CopyCited 18 times | Published | Florida 1st District Court of Appeal
..." References at the hearing to the understanding that retroactivity was in issue clearly went to the agency's concession that equal protection aspects of retroactivity were to be heard, and not to any agency waiver of appellant's waiver in 1978. [3] Section 121.23, Florida Statutes, as to this agency's actions and decisions, required only "reasonable notice ......
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...Amico was retired from his employment as a Metropolitan Dade County police officer in August 1972 on a determination that he was then "totally and permanently disabled." Section
121.091(4), Florida Statutes (1975). In November 1976, the Retirement Commission conducted the hearing prescribed by Section
121.23 for termination of benefits and sustained the decision of the Director of the Division of Retirement that petitioner is no longer disabled....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...Bolinger petitions for review of an order of the State Retirement Commission which at the instance of respondent Division of Retirement, Department of Administration, partially denied Bolinger's application for disability retirement from state employment. Ch. 75-248, Fla.Laws, § 121.23, F.S....
...with essential requirements of law. Sec.
120.57(1)(b)9, F.S. 1975. The hearing officer's findings *570 therefore became in effect the agency's findings, and as such they are entitled to similar respect in our review of the matter. Secs.
120.68(10),
121.23(4), F.S....
...120.57(1) (a), F.S. 1975. Neither of the adversaries here, Bolinger and the Division of Retirement, is in a position to complain that the hearing should have been before the State Retirement Commission rather than a hearing officer. See §
120.57(1) (a) 1, (b)3, §
121.23(2), F.S....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 61, 1984 Fla. App. LEXIS 16288
...Havener, appeals the final order of the State Retirement Commission which denies his claim for in-line-of-duty disability retirement benefits under section
121.021(13), Florida Statutes *232 (1983). [1] The Division of Retirement cross-appeals the Commission's denial of its motion to dismiss the section
121.23 administrative hearing because Havener failed to timely request a hearing....
...its with the Division. The Division notified him that it had approved regular disability benefits but denied in-line-of-duty benefits, and Havener applied for and was granted an administrative hearing with the State Retirement Commission pursuant to section 121.23, Florida Statutes (1983)....
...Commission was based on substantial evidence. We may not substitute our judgment for that of the Commission as to the weight of the evidence on any disputed findings of fact where the decision of the Commission is supported by substantial evidence. § 121.23, Florida Statutes (1983)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1995 WL 686041
...To carry this burden of proof, it is necessary "to present competent medical evidence," by a licensed medical professional, who has either treated or examined the individual, who testifies under oath at the hearing or deposition and is subject to cross examination by the Division of Retirement. See § 121.23(2)(a), Florida Statutes (1993); Fla....
...s caused by his in-line-of-duty injury. "The pertinent standard of appellate review in this case is whether the decision of the Commission was based on substantial evidence." Havener v. Division of Retirement,
461 So.2d 231, 233 (Fla. 1st DCA 1984); §
121.23(4)(c), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...After studying the apparent statutory scheme, we concur with appellees' position. The legislature in Chapter 75-248, Laws of Florida (1975) created the Florida Retirement Commission as the agency head to hear appeals from decisions of the administrator in matters relating to disability retirement. In Section
121.23(2)(a), the commission was given broad authority in its delegated area, including the power to "order any action that it deems appropriate." Section
121.23(2)(a) was enacted after Section
121.091(4)(b), which had made the decisions of the administrator on these questions "final and binding." The commission argues persuasively that its statutory authority would be meaningless if it were li...
...a fair hearing, has not ruled in accordance with existing statutes or rules, or has not based its decision on substantial evidence. We are specifically prohibited from substituting our judgment for that of the commission "on an issue of discretion." Section 121.23(4)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 2712, 1985 Fla. App. LEXIS 16923
...y disability retirement benefits, but approved regular disability retirement benefits. See Section *135
121.091(4)(d)(1) and (2), Florida Statutes. Upon appellant's petition, an administrative hearing was conducted before the Commission, pursuant to Section
121.23(2), Florida Statutes....
...The Commission later adopted and accepted the recommended order. This court may not "substitute its judgment for that of the commission as to the weight of the evidence on any disputed finding of fact where the decision of the commission was supported by substantial evidence". Section 121.23(4), Florida Statutes....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...5), 2. by applying an incorrect causation standard for in line of duty disability, 3. by failing to find that Caldwell was entitled to in line of duty disability as a matter of law, and 4. by failing to award Caldwell costs and attorney's fees under Section 121.23(2)(a), Florida Statutes (1975)....
...The causation *925 standard applied by the Commission to the facts of this case was correct and Caldwell is not entitled to in line of duty disability as a matter of law. Caldwell's contention that he is entitled to an attorney's fee and costs under Section 121.23(2)(a), Florida Statutes (1975), is without merit. Section 121.23(2)(a) does not specifically grant the Commission authority to award attorney's fees and costs....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1980 Fla. App. LEXIS 17862
...Mathues and Augustus D. Aikens, Jr., Tallahassee, for appellee. ROBERT P. SMITH, Jr., Judge. Daniels appeals from an order of the Division of Retirement denying her in-line-of-duty death benefits claimed upon the death of her husband, a fireman, due to heart disease. Section 121.23, Florida Statutes (1979)....
...The fireman suffered a myocardial infarction while off duty after pushing heavy wheelbarrow loads on a neighbor's construction project. The Division decided the claim pursuant to Section
120.57, after referring the matter to a DOAH hearing officer for hearing, because the Retirement Commission interprets Section
121.23 as limiting its review jurisdiction to disability retirement decisions by the Division, excluding review of death benefits decisions....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 16541, 2009 WL 3645182
...retirement. Analysis This court reviews the Commission's conclusions of law de novo and affirms findings of fact if they are supported by competent, substantial evidence. See Miller v. State, Div. of Ret.,
796 So.2d 644 (Fla. 1st DCA 2001); see also §
121.23(4), Fla....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 2134, 1988 Fla. App. LEXIS 4053, 1988 WL 93290
...Appellant argues that the Commission had no original jurisdiction over the subject matter of the petition for declaratory statement, and the petition should have been submitted to it rather than the Commission because the petition requested an interpretation of a substantive provision of Chapter 121. Section 121.23, Florida Statutes, providing for the powers and duties *381 of the Retirement Commission, specifically relates to “applications for eligibility for the State University System optional retirement program as provided in s....
CopyPublished | Florida 1st District Court of Appeal | 1983 Fla. App. LEXIS 24361
...Although the Division of Retirement had approved Castiglia’s application for regular disability retirement, it had denied his application for the enhanced in line of duty disability benefits, and Castiglia petitioned for a hearing before the Retirement Commission pursuant to Section 121.23....
...ot only of the Division’s denial of in line of duty benefits but also of the determination of the retirement date by the Division’s administrator. In its subject final order the Commission stated that its statutory jurisdiction was limited under Section
121.23, that such statute does not cover jurisdiction to consider disputes over retirement date determinations and that such dispute “would be resolvable in a circuit court proceeding seeking the enforcement of [the Commission’s final order] pursuant to Section
120.69, Florida Statutes.” We disagree....
...There is no justification for such a narrow construction of the Commission’s jurisdiction, and a Section
120.69 enforcement proceeding in circuit court is a patently inappropriate means of resolving a dispute over the correctness of the retirement date established by the Division. Section
121.23 provides that the “provisions of this section shall apply to all proceedings respecting applications for disability retirement.” Subsection (2)(a) further provides: (2) Unless the member accepts the decision of the administrator as...
CopyPublished | Florida 3rd District Court of Appeal | 2008 Fla. App. LEXIS 17571, 2008 WL 4922701
...Because the legally-sufficient evidence presented by Lawrence went unrebutted, we reverse. This Court may not “substitute its judgment for that of the commission as to the weight of the evidence on any disputed finding of fact where the decision of the commission was supported by substantial evidence.” See § 121.23(4), Fla....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 14415, 1998 WL 796499
...t any consideration of whether the illness was an aggravating cause thereof. See Fla. Admin. Code R. 60R-1.00481. 1 Because the *1149 Commission’s decision was not made in accordance with its own rules, we reverse and remand for a new hearing. See § 121.23(4)(b) and (e), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1982 Fla. App. LEXIS 19474
...te district in which he resides. Motions to dismiss were filed on behalf of the respondents State Retirement Commission and the Division of Retirement. Both motions sought dismissal of petitioner’s notice of administrative appeal on the basis that section
121.23(3), Florida Statutes (1981), provides that orders of the State Retirement Commission “shall be reviewable by the district court of appeal in the appellate district where the Division of Retirement maintains its headquarters.” The headquarters of respondent, the Division of Retirement, is located in Tallahassee, and if section
121.23(3) is controlling, petitioner’s notice of appeal should have been filed in the First District Court of Appeal. While the motion to dismiss filed by the respondent State Retirement Commission sought to dismiss the appeal on an additional ground, we find it necessary to discuss only whether section
120.68(2) or section
121.23(3) controls as to the district in which the notice of administrative appeal should be filed, and in doing so deny both motions. In denying respondents’ motions to dismiss, we find that section
120.68(2) has re *671 placed section
121.23(3) as the statute controlling where notices of administrative appeals from orders of the State Retirement Commission should be filed....
...extent such provisions conflict with chapter 120, unless expressly provided otherwise by law subsequent to January 1, 1975, except for marketing orders adopted pursuant to chapters 573 and 601. *672 Respondents argue that chapter 120 did not replace section
121.23(3) because section
121.23(3), though a part of Florida Statutes, 1977, was enacted in July, 1975 thus coming within the exception of section
120.72(1) as being “provided otherwise by law subsequent to January 1, 1975.” There are two reasons respondents’ argument is not valid....
...The first is that section
120.72(1) provides that the adjudicative procedures of chapter 120, i.e.,
120.68(2), shall supersede all conflicting provisions in Florida Statutes, 1977, “unless expressly provided otherwise by law subsequent to January 1, 1975.” (Emphasis added.) While respondent is correct that section
121.23(3) was enacted after January 1, 1975 and conflicts with section
120.68(2), it does , not expressly provide that it is to prevail over section
120.68(2). As a matter of fact, section
121.23(3) makes no reference, implied or express; to chapter 120 and cannot therefore be held to supersede it....
CopyPublished | District Court of Appeal of Florida | 40 Educ. L. Rep. 1081, 12 Fla. L. Weekly 1411, 1987 Fla. App. LEXIS 8703
...ms or disability” (R 345). This court may not substitute its judgment for that of the Commission as to the weight of the evidence on any disputed finding of fact where the decision of the Commission is supported by competent, substantial evidence. § 121.23, Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 10129, 2003 WL 21510795
...edical evidence that he was permanently totally disabled. We agree. In requiring Carver to supply medical evidence that he is permanently totally disabled, the Commission applied a legal standard which is contrary to this court’s interpretation of section 121.23(2)(a), Florida Statutes, in Nichols v....
...is permanently totally disabled from rendering useful and efficient service as an employee. An employee who is unsuccessful before the Director, however, is entitled to a de novo review before the State Retirement Commission. Before the Commission, section 121.23(2)(a), provides, in pertinent part, that: In cases involving disability retirement, the State Retirement Commission shall require the member to present competent medical evidence and may require vocational evidence before awarding disability retirement benefits. Construing section 121.23(2)(a), 3 in Nichols this court held that this provision does *1206 not require the claimant to present a physician’s certificate or opinion that he or she is totally and permanently disabled to prevail before the Commission....
...Subsection (1) of that rule provides that “[c]ompetent medical evidence of total and permanent disability is required for a determination of disability retirement eligibility.” This rule was implemented in 1993, however, before this court’s 1994 decision in Nickols which expressly held that section 121.23(2)(a) does not require an opinion of a physician certifying total and permanent disability before an employee may qualify for disability benefits....
...nt service within the State Retirement System.” Nichols,
637 So.2d at 264 . We certify the same issue of great public importance certified in Nichols, id. at 263: WHERE A CLAIMANT SEEKS TOTAL AND PERMANENT DISABILITY BENEFITS IN A PROCEEDING UNDER SECTION
121.23, FLORIDA STATUTES, WHAT MEDICAL EVIDENCE IS THE CLAIMANT REQUIRED TO PRESENT BEFORE THE STATE RETIREMENT COMMISSION? REVERSED and REMANDED for further proceedings....
...Shearer,
651 So.2d 195, 196 (Fla. 1st DCA 1995)(ruling that because the employer/servicing agent made no objection to, or moved to strike the expert testimony for lack of competency, the error was not properly preserved for appellate review). .The 1997 version of section
121.23(2)(a) is different in some respects from the 1991 version interpreted in Nichols ....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 375, 1989 Fla. App. LEXIS 503, 1989 WL 8334
...Division of Retirement,
461 So.2d 231, 233 (Fla. 1st DCA 1984). Although this Court may not “substitute its judgment for that of the commission as to the weight of the evidence on any disputed finding of fact where the decision of the Commission was supported by substantial evidence,” section
121.23(4), Florida Statutes, we nevertheless hold that in the instant case, the Commission’s order was not supported by substantial evidence....
CopyAgo (Fla. Att'y Gen. 1985).
Published | Florida Attorney General Reports
...MUST THE ADMINISTRATOR HAVE THE CERTIFICATION OF A LICENSED PHYSICIAN OF THE STATE THAT A MEMBER RECEIVING DISABILITY BENEFITS IS NO LONGER TOTALLY AND PERMANENTLY DISABLED IN ORDER TO MAKE THAT SAME FINDING UNDER s
121.091 (4)(e)1., F.S.? Your inquiry notes that s
121.23 , F.S., gives the State Retirement Commission authority to hold s
120.57 (1) hearings at the request of a member of the Florida Retirement System who wishes to challenge a decision of the administrator (Director of the Division of Retirement, see, s
121.021 [5], F.S....
...The foregoing provisions indicate the importance of a medical examination in determining disability or the recovery from disability. See, Amico v. Division of Retirement, Department of Administration, supra. Additionally, Rule 22B-4.07(8), F.A.C. (adopted pursuant to, inter alia, ss
121.091 [4] and
121.23 , F.S.), provides that the Division of Retirement "may conduct periodic reexaminations of members" granted disability status pursuant to Ch....
...that same finding under s
121.091 (4)(e)1., but that he may require such examinations. You also ask if the administrator's burden of proof before the commission on the issue of recovery from disability must include the above-described certification. Section
121.23 , F.S., sets forth procedural guidelines for such proceedings before the commission, but nothing in that section prescribes the elements of the burden of proof or grants to the commission any power to dictate what such proof must include. Additionally, neither s
121.23 nor s
121.091 (4) empowers the commission to limit such proceedings to those cases where a medical certification has been obtained and presented....
CopyPublished | District Court of Appeal of Florida | 23 Educ. L. Rep. 447, 10 Fla. L. Weekly 401, 1985 Fla. App. LEXIS 12337
...He would start to speak and not finish and would say things out of the ordinary. He would talk to himself. He would not eat and began to lose weight. Dr. Gonzalez was of the opinion that at present Mr. Brantley was totally disabled. This court’s standard of review is limited by § 121.23(4), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 17010
of SCOERS could petition for a hearing under § 121.-23(2).4 Petitioner then filed this petition for review
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 4799, 2002 WL 553395
...ce-chair entered a written order articulating the reasons for dismissal and denying the motion for reconsideration. This was error, because a panel of the Commission, rather than the vice-chair alone, should have determined the Division’s motions. Section
121.23(2), Florida Statutes (2001), authorizes the Commission to hear appeals “on the merits of any written adverse decision of the administrator” of the retirement system. Section
121.24(1), Florida Statutes (2001), provides: (a) For purposes of hearing appeals under s.
121.23, the commission may meet in panels consisting of not fewer than three members....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 3372, 1994 WL 122342
...le fact that out of the myriad of physicians who treated or examined Nickols, not one said he was — by any definition — totally and permanently disabled, unable to render useful and efficient service as an employee. Thus, the Commission has read section 121.23(2)(a), Florida Statutes, as requiring appellant to present an expert medical opinion expressly stating that he meets the statutory standard for total and permanent disability benefits....
...ialists who have evaluated the applicant for employment. An employee who is unsuccessful before the administrator, however, has the right to de novo determination before the Commission of eligibility for total and permanent disability benefits under section 121.23, Florida Statutes. The Commission’s determination of eligibility for such benefits is controlled by section 121.23(2)(a), Florida Statutes, which provides in pertinent part: The commission may order any action that it deems appropriate....
...t does to the administrator. Because the issue is of great public importance, we certify the following issue to the Supreme Court as one of great public importance: WHERE A CLAIMANT SEEKS TOTAL AND PERMANENT DISABILITY BENEFITS IN A PROCEEDING UNDER SECTION 121.23, FLORIDA STATUTES, WHAT MEDICAL EVIDENCE IS THE CLAIMANT REQUIRED TO PRESENT BEFORE THE STATE RETIREMENT COMMISSION? The Commission, upon review of the evidence, may require the Petitioner to submit vocational evidence when necessary t...
...Also, the Commission may, in its discretion, take or require additional evidence. The order appealed from is reversed, and this cause is remanded for proceedings consistent herewith. ERVIN, J., concurs. WEBSTER, J., dissents with written opinion. . Section 121.23(2)(a), Florida Statutes, formerly provided in pertinent part that "[t]he commission may order any action that it deems appropriate.” In Kennedy v....
...Stated another way, "competent medical evidence” of a medically-determinable physical or mental impairment and "certification of ... total and permanent disability by two licensed physicians” are not synonymous. The Legislature could have imposed identical standards of proof, but it did not do so. The current version of section 121.23(2)(a), Florida Statutes, is clear on its face that the Commission *263 continues to enjoy broader discretion than the administrator. . The Legislature, by providing in the amended version of section 121.23(2)(a), Florida Statutes, that the Commission may require vocational evidence, and the Commission, by its enactment of Florida Administrative Code Rule 60R-1.003(4), has recognized that in the absence of medical evidence that an employe...
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 4240, 1992 WL 74908
...At the time of the accident, appellee was not working regularly-scheduled hours. *359 The administrator 1 denied appellee long-term disability retirement benefits because appellee was not in the performance of his duties when injured. Appellee appealed the denial to the SRC pursuant to Section 121.23, Florida Statutes....
