98-005203 Connie S. Timmerman vs. Division Of Retirement Status: Closed Recommended Order on Friday, August 13, 1999.

Summary: Member`s surviving spouse established, within a reasonable degree of medical probability, causal connection between late husband`s working conditions and his death; award of "in line of duty" death benefits thus recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONNIE S. TIMMERMAN, )

)

Petitioner, )

)

vs. ) Case No. 98-5203

)

DIVISION OF RETIREMENT, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Section 120.57(1), Florida Statutes, on June 3, 1999,

by video teleconference, before Stuart M. Lerner, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Stanley M. Danek, Esquire

2114 Great Oak Drive

Tallahassee, Florida 32303

For Respondent: Robert B. Button, Esquire

Division of Retirement

Cedars Executive Center

Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

Whether Petitioner, the surviving spouse of Ralph Timmerman,

is entitled to receive "in line of duty" death benefits?

PRELIMINARY STATEMENT

By letter dated November 24, 1998, the State Retirement

Director, A.J. McMullian III, notified Petitioner of the denial

of her application for "in line of duty" death benefits from the

account of her late husband, Ralph Timmerman. In his letter,

Mr. McMullian stated the following:

As stated in my letter of September 15, your

husband's death was not related to any

accident or injury arising out of requirement

of his job. It is apparent that the argument

that occurred with his supervisor would not

be an issue if not for his history of heart

disease. Therefore, your application for in-

line-of-duty death benefits is denied. Since

Mr. Timmerman was vested in the Florida

Retirement System, you are eligible for the

Option 3 monthly benefit.

On or about November 5, 1998, Petitioner filed with Respondent a

Petition for Formal Administrative Hearing. On November 24,

1998, the matter was referred to the Division of Administrative

Hearings for the assignment of an Administrative Law Judge to

conduct the administrative hearing Petitioner had requested.

As noted above, the hearing was held on June 3, 1999. 1

Three witnesses testified at the hearing: Petitioner, Harold

Markey, and Stanley Colvin. In addition to the testimony of

these three witnesses, a total of nine exhibits were offered and

received into evidence at hearing: Petitioner's Exhibits 1

through 6, and Respondent's Exhibits 2 through 4. 2 The

undersigned deferred ruling on the admissibility of Petitioner's

Exhibit 7, a newspaper article in the May 29, 1999, edition of

the Jacksonville Times-Union, which bore the headline,

" Unneighborly argument leads to murder charge," and read as

follows:

WEST PALM BEACH- A woman was arrested eight

months after her neighbor suffered a heart

attack and died following their spat over why

the victim didn't return a "good afternoon."

Julia Osmun, 65, died as a result of her

altercation with Joelle O'Neill, 41, said

forensic investigator Bill Pellan. The death

was a homicide, the medical examiner

determined, because studies show the anxiety 3

of a confrontation can lead to heart

attacks, he said.

O'Neill, who is already serving time in the

Palm Beach County jail on cocaine charges,

was charged Thursday with second-degree

murder.

"If the lady hadn't been exposed to this

battery and gotten all worked up, she would

not have been dead 15 minutes later," said

detective Bill Fraser. "The medical examiner

concluded that stress is what caused her

death. And I happen to agree with her."

O'Neill told police she had gone to the

apartment building to visit her mother and

passed Osmun outside the front door. When

Osmun didn't reply to O'Neill's "good

afternoon," O'Neill confronted her.

Witnesses say O'Neill, who is black, and

Osmun, who was white, exchanged racial slurs,

then O'Neill snatched Osmun's glasses from

her face and pushed her to the ground.

O'Neill also mooned the older woman, records

show.

Minutes later Osmun, who already had heart

problems, began breathing heavily and told a

friend to take her to the hospital quickly

because she felt she was dying. She died

September 16, the day of the altercation.

"In this case there wasn't actually directly

trauma directly leading to the death," Pellan

said. "But had [ Osmun] not been involved in 4

this incident, she might be alive today."

This newspaper article was offered, according to Petitioner, "to

show that the opinions of Drs. Mufson and Hobin [who testified by

deposition] are the prevailing medical opinions on the issue of

sudden cardiac death occurrences." Respondent objected to the

admissibility of the article on the grounds that it is "hearsay

within hearsay, is uncorroborated, and of limited, if any,

relevancy, given major factual distinctions, such as a battering

of the victim." The article unquestionably constitutes hearsay

evidence, as Respondent contends. See Dollar v. State of

Florida , 685 So. 2d 901 (Fla. 5th DCA 1996)("A newspaper article,

introduced to prove the truth of out of court statements

contained therein, constitutes inadmissible hearsay [in a civil

proceeding]."). Its hearsay nature, however, does not render it

inadmissible in this administrative proceeding. See Silvia v.

Cumberland Farms, Inc. , 588 So. 2d 1069, 1071 (Fla. 4th DCA

1991); Johnson v. Department of Health and Rehabilitative

Services , 546 So. 2d 741, 743 (Fla. 1st DCA 1989); Harris v. Game

and Fresh Water Fish Commission , 495 So. 2d 806, 809 (Fla. 1st

DCA 1986). Nonetheless, the undersigned finds that the article

would add nothing of significant probative value to the

evidentiary record in this case and therefore he has not taken it

into consideration in making his findings of fact. 5

At the conclusion of the evidentiary portion of the hearing,

the undersigned, on the record, established a deadline (30 days

from the date of the undersigned's receipt of the transcript of

the hearing) for the filing of proposed recommended orders. The

hearing transcript was filed on June 17, 1999. On July 13, 1999,

the parties filed a Joint Motion for Extension of Time to File

Proposed Recommended Orders in the instant case. By Order issued

July 14, 1999, the parties' motion was granted and the filing

deadline was extended to July 27, 1999. On July 23 and 27, 1999,

respectively, Petitioner and Respondent filed their Proposed

Recommended Orders. 6 These post-hearing submittals have been

carefully considered by the undersigned.

FINDINGS OF FACT

1. Petitioner is the surviving spouse of Ralph Timmerman,

who died on January 23, 1998, at 48 years of age.

2. Petitioner and Mr. Timmerman had been married since

September 5, 1981.

3. They had two daughters, who are now four and thirteen

years of age.

4. Mr. Timmerman was a member of the Florida Retirement

System.

5. At the time of his death, Mr. Timmerman was employed by

Martin County as the Assistant Building Maintenance

Superintendent.

6. Mr. Timmerman had been Martin County's Building

Maintenance Superintendent until December of 1990, when he

suffered a heart attack and had five-vessel by-pass surgery.

7. Following his return to work, he was reassigned to the

position of Assistant Building Maintenance Superintendent. This

was a new supervisory position that had been specifically created

for him. By design, it was less demanding than the Building

Maintenance Superintendent position he had formerly held.

8. One of Mr. Timmerman's former subordinates, Harold

Markey, was tapped to succeed Mr. Timmerman as the Building

Maintenance Superintendent, a decision that Mr. Timmerman

supported.

9. As the Assistant Building Maintenance Superintendent,

Mr. Timmerman worked under Mr. Markey's supervision.

10. Mr. Markey made an effort to avoid assigning Mr.

Timmerman any tasks that, given Mr. Timmerman's history of heart

problems, might jeopardize Mr. Timmerman's health.

11. Mr. Timmerman's primary duties were to directly

supervise the building maintenance staff and to deal with

contractors hired by Martin County to perform building

maintenance and repair work.

12. Mr. Markey did not ask Mr. Timmerman to attend or make

presentations at Martin County Board of County Commissioners

meetings because he knew that Mr. Timmerman would feel

uncomfortable performing these duties.

13. Neither did Mr. Markey require Mr. Timmerman to do any

physically demanding work. In fact, whenever, he saw

Mr. Timmerman engaged in such physical labor, he would intervene

and instruct Mr. Timmerman to stop.

14. Whenever Mr. Timmerman indicated during the course of

the work day that he was tired or not feeling well, Mr. Markey

allowed Mr. Timmerman to leave work and go home. 7

15. Notwithstanding these accommodations made for him,

Mr. Timmerman, on a number of occasions, complained to Mr. Markey

about (what Mr. Timmerman perceived to be) Mr. Markey's lack of

understanding and compassion as a supervisor. He expressed these

views in a loud and argumentative manner. 8 As a general rule,

following these outbursts, Mr. Timmerman apologized to Mr. Markey

for the manner in which he had acted.

16. It was during such an outburst on January 23, 1998, at

his work site and during his normal working hours, that Mr.

Timmerman suffered cardiac arrest and subsequently died.

17. The day before, Mr. Timmerman and members of his staff

had attended a meeting with Mr. Markey. Among the subjects

discussed at the meeting was the response of Mr. Timmerman and

his staff to a water main break that had occurred at the Martin

County-operated library in Hobe Sound on January 20, 1998. The

discussion concerning this subject lasted approximately 15 to 20

minutes.

18. Mr. Markey was not at work on January 20, 1998, and

therefore it was Mr. Timmerman's responsibility to coordinate the

efforts to repair the break and remedy any water damage that had

occurred at the library.

19. Mr. Timmerman was notified of the water main break by

Teresa Van Cardo, a Martin County employee occupying the position

of Administrator Coordinator II for General Services.

20. After some time had passed, Ms. Van Cardo became

concerned that Mr. Timmerman had not yet arrived at the library.

She therefore telephoned Mr. Markey at home to express her

concerns about Mr. Timmerman's delay in responding to the scene.

( Huey Cummings, Martin County's lead plumber, however, was on the

scene and assessing the situation.)

21. After speaking with Ms. Van Cardo, Mr. Markey

telephoned Mr. Timmerman and told him that "he needed to get to

the site and he needed to make an assessment of it."

Mr. Timmerman replied that Huey Cummings was already at the

library.

22. When Mr. Timmerman came home from work that day he told

Petitioner about what had happened at the library and that he was

"very pleased at the way the whole situation was handled" by his

staff.

23. At the January 22, 1998, staff meeting (which was a

regularly scheduled meeting), Mr. Markey voiced his criticism of

the manner in which the staff had responded to the water main

break at the library two days before, 9 and he indicated what

improvements the staff needed to make in responding to similar

incidents in the future. It should not be necessary, he told his

subordinates at the meeting, for anyone to have to bother him at

home for guidance in dealing with a situation such as the one

that arose at the library.

24. At least one of the employees at the meeting (Patti

Smith) could sense (based upon her observations of

Mr. Timmerman's body movements as Mr. Markey spoke) that

Mr. Markey's comments upset Mr. Timmerman. Indeed, Mr. Timmerman

was upset. He felt that Mr. Markey's criticism was unwarranted,

and, after Mr. Markey had voiced his criticism, Mr. Timmerman

told Mr. Markey and the others at the meeting that, in his

opinion, "everybody responded exceptionally."

25. That evening, when he arrived home from work,

Mr. Timmerman was still upset about the negative comments that

Mr. Markey had made at the staff meeting earlier that day.

Mr. Timmerman shared with Petitioner what Mr. Markey had said at

the meeting and expressed his disappointment that Mr. Markey had

criticized, rather than praised, his subordinates.

26. The following morning (January 23, 1998), Mr. Timmerman

woke up at 5:30 a.m. He ate a small breakfast and, after

spending time with his youngest daughter, left for work at 6:30

a.m. He appeared to be "very calm" when he left.

27. Mr. Timmerman arrived at work at or about 7:00 a.m.

28. At around 7:30 a.m., Mr. Markey, at the request of

another employee, went to Mr. Timmerman's office (which was

located in a different building than Mr. Markey's office) and

requested that Mr. Timmerman not park his assigned Martin County-

vehicle in the staff parking lot (which was reserved for personal

vehicles). Mr. Timmerman reacted with displeasure to the

request. He told Mr. Markey, "This is bull crap," or at least

used words to that effect. Mr. Markey repeated his request and

then left Mr. Timmerman's office.

29. Shortly thereafter, Mr. Markey discovered that two

expensive vacuum cleaners were missing from the storage area

where they were supposed to be kept. A few months earlier,

Mr. Markey had instructed Mr. Timmerman to put up a "sign-out"

sheet outside the storage area for employees to sign whenever

they removed an item from the storage area. After discovering

that the vacuum cleaners were missing from the storage area,

Mr. Markey looked for, but did not find, such a "sign-out" sheet.

30. When he returned to the building where Mr. Timmerman's

office was located, Mr. Markey confronted Mr. Timmerman and asked

him where the vacuum cleaners were. Mr. Timmerman told

Mr. Markey that it was not his (Mr. Timmerman's) day to watch the

vacuum cleaners and that he did not know where they were.

Mr. Markey then said to Mr. Timmerman, "We need to get them

located today," to which Mr. Timmerman responded, "Well, later on

today, I will get somebody on it and we'll try to find them."

Mr. Markey was not satisfied with Mr. Timmerman's response. He

advised Mr. Timmerman that he wanted Mr. Timmerman, not someone

else, to look for the vacuum cleaners and that he wanted

Mr. Timmerman to look for them that morning, not later in the

day. He also told Mr. Timmerman that he expected Mr. Timmerman

to place a "sign-out" sheet outside the storage area before the

morning was over. Mr. Markey then walked away and left the

building.

31. When Mr. Markey was approximately 30 feet away,

Mr. Timmerman yelled out to him, "What do you have up your ass

today?" Mr. Markey stopped and replied, "Obviously you."

Mr. Markey then continued walking and returned to his office.

32. Approximately four or five minutes later, an obviously

very upset Mr. Timmerman stormed into Mr. Markey's office,

yelling and screaming that Mr. Markey mistreated his staff and

lacked understanding and compassion. Mr. Markey told

Mr. Timmerman to calm down so that they could discuss what was

bothering Mr. Timmerman. Mr. Timmerman, however, continued to

yell and scream. In fact, if anything, he became louder.

Mr. Markey made further attempts to persuade Mr. Timmerman to sit

down and talk calmly about his grievances, but these efforts were

to no avail. During his exchange with Mr. Timmerman, Mr. Markey,

like Mr. Timmerman, raised his voice.

33. Mr. Timmerman left Mr. Markey's office in a huff. As

he was walking down the hallway, he shouted back to Mr. Markey,

"I take-up for you all of the time with the guys," and then

added, "I treat you like a F-en prince, and this is what I get."

34. Mr. Timmerman then went into another employee's (Sharon

Barnes') office and started pacing back and forth. His face was

red and he was visibly agitated. Ms. Barnes told Mr. Timmerman

to calm down. He replied to her that it was "too late."

35. Mr. Timmerman thereupon returned to Mr. Markey's office

and continued his ranting. Mr. Markey shouted back at

Mr. Timmerman. When Mr. Markey told Mr. Timmerman to "sit down,"

Mr. Timmerman said that he "couldn't" and then turned to leave.

Mr. Markey asked where Mr. Timmerman was going. Mr. Timmerman

responded that he was going to take a ride in his truck.

36. As Mr. Timmerman exited Mr. Markey's office and walked

toward his truck, Mr. Markey followed behind him. Mr. Markey

believed that, given Mr. Timmerman's agitated emotional state,

Mr. Timmerman was in no condition to drive. He urged

Mr. Timmerman not to go to his truck.

37. Mr. Markey was ultimately able to convince

Mr. Timmerman to sit down on a bench outside the building where

Mr. Markey's office was located. Mr. Timmerman remained on the

bench, however, for just a couple of seconds before getting up

and walking away.

38. As Mr. Timmerman walked away, he continued to yell and

scream at Mr. Markey. Mr. Markey shouted back at Mr. Timmerman,

repeating his plea that Mr. Timmerman not drive off in his truck.

39. When Mr. Timmerman was approximately 20 feet from the

bench, he started breathing heavily and leaned against a wall for

support. Mr. Markey ran over to Mr. Timmerman to make sure that

he did not fall.

40. Mr. Markey again exhorted Mr. Timmerman to calm down.

Mr. Timmerman, as he had done previously, told Mr. Markey that he

"couldn't." Mr. Timmerman then collapsed in Mr. Markey's arms.

41. After gently lowering Mr. Timmerman to the ground,

Mr. Markey ran to Ms. Barnes' office window, which was

approximately ten or 15 feet away. When he got Ms. Barnes'

attention, he instructed her to "call 911."

42. Paramedics subsequently arrived on the scene. They

were unable to revive Mr. Timmerman. He was pronounced dead at

8:35 a.m. on January 23, 1998.

43. An autopsy was performed the following day by Frederick

Hobin, M.D., the Medical Examiner for the 19th Medical Examiner

District of Florida. Dr. Hobin is a Florida-licensed physician,

who is board-certified in anatomic, clinical, and forensic

pathology.

44. Following the completion of the autopsy, Dr. Hobin

prepared an autopsy report, which contained the following

findings and observations, among others (which the undersigned

accepts as accurate):

PATHOLOGIST'S OPINION

MECHANISM OF DEATH: SUDDEN CARDIAC DEATH DUE

TO ISCHEMIC CARDIOMYOPATHY

CAUSE OF DEATH: OCCLUSIVE CORONARY

ARTERIOSCLEROSIS

MANNER OF DEATH: NATURAL . . .

GROSS AUTOPSY PROTOCOL

EXTERNAL EXAMINATION . . .

INTERNAL EXAMINATION . . .

CARDIOVASCULAR SYSTEM

The heart weighs 680 grams. The increase in

weight is attributed to biventricular

hypertrophy. All of the chambers are

markedly dilated. There is a dense gray scar

throughout the posteroseptal myocardium.

There are some focal areas of hyperemia in

the inferior septum. The cardiac valves

appear functionally intact. The coronary

arteries have diffuse calcific occlusive

arteriosclerosis. There is indication of a

double remote bypass coronary graft

procedure. There is some sclerosis of both

of the grafts and one of the grafts appears

to have been occluded by thrombus material

throughout its entire length. The thrombus

material appears remote in age and it is gray

and friable. There is moderate

arteriosclerosis of the aorta with some

reduced elasticity. . . .

FINDINGS AT GROSS AUTOPSY

1. Arteriosclerotic cardiovascular disease.

2. Occlusive coronary artery disease.

3. Remote coronary artery bypass graft.

4. Remote thrombosis of coronary artery

graft.

5. Ischemic cardiomyopathy.

6. Healed posteroseptal myocardial

infarction. . . .

MICROSCOPIC EXAMINATION

HEART

There is marked hypertrophy of the myocardium

as well as very extensive scarring. This is

associated with sclerosis of the coronary

artery bypass grafts and they are occluded by

degenerated thrombus material. There appears

to be minimal fibrosis of the mitral valve.

Appended to Dr. Hobin's autopsy report were the written results

of laboratory tests that had been conducted in conjunction with

the autopsy. Such testing, according to the written results,

revealed the presence of cannabinoids (cannabis metabolites) in

Mr. Timmerman's blood. 10

45. Although at the time of his death, Mr. Timmerman (as

the autopsy reflected) was suffering from a chronic,

degenerative, life-threatening cardiovascular disease that had

evolved over a prolonged period of time, he was able to, and did

in fact, lead a relatively normal life notwithstanding his

disease. He was still able to work, and he continued his

employment with Martin County 11 until his death.

46. Mr. Timmerman, however, because of his disease, was

vulnerable to sudden cardiac death. Sudden cardiac death is a

term the medical profession uses to indicate that a person has

undergone a rapid, fatal deterioration as a result of an adverse

cardiac event. In most, but not all, instances, the adverse

cardiac event is an arrhythmia (as was the situation in Mr.

Timmerman's death). Emotional stress and excitement can produce

physiological changes that increase cardiac demand and

consequently may precipitate an arrhythmia that leads to sudden

cardiac death. Whether a particular incident or situation will

produce such a result depends, not only on the individual's

physical health, but on his or her emotional makeup as well.

47. In the instant case, it appears, within a reasonable

degree of medical probability, that work-related emotional

distress (which manifested itself during the confrontations

Mr. Timmerman had with Mr. Markey immediately preceding

Mr. Timmerman's death) aggravated Mr. Timmerman's preexisting

cardiovascular disease and thereby precipitated his demise.

CONCLUSIONS OF LAW

48. Petitioner is the surviving spouse of Ralph Timmerman,

who was a member of the Florida Retirement System (hereinafter

referred to as the "System") at the time of his death.

49. The "benefits payable under the [S] ystem" are described

in Section 121.091, Florida Statutes.

50. Subsection (7) of Section 121.091, Florida Statutes,

addresses the subject of "death benefits." It provides, in

pertinent part, as follows:

(d) Notwithstanding any other provision in

this chapter to the contrary, with the

exception of the Deferred Retirement Option

Program, as provided in subsection (13):

1. The surviving spouse of any member killed

in the line of duty may receive a monthly

pension equal to one-half of the monthly

salary being received by the member at the

time of death for the rest of the surviving

spouse's lifetime or, if the member was

vested, such surviving spouse may elect to

receive a benefit as provided in paragraph

(b). Benefits provided by this paragraph

shall supersede any other distribution that

may have been provided by the member's

designation of beneficiary.

51. "Death in line of duty," as used in Chapter 121,

Florida Statutes, is defined in Section 121.021(14), Florida

Statutes, as follows:

"Death in line of duty" means death arising

out of and in the actual performance of duty

required by a member's employment during his

or her regularly scheduled working hours or

irregular working hours as required by the

employer. The administrator may require such

proof as he or she deems necessary as to the

time, date, and cause of death, including

evidence from any available witnesses.

Workers' compensation records under the

provisions of chapter 440 may also be used.

See also Rule 60S-6.001(21), Florida Administrative

Code ("DEATH IN LINE OF DUTY-- Means death arising out

of and in the actual performance of duty required by a

member's employment during his regularly scheduled

working hours or irregular working hours as required by

the employer.").

52. A deceased member's surviving spouse is entitled to "in

line of duty" death benefits pursuant to Section 121.091(7)(d)1,

Florida Statutes, if an injury or illness, arising out of and in

the actual performance of a duty required by the member's

employment, was the substantial producing cause or an aggravating

cause of the member's death. See Westbrook v. Division of

Retirement , 699 So. 2d 813, 814 (Fla. 1st DCA 1997); Glisson v.

Department of Management Services, Division of Retirement , 621

So. 2d 543, 544 (Fla. 1st DCA 1993); Burd v. Division of

Retirement , 581 So. 2d 973, 974 (Fla. 1st DCA 1991); Dixon v.

Department of Administration, Division of Retirement , 481 So. 2d

52, 54 (Fla. 1st DCA 1985); Blanton v. Division of Retirement ,

480 So. 2d 134, 135 (Fla. 1st DCA 1985).

53. The surviving spouse has the burden of proving his or

her entitlement to "in line of duty" death benefits. See Glisson

v. Department of Management Services, Division of Retirement , 621

So. 2d 543, 544 (Fla. 1st DCA 1993); Dixon v. Department of

Administration, Division of Retirement , 481 So. 2d 52, 54 (Fla.

1st DCA 1985); Blanton v. Division of Retirement , 480 So. 2d 134,

135 (Fla. 1st DCA 1985).

54. The causal connection between the work-related injury

or illness and the member's death must be established by the

surviving spouse within a reasonable degree of medical

probability. "Medical certainty is not the legal test for

causation"; nor is medical possibility. Pridgeon v. Division of

Retirement , 662 So. 2d 1028, 1030 (Fla. 1st DCA 1995).

55. To meet his or her burden of proof, the surviving

spouse need only show that the member had a work-related injury

or illness that was an aggravating cause of the member's death.

It is not necessary for the surviving spouse to demonstrate that

the work-related injury or illness was the sole or major cause of

death. See Otero v. State Retirement Commission , 720 So. 2d

1147, 1148 (Fla. 5th DCA 1998); Westbrook v. Division of

Retirement , 699 So. 2d 813, 814 (Fla. 1st DCA 1997).

56. The work-related injury or illness may be an emotional

one that was the product of the member's reaction to job stress

or strain. See Andersen v. Division of Retirement , 538 So. 2d

929 (Fla. 1st DCA 1989); Dixon v. Department of Administration,

Division of Retirement , 481 So. 2d 52 (Fla. 1st DCA 1985);

Division of Retirement v. Allen , 395 So. 2d 1192 (Fla. 1st DCA

1981); Wilkinson v. Department of Management Services, Division

of Retirement , 1993 WL 944124 (Fla. DOAH 1993)(Recommended

Order); Clemmons v. Department of Administration, Division of

Retirement , 1992 WL 880509 (Fla. DOAH 1992)(Recommended Order). 12

57. The stress or strain need not have been unusual or

atypical for the position held by the member. See Dixon v.

Department of Administration, Division of Retirement , 481 So. 2d

52 (Fla. 1st DCA 1985); Division of Retirement v. Allen , 395 So.

2d 1192 (Fla. 1st DCA 1981); Division of Retirement v. Putnam ,

386 So. 2d 824, 825 (Fla. 1st DCA 1980).

58. That the member had a preexisting, non-work-related

medical condition that made him or her more vulnerable than the

average employee to experiencing a fatal reaction to job stress

or strain does not foreclose an award of "in line of duty" death

benefits to the member's surviving spouse. If the surviving

spouse is able to establish, within a reasonable degree of

medical probability, a causal connection between the working

conditions the member found to be stressful and the member's

death, "in line of duty" death benefits will be awarded

notwithstanding that the average employee would not have

succumbed under similar circumstances. See Westbrook v. Division

of Retirement , 699 So. 2d 813, 814 (Fla. 1st DCA 1997); Burd v.

Division of Retirement , 581 So. 2d 973, 974 (Fla. 1st DCA 1991);

Dixon v. Department of Administration, Division of Retirement ,

481 So. 2d 52 (Fla. 1st DCA 1985); Havener v. Division of

Retirement , 461 So. 2d 231, 233 (Fla. 1st DCA 1984); Division of

Retirement v. Allen , 395 So. 2d 1192 (Fla. 1st DCA 1981);

Bolinger v. Division of Retirement , 335 So. 2d 569, 570 (Fla.

1976); cf . Lum vi-State Insurance Company , 252 So. 2d 157,

160 (La. App. 2d Cir. 1971)("It is elementary that employers take

employees as they find them.").

59. In the instant case, Petitioner has established, within

a reasonable degree of medical probability, the existence of such

a causal relationship. It is apparent from Mr. Timmerman's

words 13 and actions that, immediately preceding his death, he was

suffering from a severe emotional disturbance resulting from his

reaction to the manner in which he and his staff were treated by

his supervisor, Mr. Markey. It further appears, given the timing

and other circumstances surrounding Mr. Timmerman's death,

considered in conjunction with the greater weight of the expert

medical testimony presented at hearing (via deposition), 14 that,

within a reasonable degree of medical probability,

Mr. Timmerman's work-related emotional disturbance aggravated his

pre-existing heart condition and precipitated his death.

60. Accordingly, Petitioner is entitled to receive "in line

of duty" death benefits from the account of her late husband.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that the Division of Retirement issue a final

order finding that Petitioner is qualified to receive "in line of

duty" death benefits from the account of her late husband, Ralph

Timmerman.

DONE AND ENTERED this 13th day of August, 1999, in

Tallahassee, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of August, 1999.

ENDNOTES

1/ The hearing was originally scheduled to commence on March 3,

1999, but was continued at the request of Respondent.

2/ Three of these exhibits were depositions of medical experts:

Frederick Hobin, M.D., the Medical Examiner for the 19th Medical

Examiner District of Florida, who performed the autopsy on

Mr. Timmerman's body; Lawrence Mufson, M.D., Mr. Timmerman's

cardiologist; and Andre Jawde, M.D., a cardiac surgeon, who gave

expert testimony on behalf of Respondent. Two other exhibits

were depositions of two of Mr. Timmerman's co-workers, Patti

Smith and Sharon Barnes.

3/ It is unclear from a reading of the article whether the

"studies" referenced in the article dealt with a physical

confrontation, a verbal confrontation (like the one that preceded

Mr. Timmerman's death in the instant case), or a hybrid of these

two types of confrontations; neither does the article reveal who

performed these studies or any other information that might shed

light on the scientific validity of these studies.

4/ There is not adequate information to determine whether the

individuals whose medical opinions are set forth in the article

have the requisite expertise to render such opinions.

5/ The undersigned also deferred ruling on Respondent's Exhibit

3, a Notice of Denial sent by Mr. Timmerman's employer's workers'

compensation insurance carrier to the Florida Department of Labor

and Employment Security, Division of Workers' Compensation, on

February 5, 1999, denying, "on the issue of compensability," a

claim concerning Mr. Timmerman and stating the following reasons

for the denial:

1. Employee's medical condition was personal

to him and not the result of his employment.

2. Employee did not have accident or injury

arising out of the course and scope of

employment.

3. Any other valid reason which may

hereafter appear.

At the close of the final hearing, the undersigned advised the

parties that, with respect to Petitioner's Exhibit 7 and

Respondent's Exhibit 5, "If the offering party does not present

argument [in that party's proposed recommended order] concerning

the admissibility of those exhibits, I will assume that the offer

of those exhibits has been withdrawn." In her Proposed

Recommended Order, Petitioner presented argument regarding the

admissibility of Petitioner's Exhibit 7. Respondent's Proposed

Recommended Order, however, does not contain any argument

concerning the admissibility of Respondent's Exhibit 5.

Accordingly, Respondent's Exhibit 5 is deemed to have been

withdrawn. (In any event, it does not appear that the

disposition of the workers' compensation claim that is the

subject of Respondent's Exhibit 5 should have any bearing on the

outcome of the instant case. See Dixon v. Department of

Administration, Division of Retirement , 481 So. 2d 52, 54 (Fla.

1st DCA 1985)("The Commission is apparently applying the test

used in workers' compensation cases to internal failure

situations, requiring that for an accident to arise out of

employment, the claimant must show unusual strain or stress

resulting from a specifically identifiable effort not routine to

the type of work the claimant was accustomed to performing. . . .

We have consistently refused to apply this standard to retirement

disability benefit cases under Section 121.021(13).").

6/ Respondent filed an Amended Proposed Recommended Order on

July 29, 1999, "to correct certain scrivener's errors."

7/ This occurred at least twice a month.

8/ This conduct contrasted sharply with his behavior at home,

where he acted in an easygoing and laid back manner.

9/ He did not single-out any staff member for criticism.

10/ There is no record evidence indicating that there was any

causal relationship between the cannabinoids detected in Mr.

Timmerman's blood and his death.

11/ Although aware of Mr. Timmerman's heart problems, Martin

County did not take any action to terminate his employment on the

ground that he was unable to perform his job duties.

12/ In both the Wilkinson case (where it was found that the

member's "mental condition was caused or aggravated by the stress

resulting from his employment with the Manatee County Sheriff's

Department, and that his [death by] suicide was the result of his

mental illness"] and the Clemmons case (where it was found that

"the precipitating cause of death [of the member, who was

employed as a correctional officer] was his emotional reaction to

acute stress following [an] altercation with [an] [ i] nmate"), the

Division of Retirement adopted the recommendation of the Hearing

Officer that the member's surviving spouse receive "in line of

duty" death benefits.

13/ The statements that Mr. Timmerman made (the day of his death

and the day before) in which he expressed his feelings regarding

the treatment he and his staff received from Mr. Markey fall

within the "then-existing state of mind" exception to the hearsay

rule described in Section 90.803(3), Florida Statutes.

14/ Where medical experts express conflicting opinions in their

testimony, it is "the duty and responsibility of the

[Administrative Law Judge] . . . to accept the opinion of the

expert or experts he determine[s] to be comportable with logic

and reason, taking into consideration all of the other pertinent

evidence he ha[s] before him." Reed v. Whitmore Electric

Company , 141 So. 2d 569, 571 (Fla. 1962). The undersigned has

determined that the expert opinion testimony of Drs. Hobin and

Mufson, to the extent that it conflicts with Dr. Jawde's expert

opinion testimony, is more " comportable with logic and reason,

taking into consideration all of the other pertinent evidence,"

and therefore he has credited their testimony over Dr. Jawde's

testimony to the contrary.

COPIES FURNISHED:

Robert B. Button, Esquire

Division of Retirement

Cedars Executive Center

Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Stanley M. Danek, Esquire

2114 Great Oak Drive

Tallahassee, Florida 32303

A. J. McMullian, III, Director

Division of Retirement

Cedars Executive Center

Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this R ecommended O rder. Any exceptions to

this R ecommended O rder should be filed with the agency that will

issue the F inal O rder in this case.

1 The hearing was originally scheduled to commence on March 3,

1999, but was continued at the request of Respondent.

2 Three of these exhibits were depositions of medical experts:

Frederick Hobin, M.D., the Medical Examiner for the 19th Medical

Examiner District of Florida, who performed the autopsy on Mr.

Timmerman's body; Lawrence Mufson, M.D., Mr. Timmerman's

cardiologist; and Andre Jawde, M.D., a cardiac surgeon, who gave

expert testimony on behalf of Respondent.

3 It is unclear from a reading of the article whether the

"studies" referenced in the article dealt with a physical

confrontation, a verbal confrontation (like the one that preceded

Mr. Timmerman's death in the instant case), or a hybrid of these

two types of confrontations; neither does the article reveal who

performed these studies or any other information that might shed

light on the scientific validity of these studies.

4 There is not adequate information to determine whether the

individuals whose medical opinions are set forth in the article

have the requisite expertise to render such opinions.

5 The undersigned also deferred ruling on Respondent's Exhibit

3, a Notice of Denial sent by Mr. Timmerman's employer's workers'

compensation insurance carrier to the Florida Department of Labor

and Employment Security, Division of Workers' Compensation, on

February 5, 1999, denying, "on the issue of compensability," a

claim concerning Mr. Timmerman and stating the following reasons

for the denial:

1. Employee's medical condition was personal

to him and not the result of his employment.

2. Employee did not have accident or injury

arising out of the course and scope of

employment.

3. Any other valid reason which may

hereafter appear.

At the close of the final hearing, the undersigned advised the

parties that, with respect to Petitioner's Exhibit 7 and

Respondent's Exhibit 5, "If the offering party does not present

argument [in that party's proposed recommended order] concerning

the admissibility of those exhibits, I will assume that the offer

of those exhibits has been withdrawn." In her Proposed

Recommended Order, Petitioner presented argument regarding the

admissibility of Petitioner's Exhibit 7. Respondent's Proposed

Recommended Order, however, does not contain any argument

concerning the admissibility of Respondent's Exhibit 5.

Accordingly, Respondent's Exhibit 5 is deemed to have been

withdrawn. (In any event, it does not appear that the

disposition of the workers' compensation claim that is the

subject of Respondent's Exhibit 5 should have any bearing on the

outcome of the instant case. See Dixon v. Department of

Administration, Division of Retirement , 481 So. 2d 52, 54 (Fla.

1st DCA 1985)("The Commission is apparently applying the test

used in workers' compensation cases to internal failure

situations, requiring that for an accident to arise out of

employment, the claimant must show unusual strain or stress

resulting from a specifically identifiable effort not routine to

the type of work the claimant was accustomed to performing. . . .

We have consistently refused to apply this standard to retirement

disability benefit cases under Section 121.021(13).").

6 Respondent filed an Amended Proposed Recommended Order on July

29, 1999. "to correct certain scrivener's errors."

7 This occurred at least twice a month.

8 This conduct contrasted sharply with his behavior at home,

where he acted in an easygoing and laid back manner.

9 He did not single out any staff member for criticism.

10 There is no record evidence indicating that there was any

causal relationship between the cannabinoids detected in Mr.

Timmerman's blood and his death.

11 Although aware of Mr. Timmerman's heart problems, Martin

County did not take any action to terminate his employment on the

ground that he was unable to perform his job duties.

12 In both the Wilkinson case (where it was found that the

member's "mental condition was caused or aggravated by the stress

resulting from his employment with the Manatee County Sheriff's

Department, and that his [death by] suicide was the result of his

mental illness"] and the Clemmons case (where it was found that

"the precipitating cause of death [of the member, who was

employed as a correctional officer] was his emotional reaction to

acute stress following [an] altercation with [an] [ i] nmate"), the

Division of Retirement adopted the recommendation of the Hearing

Officer that the member's surviving spouse receive "in line of

duty" death benefits.

13 The statements that Mr. Timmerman made (the day of his death

and the day before) in which he expressed his feelings regarding

the treatment he and his staff received from Mr. Markey fall

within the "then-existing state of mind" exception to the hearsay

rule described in Section 90.803(3), Florida Statutes.

14 Where medical experts express conflicting opinions in their

testimony, it is "the duty and responsibility of the

[Administrative Law Judge] . . . to accept the opinion of the

expert or experts he determine[s] to be comportable with logic

and reason, taking into consideration all of the other pertinent

evidence he ha[s] before him." Reed v. Whitmore Electric

Company , 141 So. 2d 569, 571 (Fla. 1962). The undersigned has

determined that the expert opinion testimony of Drs. Hobin and

Mufson, to the extent that it conflicts with Dr. Jawde's expert

opinion testimony, is more " comportable with logic and reason,

taking into consideration all of the other pertinent evidence,"

and therefore he has credited their testimony over Dr. Jawde's

testimony to the contrary.