Alsobrook v. State, Div. of Retirement, 91-430
| Decision Date | 20 May 1992 |
| Docket Number | No. 91-430,91-430 |
| Citation | 600 So.2d 1173 |
| Parties | Ruth P. ALSOBROOK, Appellant, v. STATE of Florida, DIVISION OF RETIREMENT, Appellee. 600 So.2d 1173, 76 Ed. Law Rep. 255, 17 Fla. L. Week. D1320 |
| Court | Florida District Court of Appeals |
Robert F. McKee, Kelly & McKee, P.A., Tampa, for appellant.
Stanley M. Danek, Div. Atty., Div. of Retirement, Tallahassee, for appellee.
Appellant, Ruth P. Alsobrook, appeals the order of the State Retirement Commission sustaining the denial of regular and in-line-of-duty disability retirement benefits by the State Division of Retirement. We affirm.
Appellant was employed by the Pasco County School Board for a total of approximately twenty-three years and testified that she had experienced on the job accidents in 1980 and 1986 which resulted in total and permanent disability. She had earlier filed an application for regular and in-line-of-duty disability retirement benefits with the Division of Retirement. After her application was denied, appellant then filed a petition for an administrative hearing before the State Retirement Commission. By letter of October 23, 1989, the Commission notified appellant that all documents, including depositions, that either party might want to offer into evidence, and the names and addresses of potential witnesses, must be received by the Commission at least ten days prior to the final hearing. On May 9, 1990, appellant's attorney filed a motion with the Commission to continue the hearing, which had been scheduled to commence on May 21, 1990. Counsel's motion advised the Commission that he had just recently been retained to represent appellant, and could not adequately prepare for the hearing within the time frame contemplated. By order dated May 21, 1990, the Commission granted the motion for continuance. By "Notice of Hearing" dated October 22, 1990, appellant was notified that her claim was to be heard on November 12, 1990, on which day the hearing was held.
At the commencement of the hearing, appellant's counsel moved to admit into evidence the depositions of two expert witnesses, Dr. Ruiz and Dr. Piper, which depositions had not previously been filed with the Commission as is required by Rule 22J-1.0042, Florida Administrative Code (). As to Dr. Ruiz's deposition, appellant's attorney explained that he did not discover until just prior to the commencement of the hearing that, due to "clerical error," the copies of the deposition transcripts which should have been sent to the Retirement Commission pursuant to the rule were sent, instead, to the Division of Retirement. 1 Appellant also attempted to introduce into evidence the deposition of Dr. Piper despite its tardiness, explaining that Dr. Piper had cancelled numerous previously scheduled depositions and did not make himself available for deposition until early on the morning of the hearing. After deferring to her fellow Commission members, the Commission chairperson refused to waive the ten day requirement, and the deposition testimony of both expert witnesses was not admitted into evidence.
In the alternative, counsel requested a second continuance in order that the deposition testimony, which he termed vital to presentation of appellant's case, could be submitted to the Commission. Again, after giving her fellow Commissioners an opportunity to veto her decision, the chairperson refused again to waive the ten day rule or to grant another continuance and the hearing proceeded. From a final order issued by the Commission sustaining the determination of the Division of Retirement, appellant seeks review.
Relevant to the present appeal is Florida Administrative Code Rule 22J-1.0042, which provides:
Copies of all documents to be offered in evidence at hearing, including depositions, shall be furnished to the Commission by the offering party at least 10 days prior to the hearing. Documents not furnished to the Commission within the proscribed time limit shall be excluded from evidence at hearing, except that the chairperson may waive this rule for good cause shown and except that this rule shall not require the exclusion of rebuttal evidence.
In addition, Florida Administrative Code Rule 22J-1.0046 provides in part:
Continuances may be granted only for good cause and within the discretion of the chairperson or upon stipulation of the parties with the consent of the chairperson. Requests for continuance shall be made in writing. Except in cases of extreme emergency, no request for a continuance will be granted unless made at least 10 days prior to the date of the noticed hearing.
In cases such as this, where evidence which might have resulted in a favorable resolution of a party's claim has been excluded from consideration because of that party's counsel's failure to comply with procedural rules, it is often tempting to a reviewing court to step into the breach and remedy counsel's neglect by straining to find an abuse of discretion. Here, had we been sitting as Commission members we may very well have accepted the depositions in question or granted a second continuance. However, that is not the question. As much as we might sympathize with appellant that her case was not presented to the Commission in its best light, we cannot accept her counsel's implicit invitation to excuse his omission by finding an abuse of discretion on the part of the Commission where none exists. Otherwise stated, on appeal, appellant was obliged to demonstrate such an abuse of discretion. She having failed to do so, we have no choice in the matter but to affirm.
AFFIRMED.
The Commission is required to conduct an evidentiary hearing pursuant to section 120.57(1) when a member of the retirement system disagrees with the decision of the Retirement Division Administrator and requests a hearing. Section 121.23(2), Fla.Stat. (1991). In this instance, the Commission denied relief from the Administrator's decision because appellant "failed to present any competent medical evidence to support her claim to be totally and permanently disabled or to show that she is prevented by reason of a medically determinable physical impairment from rendering useful and efficient service as an officer and employee." This conclusion results in significant part, no doubt, from the fact that two medical depositions tendered in evidence at the hearing were excluded for non-compliance with the Commission's so-called "10 day rule." In my view, the Commission abused its discretion by excluding the depositions under the circumstances shown by this record.
The term "good cause" used in rule 22J-1.0042 should be given a liberal construction in administrative hearings such as this one to excuse strict compliance with the 10-day rule when excusable neglect is shown by a noncomplying party and no prejudice to the Commission, the Division, or any other party is shown. The Commission, however, has taken the position that such "good cause" contemplates only matters beyond the petitioner's control, and does not exist when noncompliance with the time limitation is the fault of the petitioner's attorney. I reject this unduly restrictive construction and application of the rule in the context of administrative proceedings; such proceedings are supposed to be conducted more informally than trial court proceedings with more relaxed rules of evidence and should not be conducted so as to require parties dealing with the agency to employ a lawyer highly skilled in the intricacies and pitfalls of administrative law to present their cases. Nor should the agency hold a lawyer so employed to an excessively high standard of conduct and competence.
In my view, the Commission erred in excluding the deposition of Dr. Ruiz after being shown that the deposition was timely but inadvertently mailed to the "Division of Retirement" rather than the "Retirement Commission." The Commission's decision is based on the notion that it is wholly unrelated to the Division of Retirement, and thus cannot be properly served when documents are sent to the Division rather than to it. Yet, the Commission, as is the Division, is created by chapter 121, Florida Statutes, and both have clearly interrelated functions. See Secs. 121.22-.24, Fla.Stat. (1991). Of particular importance to the issue in this case is the provision in section 121.24(4) that, "The Division of Retirement shall...
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Metropolitan Dade County v. Bermudez
...to the merits hearing. We cannot say the exclusion of the testimony of Dr. Page was error, see generally Alsobrook v. State Div. of Retirement, 600 So.2d 1173 (Fla. 1st DCA 1992), even though, in other circumstances, notice almost two weeks ahead of trial or hearing might preclude excluding......