDNOTE S

1/ Ms. Cilek testified that, in her opinion, Petitioner would

not be able to perform the duties of radiology technician within

his work restrictions. Ms. Cilek was not qualified as an expert

witness, thus her opinion testimony was neither credible nor

reliable. See § 90.701(2) , Fla. Stat. (ÐIf a wi tness is not

testifying as an expert, the witnessÓs testimony about what he

or she perceived may be in the form of inference and opinion

when . . . [t]he opinions and inferences do not require a

special knowledge, skill, experience, or training.Ñ).

Furthe r, Ms. CilekÓs testimony was based solely on articles and

reports she obtained from the internet , which constitute

hearsay . § 90.801(c), Fla. Stat. Those materials , although

accepted in evidence, neither supplemented nor explained other

non - hearsay evidence. Thus, the undersigned cannot make any

finding of fact based solely on the evidence introduced. See

Fla. Admin. Code R. 28 - 106. 213(3) (ÐHearsay evidence, whether

received in evidence over objection or not, may be used to

supplement or explain ot her evidence, but shall not be

sufficient in itself to support a finding [.] Ñ).

2 / The record does reveal that one of the jobs identified in the

labor market survey, store a ssociate/stocker for Big Lots, was

outside of PetitionerÓs work restrictions becau se it required

the Ðability to lift, carry, push and pull a minimum of 50

pounds . Ñ That requirement exceeds PetitionerÓs work restriction

for lifting maximum loads of 2 0 pounds .

COPIES FURNISHED :

Nathan Lavon Florence

7970 Melbourne Avenue

Pensacola, Florida 32534

Cynthia L. Jakeman, Esquire

Division of WorkersÓ Compensation

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

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.