99-000706
Melton Nelson vs.
Department Of Management Services, Division Of Retirement
Status: Closed
Recommended Order on Monday, August 7, 2000.
Recommended Order on Monday, August 7, 2000.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MARILYN NELSON, )
11)
12Petitioner, )
14)
15vs. ) Case No. 99-0706
20)
21DEPARTMENT OF MANAGEMENT SERVICES, )
26DIVISION OF RETIREMENT, )
30)
31Respondent. )
33___________________________________)
34RECOMMENDED ORDER
36Pursuant to notice, a formal hearing was held in this case
47on February 29, 2000, in Fernandina Beach, Florida, before the
57Division of Administrative Hearings, by its designated
64Administrative Law Judge, Stephen F. Dean.
70APPEARANCES
71For Petitioner: Gary Baker, Esquire
76Post Office Box 1177
80Callahan, Florida 32011
83For Respondent: Emily Moore, Esquire
88Division of Retirement
912639 North Monroe Street
95Building D, Suite 23 0
100T allahassee, Florida 32399-1560
104STATEMENT OF THE ISSUE
108Whether Petitioner, Marilyn Nelson, the surviving spouse of
116Melton Nelson, is entitled to in-the-line-of-duty death
123benefits.
124PRELIMINARY STATEMENT
126This case arose from the Division of Reti rement's
135(Respondent) denial of Petitioner's Marilyn Nelson's request for
143in-the-line-of-duty (ILOD) death benefits on the account of the
152later Melton Nelson, a member of the Florida Retirement System
162(FRS).
163By final agency action letter, dated September 22, 1998,
172Respondent denied the request of Marilyn Nelson for ILOD death
182benefits. Petitioner timely filed a request for hearing and the
192case was referred to the Division of Administrative Hearings for
202the purpose of disposing of the Petition by Recommended Order.
212Petitioner, represented by counsel, appeared and testified
219on her own behalf, but presented no other witnesses. Petitioner
229introduced Exhibit Nos. 1-4 which were received into evidence.
238Respondent presented the testimony of its representative,
245Stanley Colvin, Administrator, Survivor Benefits Section, Bureau
252of Benefit Payments, and of the following staff of the Nassau
263County Public Works Department: Jack D.'Amato, Director of
271Public Works (supervisor of Melton Nelson); George Hartman,
279Assistant Road and Bridge Superintendent (co-worker and
286successor of Melton Nelson); William Johnson, (co-worker of
294Melton Nelson); and Lew Eason, Supervisor of the Human Relations
304Department. Respondent's Exhibits 1 through 12 were also
312received into evidence.
315Respondent also filed a Motion for Official Recognition of
324relevant statutes and rules; the motion was granted. A
333transcript was not ordered.
337At the close of the hearing, Respondent noted the absence
347of medical evidence establishing ILOD death and moved for a
357recommended order denying the Petition. Petitioner moved to
365keep the record open to present medical evidence in the form of
377deposition testimony.
379Petitioner's motion was granted, and Petitioner was allowed
38714 days (until March 14, 2000) to schedule the deposition of a
399licenses medical doctor. Petitioner failed to schedule a
407deposition, but filed the March 20, 2000, Sworn Statement of
417Arthur Forbes, a Physician's Assistant on or about May 22, 2000.
428Respondent moved to strike the sworn statement and close the
438record. Respondent's motion to strike was granted by Order of
448this tribunal issued June 20, 2000. This Order also provided
458that, "[I]n the absence of the setting of the Forbes'
468deposition, in 10 days (June 30, 2000) the record in this case
480will be closed, and the parties will have until July 24, 2000,
492to file their proposed findings."
497On July 7, 2000, Respondent received a Notice of Taking
507Deposition of Arthur Forbes, mailed on July 5, 2000, setting the
518deposition at noon on Monday, July 17, 2000. On the morning of
530the scheduled deposition, the court reporter's office called to
539advise the undersigned that Mr. Baker's office had cancelled the
549deposition because the witness was not served by the Sheriff's
559department. The deposition was not rescheduled, and has not
568been taken.
570Respondent filed Proposed Findings of Fact which were read
579and considered. Petitioner did not file proposed findings.
587FINDINGS OF FACT
5901. Petitioner, Marilyn Nelson, is the surviving spouse of
599Melton Nelson, who died on May 7, 1998. Petitioner and Melton
610Nelson had been married since June 15, 1997.
6182. At the time of his death, Mr. Nelson was employed by
630Nassau County as the Assistant Road and Bridge Superintendent.
639He had been so employed for about 3 years.
6483. Don ald B. Twiggs, M.D., was Mr. Nelson's treating
658physician. Dr. Twiggs, completed Mr. Nelson's Death
665Certificate, which states that Mr. Nelson died from
673cardiopulmonary arrest and coronary artery disease. There was
681no autopsy to determine the cause of death.
6894. During the course of his employment, Mr. Nelson was
699absent due to colds and other minor illnesses. His absences
709were not excessive and he had not complained either to his
720supervisor or to the personnel office of stress on the job.
731Further, Mr. Nelson did not advise his employer that his job was
743affecting his health or request accommodations based upon his
752physical condition.
7545. Marilyn Nelson was not aware that Mr. Nelson had heart
765problems.
7666. Mr. Nelson was being treated by Dr. Twiggs for ad ult
778onset diabetes, hypertension, and anxiety.
7837. As Assistant Road and Bridge Superintendent, Mr.
791Nelson's job was demanding and he often was on call due to road
804and bridge repairs. He supervised and assigned crews, but was
814not required customarily to do physically demanding work.
8228. Mr. Nelson was a "laid-back" supervisor who did not
832confront or correct his staff. He had the backing of management
843to discipline his subordinates. The employer was satisfied with
852Mr. Nelson's work performance. There were no confrontations or
861arguments between Mr. Nelson and his supervisor, and he was
871never "dressed-down" or threatened with loss of his job.
8809. Mr. Nelson reported to work about 7:00 a.m. on May 7,
8921998. After a brief conversation with fellow workers and some
902of his subordinates, he walked back to his truck and collapsed.
913William Johnson, one of his subordinates, observed that Mr.
922Nelson "did not look good" and was "kinda red in the face."
934However, there had been no altercation, argument or
942confrontation, and Mr. Nelson did not appear upset.
95010. The Respondent denied Marilyn Nelson's application for
958in-line-of-duty (ILOD) death benefits, advising that, although
965Mr. Nelson suffered a heart attack while on the job, which
976resulted in his death, the heart attack was not caused by any
988job-related accident or injury.
99211. Marilyn Nelson's claim for death benefits was also
1001denied by Workers' Compensation, which found that the injury was
1011personal in nature and not job related.
101812. Marilyn Nelson presented no expert medical testimony
1026to support her claim that Mr. Nelson's death arose out of the
1038performance of his job duties.
1043CONCLUSIONS OF LAW
104613. The Division of Administrative Hearings has
1053jurisdiction over this subject matter and the parties to this
1063action pursuant to Section 120.57(1), Florida Statutes.
107014. Marilyn Nelson is the surviving spouse of Melton
1079Nelson, who was a member of the FRS at the time of his death.
109315. The Petitioner has the burden of proof in these
1103proceedings. Young v. State, Department of Community Affairs ,
1111625 So. 2d 831 (Fla. 1993). Petitioner must demonstrate by a
1122preponderance of competent evidence that she is entitled to the
1132benefit she seeks. Agrico Chemical Co v. State Department of
1142Environmental Regulation , 365 So. 2d 759 (Fla. 1st DCA 1978).
115216. Section 120.021(14), Florida Statutes, provides:
1158(14) "Death-in-line-of-duty" means death
1162arising out of and in the actual performance
1170of duty required by a member's employment
1177during his or her regularly scheduled
1183working hours or irregular working hours as
1190required by the employer. The administrator
1196may require such proof as he or she deems
1205necessary as to the time, date, and cause of
1214death, including evidence from any available
1220witnesses. Workers' compensation records
1224under the provisions of Chapter 440 may also
1232be used.
123417. Petitioner has the burden of proving her entitlement
1243to ILOD death benefits. In such a case, competent medical
1253evidence is probative of causation and required by rule. The
1263Division of Retirement is guided by the rules of the State
1274Retirement Commission as to what constitutes competent medical
1282evidence. Rule 60R-1.00481, Florida Administrative Code,
1288provides:
1289(1) Competent medical evidence of total and
1296permanent disability is required for a
1302determination of disability retirement
1306eligibility.
1307(2) Competent medical evidence of total and
1314permanent disability requires testimony of a
1320licensed physician, either at the hearing,
1326or in a deposition, in which the member and
1335the Division of Retirement had an
1341opportunity to participate.
1344(3) In cases of eligibility for in the line
1353of duty disability benefits, competent
1358medical evidence shall be required showing
1364that an injury or illness, arising out of
1372and in the actual performance required by
1379the member's employment, was the substantial
1385producing cause or aggravating cause of the
1392member's total and permanent disability.
1397(4) Medical records may be admitted as
1404hearsay, but shall be insufficient for a
1411finding of disability retirement
1415eligibility.
141618. Petitio ner must establish, to a reasonable degree of
1426medical probability, a causal relationship between the heart
1434attack which led to Mr. Nelson's death, and the actual
1444performance of his duties. Timmerman v. Division of Retirement ,
1453DOAH Case No. 98-5203.
145719. Petitioner did not produce any expert medical
1465testimony regarding a causal relationship between the heart
1473attack which led to Mr. Nelson's death and the performance of
1484his duties. Petitioner failed to carry her burden of proof.
149420. Accordingly, Petition er has not established that she
1503is entitled to receive ILOD death benefits from the FRS account
1514of her late husband.
1518RECOMMENDATION
1519Based upon the Findings of Fact and Conclusions of Law,
1529it is
1531RECOMMENDED:
1532That a final order be entered by the Depart ment of
1543Management Services, Division of Retirement holding that
1550Petitioner's application for ILOD death benefits from the
1558account of her late husband, Melton Nelson be denied.
1567DONE AND ENTERED this 7th day of August, 2000, in
1577Tallahassee, Leon County, Florida.
1581___________________________________
1582STEPHEN F. DEAN
1585Administrative Law Judge
1588Division of Administrative Hearings
1592The DeSoto Building
15951230 Apalachee Parkway
1598Tallahassee, Florida 32399-3060
1601(850) 488-9675 SUNCOM 278-9675
1605Fax Filing (850) 921-6847
1609www.doah.state.fl.us
1610Filed with the Clerk of the
1616Division of Administrative Hearings
1620this 7th day of August , 2000.
1626COPIES FURNISHED:
1628Emily Moore, Esquire
1631Division of Retirement
1634Cedar Executive Center, Building D
16392639 North Monroe Street
1643Tallahassee, Florida 32399-1560
1646Gary Baker, Esquire
1649Post Office Box 1177
1653Callahan, Florida 32011
1656Ron Poppell, Interim Director
1660Division of Retirement
1663Cedars Executive Center, Building C
16682639 North Monroe Street
1672Tallahassee, Florida 32399-1560
1675Bruce Hoffmann, General Counsel
1679Department of Management Services
16834050 Esplanade Way
1686Tallahassee, Florida 32399-0950
1689NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1695All parties have the right to submit written exceptions within
170515 days from the date of this Recommended Order. Any exceptions
1716to this Recommended Order should be filed with the agency that
1727will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 12/01/2000
- Proceedings: Final Order filed.
- Date: 08/09/2000
- Proceedings: Motion to Extend Time for Filing Proposed Recommended Order (Petitioner) filed.
-
PDF:
- Date: 08/07/2000
- Proceedings: Recommended Order issued (hearing held February 29, 2000) CASE CLOSED.
- Date: 07/24/2000
- Proceedings: Proposed Recommended Order (E. Moore) filed.
- Date: 07/24/2000
- Proceedings: Proposed Recommended Order. (filed by G. Baker via facsimile)
- Date: 07/20/2000
- Proceedings: Notice of Taking Deposition-A. Forbes filed.
- Date: 06/20/2000
- Proceedings: Order Granting Motion to Strike the Sworn Statement of Arthur Forbes sent out.
- Date: 06/09/2000
- Proceedings: Motion to Strike Sworn Statement of Arthur Forbes (Respondent) (filed via facsimile).
- Date: 06/09/2000
- Proceedings: Motion to Close Record and Dismiss Petition or, in the Alternative, to Close Record and set Date for Filing Proposed Recommended Orders (Respondent) (filed via facsimile).
- Date: 05/15/2000
- Proceedings: Sworn Statement of Arthur Forbes filed.
- Date: 05/09/2000
- Proceedings: Letter to G. Baker from E. Moore Re: Petitioner`s Exhibits (filed via facsimile).
- Date: 02/29/2000
- Proceedings: CASE STATUS: Hearing Held.
- Date: 02/28/2000
- Proceedings: (Respondent) Motion for Official Recognition; (Respondent) Amended Notice of Filing filed.
- Date: 02/24/2000
- Proceedings: (Respondent) Motion to Allow Testimony of Agency Representative by Phone (filed via facsimile).
- Date: 02/11/2000
- Proceedings: (Respondent) Motion to Compel (filed via facsimile).
- Date: 01/10/2000
- Proceedings: Notice of Hearing sent out. (hearing set for February 29, 2000; 1:00 p.m.; Fernandina Beach, FL)
- Date: 12/01/1999
- Proceedings: Response to November 17,1999, Order Continuing Case in Abeyance (filed via facsimile).
- Date: 11/17/1999
- Proceedings: Order Continuing Case in Abeyance sent out. (Parties to advise status by November 30, 1999.)
- Date: 07/29/1999
- Proceedings: Order Cancelling Hearing and Abating Case sent out. (Parties to advise status by 09/29/1999)
- Date: 07/20/1999
- Proceedings: (Respondent) Notice of Filing; Respondent`s 9/22/98, Final Agency Action Letter; Respondent`s 7/23/99, Letter of Intent to Deny Benefits filed.
- Date: 07/19/1999
- Proceedings: Memo to G. Baker from E. Moore Re: Conference call (filed via facsimile).
- Date: 07/15/1999
- Proceedings: Notice of Service of Respondent`s First Interrogatories to Petitioner (filed via facsimile).
- Date: 07/15/1999
- Proceedings: Letter to G. Baker from E. Moore Re: Status of Motion for Continuance (filed via facsimile).
- Date: 07/08/1999
- Proceedings: Notice of Service of Respondent`s First Interrogatories to Petitioner; Respondent`s Request for the Production of Documents filed.
- Date: 06/21/1999
- Proceedings: Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for 10:15am; Fernandina Beach; 7/28/99)
- Date: 06/18/1999
- Proceedings: Fax cover sheet memo to Judge Dean from E. Moore Re: No objection to Motion for Continuance (filed via facsimile).
- Date: 06/17/1999
- Proceedings: Respondent`s Motion for Continuance (filed via facsimile).
- Date: 03/29/1999
- Proceedings: Notice of Hearing and Order sent out. (hearing set for 6/23/99; 10:15am; Fernandina Beach)
- Date: 03/18/1999
- Proceedings: Letter to Judge from E. Moore re: Reply to Initial Order (filed via facsimile) rec`d
- Date: 02/19/1999
- Proceedings: Initial Order issued.
- Date: 02/17/1999
- Proceedings: Notice of Election to Request Assignment of Administrative Law Judge rec`d
- Date: 02/17/1999
- Proceedings: Petition (letter form); Agency Action Letter (filed via facsimile).