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Cypen & Cypen
NEWSLETTER
for
JUNE 15, 2006

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. OFFICER INJURED IN PERFORMANCE OF OFF-DUTY DETAIL AT HIGHWAY CONSTRUCTION SITE ENTITLED TO SERVICE-CONNECTED DISABILITY:

In the course of her service with the Orlando Police Department, Redding was presented with an off duty work opportunity with a construction company. If there were no volunteers, the department could assign someone for the work detail, but here, Redding volunteered for a shift. She would have been subject to punishment had she not appeared for her detail. The work was to be paid through the construction company without withholding of taxes. While at the work detail, Redding was sitting in her marked police car in full uniform. The cruiser’s blue strobe lights were flashing, as was required in order to warn other vehicles of the construction area. Redding was sitting in her vehicle when another vehicle struck hers from behind. The pension board denied Redding’s application for line-of-duty disability, but granted a non-line-of-duty disability pension. The board relied upon a section of the pension plan that requires the total and permanent disability to be “directly caused by and attributable to the performance of duty as a member of the department,” in order to be granted a line-of-duty disability pension. On Redding’s petition for certiorari review by the appellate division of the circuit court, the court reversed. The standard for line-of-duty appears to be a duty that can only be performed by a police officer. For instance, officers acting as security guards would not be considered acting within line of duty since any citizen could perform that job. However, the night of the accident, Redding was sitting in her marked police vehicle, in full uniform, the blue strobe lights on and flashing. In fact, the blue lights in this instance were the reason the work detail existed in the first place. Thus, Redding was performing a duty as a member of the Orlando Police Department when the accident occurred. Redding v. City of Orlando, Police Pension Board, 13 Fla. L. Weekly Supp. 531 (Fla. 9th Cir., October 18, 2005).

2. IN DENYING OFFICER’S APPLICATION FOR LINE-OF-DUTY PENSION, BOARD CAN FIND OFFICER’S TESTIMONY OF UNREPORTED INJURIES NOT TO BE CREDIBLE:

Orlando Police Officer Gonzalez allegedly suffered four line-of-duty incidents implicating his left arm and shoulder, the first three of which were never reported. After the fourth incident purportedly resulted in a total and permanent disability, Gonzalez applied for a service-connected disability pension. The relevant plan section provides for line-of-duty disability pensions for any active member of the department who shall become permanently and totally disabled, if the disability is directly caused by and attributable to the performance of duty as a member of the department. In reliance thereon, the board denied the application, but did grant non-line-of-duty disability. Gonzalez sought review in the appellate division of the circuit court, but the board’s determination was upheld. The appellate court held that the board properly found Gonzalez’s testimony regarding his injuries not to be credible, noting that police reports generated after the incidents during which Gonzalez claimed to have been injured failed to mention any injuries although at least one arrest report mentioned injuries sustained by another officer. Further, because the board rejected Gonzalez as a credible witness, it could also reject the doctors’ reports on the ground that Gonzalez did not truthfully relate his injury to them. Thus, there was competent substantial evidence supporting the board’s order and the board did not depart from the essential requirements of law. Gonzalez v. City of Orlando, Police Pension Board of Trustees, 13 Fla. L. Weekly Supp. 540 (Fla. 9th Cir., August 9, 2005).

3. PENSION BOARD DOES NOT HAVE JURISDICTION TO REOPEN HEARING ONCE DISABILITY APPLICANT SEEKS JUDICIAL REVIEW:

Apparently it’s been a busy time for Orlando Police Officer Gonzalez and the Police Pension Board. After the board denied Gonzalez’s line-of-duty pension (as reported in Item 2 above), Gonzalez timely sought judicial review of that denial. The day before, however, Gonzalez filed a motion to reopen the hearing based upon a newly discovered document. (That document, on its face, appeared to supply the missing link between Gonzalez’s injury and his work.) In any event, the board held a hearing on the motion, and denied Gonzalez’s motion to reopen the hearing. The board concluded that upon filing of Gonzalez’s petition for writ of certiorari, jurisdiction over the matter was vested in the circuit court and, thus, the board no longer had jurisdiction. The reviewing court denied relief. Although administrative agencies have inherent or implied power, comparable to courts, to rehear or reopen a case and consider any action or determination therein where the proceeding is quasi-judicial, such power must be exercised before an appeal from the original order has been filed or before an order has become final by lapse of time without a timely appeal. So, Gonzalez lost again. Gonzalez v. City of Orlando, Police Pension Board of Trustees, 13 Fla. L. Weekly Supp. 542 (Fla. 9th Cir., August 9, 2005). Editor’s note: clearly, Gonzalez had no choice but to file his petition for writ of certiorari within thirty days from the board’s denial of his application for line-of-duty disability pension. His post-hearing motion to reopen the hearing would not have stayed the time to seek review. However, once having sought timely review, Gonzalez could have requested the appellate court to relinquish jurisdiction to the board in order to rule upon the merits of his motion.

4. IN CASE INVOLVING PRE-RETIREMENT NON-SERVICE INCURRED DEATH, CHAPTER 99-1 CONFORMING AMENDMENT SUPERSEDES PRIOR PROVISION:

Maloney, a veteran Pembroke Pines police officer, died in active service from a cause not attributable to active duty or service. Prior to March 12, 1999, in such cases, the pension plan specifically provided for spousal and children’s benefits. However, effective as of March 12, 1999, and in accordance with Chapter 99-1, the plan was amended to provide that if a member having at least ten years of continuous service dies prior to retirement, his designated beneficiary is entitled to the benefits otherwise payable to the member at his early retirement or normal retirement date. Maloney died leaving a widow and a minor child from a previous marriage, the latter of whom he had designated as beneficiary. After several hearings on the issue, the board awarded all survivor benefits to the minor child. In the widow’s suit against the board, she alleged that as surviving spouse she was entitled to the since-superseded spousal benefits (either to the exclusion of the child or in addition thereto). The court held that a plain reading of the ordinance compels the conclusion that the prior provisions are not effective after March 12, 1999. Thus, the designated beneficiary is entitled to benefits otherwise payable to the member at his early retirement date or normal retirement date. The court also held, despite its above ruling on the merits, that it did not have subject matter jurisdiction. Under the Florida Appellate Rules, the widow was required to have sought review, via petition for writ of certiorari, within thirty days after the board’s adverse decision. Here, the instant action was not brought until about six months later. We are pleased to have served as co-counsel to the board of trustees, one of our regular clients. Sammarco v. Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Pembroke Pines, 13 Fla. L. Weekly Supp. 596 (Fla. 17th Cir., March 21, 2006).

5. POTPOURRI FROM KIPLINGER’S:

The following tidbits from Kiplinger’s Personal Finance may be of interest to our readers:

  • Percentage of individuals who changed residences in 2004: 14%
  • Number who say they moved to live in a new or better house: 1 in 2
  • Number who moved but stayed in the same county: 6 in 10
  • Net migration to the South, the only region that experienced positive net migration in 2004: 310,000
  • Net domestic migration over the past five years to the ten states with the lowest state and local tax burdens: 1.5 million
  • Net out-migration over the past five years from the ten states with the highest tax burdens: 1.3 million

Very interesting.

6. QUOTE OF THE WEEK:

“The brain is a wonderful organ. It starts working the moment you get up in the morning it does not stop until you get into the office.” Robert Frost


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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.


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