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~ITY OF SAN BEn."ARDINO
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MEMORANDU~I
To Ray Schweitzer
City Administrator
Subject Keith L. Thompson - Appeal of
Disability Retirement & Rehabilitation
Committee QeoiaioA
From William Sabourin
Assistant City Attorney
D~e January 22, 1987
Approved
Date 700 . 15, 7 60 . 18
Pursuant to Resolution No. 84-139, please place the request
for an appeal by Keith L. Thompson from the decision of the
Disability Retirement and Rehabilitation Committee on the
Mayor and Common Council agenda for February 2, 1987, to set
the matter for a closed hearing on March ~ 1987, at 9 :00
a . m . J.1J
M SABOURIN
ant City Attorney
WS:lr
cc City Clerk
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ROSE. KLEIN & MARIAS
AII'ORNEYS AT l..AW
320 "O"TH .'Eh ST"EET SUITE .00
1'0. .oX 1270
SAN BERNARDINO, CALIFORNIA 92402
~EL.EI'HO..t: (71.) 8..,601.
(SPACE BELOW FOR riLING STAMP ONLYI
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00 rn @ rn ~ \'!l rn [ID
JAN 6 1987
RISK M,A.NAGEMENT
City of San Bernardino
Attorneys for
Appellant
APPEAL OF THE FINDINGS OF THE DISABILITY
RETIREMENT AND REHABILITATION CO~~ITTEE FOR THE
CITY OF SAN BERNARDINO
12 RE: KEITH L. THOMPSON
Employee No. 24149,
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Appellant.
16 TO THE HONORABLE HAYOR AND cm-mON COUNCIL OF THE CITY OF SAN
17 BERNARDINO, CALIFOPJHA:
18 CO~~S NOW, ROSE, KLEIN & ~~.RIAS, attorneys for injured
19 employee, Keith L. Thompson, and Appeals the Decision and Findings
20 of the Disability Retirement and Rehabilitation Committee for
21 the City of San Bernardino. It is requested that the Honorable
22 Mayor and Common Council disregard the recommended findings and
23 grant disability retirement benefits to injured employee, Keith
24 L. Thompson and/or grant an evidentiary hearing adhering to the
25 principles of due process so as all material issues may be
26 examined.
27 STATEHENT OF FACTS
28 The injured employee, Keith L. Thompson, commenced employ-
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ment with the City of San Bernardino May 17, 1973 as patrolman
with the Police Department. Officer ~hompson sustained the
initial injury to his low back August 11, 1985. Subsequent
reinjuries occurred on or about Dece~ber 5, and December 13,
1985 and June 6, 1986.
Immediately following the initial injury in August of 1985
Officer Thompson was directed by the Risk Management Department
to seek treatment from the offices of Dr. Arnold Stein in San
Bernardino. Along with this treatment, physical therapy was
begun under the guidance of James T. Ragan, R.P.T.
On October 2, 1985 the employee was ordered off work due
to the low back injury and left hip and leg pain. Physical
therapy was continued and Dr. A. Stein referred the employee to
Stanley Rouhe, a neurological surgeon in San Bernardino. The
employee underwent treatment from Dr. Rouhe and Dr. Stein and
remained off work until approximately November 18, 1985.
After approximately four weeks of full status patrolman duty
and occasional assignments of lighter duty at the Complaint
Desk, the employee was again removed from work December 23, 1985.
This off work order was preceeded by two on-duty injuries
occurring approximately December 5 and Dece~ber 13, 1985. The
initial diagnosis of Dr. Stein and Dr. Pouhe were in aqreement.
The diagnosis was a muscular pyriformis syndrome causing low back
pain as well as pain and continuing numbness thrqught the left
hip, groin area, thigh, knee and down into the foot.
In January of 1986, Dr. Rouhe was noted to suspect a probable
central disc herniation at L5-S1. Dr. Rouhe directed that
physical therapy, specifically traction, should continue and kept
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the employee off work until May 5, 1986.
2 The employee returned to work approximately May 5, 1986 and
3 continued to work as a full work status patrolman with oc-
4 casional stints of a light duty nature, working at the Complaint
~ Desk. A subsequent reinjury occurred June 6, 1986 when the
6 employee hopped down from an approximate six foot cement wall
7 while on a prowler investigation. The employee was taken off
8 work June 18, 1986 and has remained so up to the present.
9 This injury resulted in a punitive letter of reprimand in
10 the employee's personnel file, ostensibly for sustaining the
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injury on duty.
It was the assertion in the letter of reprimand
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that the employee knew of his injured status and propensity for
further injury and it was his duty to abstain from activities
which were likely to result in reinjuries. It is noted that
subsequent a petition alleging violation of Labor Code Section
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132 (a) has been filed against the City of San Bernardino with the
Workers' Compensation Appeals Board.
On approximately August 20, 1986 the employee was contacted
by Josie M. Nagy, a Workers' Compensation Specialist with the
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Department of Risk Management for the City of San Bernardino.
She
21 informed the injured employee that based on the January 25, 1985
22 medical report of Dr. S. Rouhe the Department of Risk Manaqenent
23 was going to be seeking an industrial disability retirement on
24 behalf of the employee. At that time Ms. Nagy s~ated she was
2~ making a contact on behalf of Risk Management Director Bruce
26 Gadbois. She asserted that the employee was not expected to
27 return to active duty with the San Bernardino Police Department.
28 The employee contacted risk Management Director, Mr. Gadbois,
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to determine his employment status and employment expectations
for the future. The Risk Management Department proceeded to
contact Dr. Arnold Stein, the initial treating physician, to
further substantiate the industrial disability retirement. At
that same appointment with Mr. Gadbois, the employee requested
examination and/or treatment from a third physician. At the
direction of the Risk Management Department, the employee was
directed to Dr. V. Dhalla in Riverside, California.
It was later learned, Dr. Dhalla only evaluated the dis-
ability status of the employee and would not engage in treatment
of the injury. Dr. Dhalla asserted that examination for a lumbar
disc herniation was negative. He supported his opinion with the
results of his clinical examination and a CT-Scan. Dr. Dhalla
opined that if light work was available, the employee would be
able to undertake such work and that a "work hardening" progralR
should be started.
Immediately following the September, 1986 evalaution by
Dr. Dhalla, the employee was advised by the Risk Management
Director, Mr. Gadbois, to obtain further off work orders from
Dr. A. Stein. It was noted that an informal disability hearing
was going to be held by the City of San Bernardino; however, the
date was uncertain. At no time were any treatment plans offered
or statements made regarding the "work hardening" program so as
the employee could attempt a return to employment with the Police
Department.
On December 10, 1986 an informal meeting was held in the
27 office of the Risk Management Director. That informal hearing
28 consisted merely of a request for the employee to provide thoRe
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persons present with a synopsis of the incidents leading up to
2 his injury and resultant disability. Very ~ew questions were
3 put forward by the representatives for the City of San Bernardino.
4 It was specifically noted that the majority of even those few
5 questions were not actually relevant to the issue at hand, that
6 of the employee's extent of disability substantially incapaci-
7 tating him from his employement as a police officer.
Instead,
8 those questions were of a nonrelative nature and concerned the
9 employee's advanced education and abilities to engage in employ-
10 ment other than that of a police officer.
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No evidence was presented by the City representatives
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concerning the duties and activities encountered as a police
officer and how that related with the employee's permanent
medical condition.
ARGUMENT WITH POINTS AND AUTHORITIES
The medical evidence is clear and convincing. The employee's
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permanent health status, specifically that of low back injury
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with resultant low back, left hip and left leg pain, numbness,
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lack of mobility and propensity for further dibilitating injury,
20 prevents resumption of employment as a police officer. Mansperger
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vs. Public Employee's Retirement System (1970) 6 Cal. App 3d 873,
86 Cal. Rptr. 450, interprets "requirement of incapacity for the
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performance of duty to mean a substantial inability to perform
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the usual duties of the job."
The issue remains, what are the
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specific duties of the job as a San Bernardino police officer?
A Decision of the Court of Appeal, Second District in
Thelander vs. City of E1 ~onte (1983) 147 Cal. App 3d 740, 195 Cal
Rptr. 318 notes that "If every officer must be capable and
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prepared for the worst every doy, then that is a usual duty of
~ the job." In Thelander the court noted several activities that
3 a police officer must be expected to engage in such as:
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1. Subduing violent suspects.
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2. Engaging in a chase possibly entailing running,
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climbing, jumping, crawling and other exertions.
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3. Quelling a disturbance.
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4. Breaking up fights.
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5. Dragging or carrying victims out of danger.
The officer's complaints are agreed upon by all those
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11 offering medical opinions. The employee has permanent back pain
I~ and numbness and further constant discomfort on the lower left
13 side which is further complicated by certain activities. In the
14 medical reports these activities have been noted as prolonged
15 sitting, bending, stretching, twisting, strenuous movement and
16 generally all types of activities which necessitate much more
17 than minimal exertions or manipulations or the lower back area.
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19
California Government Code Section 21022 states in part:
"Any . . . local safety member incapacitated
for the performance of duty as the result of
an industrial disability shall be retired for
disability. "(emphasis added)
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22 There is no question, the employee, as a police officer
23 under the Public Employees Retirement System meets the mandatory
24 requirement of retirement.
25 In July, 1986 Dr. S. Rouhe stated in his medical report
26 to the Risk Management Department that the injured employee
27 was"
. not a good candidate for continued work." That was
2R Dr. Rouhe's final report concerning hi~ treatment. He reiterated
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that his earlier diagnosis still held true and he believed the
employee was suffering from a probable herniated disc. He left
open the continuing possibility of a muscular pyriformis
syndrome indicated by the left leg pain, implyinq damaqe to the
sciatic nerve. In response to that July, 1986 Rouhe report that
the Risk Management Department first stated their intentions to
proceed with a disability retirement. Additionally, a letter
sent to the City's sought out physician, Dr. A. Stein, requested
he review the medical file and present his opinion of the injured
employee's disability status.
Dr. Stein's notation at October 6, 1986 notes ". . . no
change from last visit .
. advise medical retirement from
San Bernardino Police Department. Condition permanent and
stable." Dr. Stein was responding directly to the Risk Management
Department's request to enter his opinion as to the emplovee's
disability status.
Dr. Stein is a private physician employed as a medical
advisor for the City of San Bernardino and, is responsible for
examining all new candidates for the San Bernardino Police
Department. Dr. Stein is familiar with the activities and
requirements concerning employment as a police officer and is
acutely aware of the potential harmful activities this injured
employee could be expected to encounter. Prior to his decision
to retire Officer Thompson he treated the employee for more than
one year. At all times Risk Management's opinions were con-
sistent with Dr. Stein's. At this point the Risk Management
Department had indicated its intention to proceed with a dis-
ability retirement based on a medical report from the neurolo-
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gist and now was receiving full support concern1nq the employee's
incapacity to perform the jub duties as a rolice officer from a
physician who is actively involved in treating and examininq
current and potential employees of the Police Department.
At the same time the employee had been sent to Dr. v. Dhalla
in Riverside. Dr. Dhalla noted he did not find evidence of a
lumbar disc herniation; however, he diagnosed the employee as
suffering from "chronic strain, of the lu~bosacral spine." Dr.
Dhalla found no reason to consider retirement from the pOlice
service. Instead, he supported returning the patient to work
at a light duty status and proceed with a "work hardening program."
The Risk Management Department took no responsible action to
engage the injured employee in a "work hardening program" or
actions concerning returning the em9loyee to work at a light
duty status. Instead, during conversations between the ~isk
Management Director, Mr. Gadbois, and the employee, it was
requested that further off work orders be obtained through Dr.
A. Stein, the treating physician.
At the time of the informal hearing before the representa-
tives for the City of San Bernardino, all medical records were
clear that the employee was incapable of substantially under-
taking the duties of a police officer. This point is supported
by the diagnosis of the neurologist, Dr. S. Rouhe, and the
support sought specifically by the Department of Risk ~anagement
with Dr. A. Stein. The least injurious consideration of Dr.
Dhalla's report concerned the possibility of returning the
employee to light duty work.
In retrospect, considering the
result in denying disability retirement to the injured employee,
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it appears that only one salient point of Dr. Dhall's report
was extracted. The statement concerninq Dr. Dhalla's negative
view regarding necessary retirement is the singular, isolated
element supporting the denial.
Dr. G. Watkin, an orthopaedic surgeon, examined the e~ployee
November 26, 1986 for purposes of a Workers' Compensation disa-
bility rating. His examination and report of the employee's
symptoms was in agreement with the prior medical reports. He
offered a negative diagnosis concerning lumbar disc herniation,
but noted a disc space narrowing at the area of L5-Sl. His
diagnosis of the low back, left hip and left leg disability was
of a chronic muscular strain of the lumbar spine and nerve root
irritation. He noted that the pain discomfort and lack of
mobility would prevent the normal scope of duties as a police
officer.
The determination of denial by the representatives for the
City of San Bernardino is clearly in contradiction to the substan-
tial evidence. At best, the injured employee could have been con-
sidered to attempt a resumption of police employment at the light
duty level. It should clearly be evident that denial can only
be based on merely one portion of a single report in the entire
medical file.
Aside from the medical reports, the facts of the employee's
attempt to return to work speak for themselves. The employee was
initially injured during the process of a normal arrest. The re-
suIt was extreme pain and incapaciation to the extent that the
employee was removed from duty. Upon returning to duty, the
28 i employee was subsequently reinjured during a relatively minor
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incident of merely assisting a very large man to the pOlice
vehicle during the process of an arrest. Within a week thereafter,
another reinjury occurred causing more pain and, specifically,
some paralysis to the left side when a foot pursuit was necessary
to stop a fleeing suspect. Again the employee was removed from
duty. As the pain and discomfort again lessened, the employee
a ttempted to resume his career as a police officer in ~1ay of 1986.
However, during the very minor incident of hopping off a cement
block wall, the employee again sustained a reinjury. This
required further medical treatment and resulted in being taken
off work at the request of the treating physician on approximately
June 18, 1986 and the physician has declined to return the employe
to work status.
Additionally, it has become the position of the San Bernar-
dino Police Department that the injured employee is to conduct
himself at a level other than that of the normal course and
scope of employment as a police officer. The employee was given
a written reprimand for sustaining the reinjury based on the
fact that he should have known that he was prone to reinjury.
It was noted that the employee had attempted to Ieturn.to work,
and the Police Department had accepted the release and assisgned
him to normal patrol duties. At no time has there been any
consideration that the reinjury resulted other than by the basic
performance expected of an active police officer.
CONCLUSION
It appears clear beyond any doubt that the representatives
for the City of San Bernardino abused their discretion in the
denial of application for disability retirement.
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It is requested that the Honorable Mayor and Common Council
exercise their discretion and overturn the preliminary findings
of the Disability Retirement and Rehabilitation Committee.
Request for a further evidentiary hearing on all material
issues relating to the injured employee's capacity to resume the
duties of a police officer is hereby made. Well beyond the
preponderance of evidence necessary is established in the medical
records documenting the employee's permanent disability status.
As a final note, the actions of the Director of Risk Manage-
ment, Bruce Gadbois, were cleraly contrary to the interests of
the employee. The stated intention in August of 1986 to begin
proceedings re: medical retirement, followed by the about face in
ignorance of the medical reports, appears to be in bad faith.
The Risk Management Department initiated the activities concerning
retirement from the Police Department. It was stated that
support was going to be sought from the treating physician, Dr.
A. Stein, specifically noting that he is a local physician
actively involved in examining police candidates and was a City
referral treating doctor. Mr. Gadbois also arranged an appoint-
ment with Dr. Dhalla in Riverside, but noted that the Dhalla
appointment could be cancelled if Dr. Stein's evaluation of the
medical file came in first. ~!r. Gadbois stated that he wanted
a little more support, other than the report of only one physician
(Dr. S. Rouhe). He noted he believed that would be more satisfy-
ing to the Board.
Upon receiving Dr. Dhalla's report, which was notable less
concerned with retirement due to the injury, the Department of
Risk Management took no further action. Dr. Dhalla was known to
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not be a treating physician, yet his recommendations regarding
a conditional return to light work and an attempt at a "work
hardening program" were ignored.
The actions of the Director of Risk Management have been
contradictory and have appeared to not be in good faith. It
is again strongly urged that the Honorable Mayor and Common
Council exercise their power and overturn the decision or, at
a minimum, fairness mandates an order granting a subsequent
re-hearing and/or grant approval to the application for disa-
bility retirement.
Respectfully submitted this 31st day of December, 1986.
ROSE, KLEIN & MARIAS
by:
ROBERT I. VINES
RIV:bjs I
cc: Keith L. Thompson
City of San Bernardino, Risk Management
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PROOF OF SI:R\(CI: BY :\o1AIL (IOl.la. :015.5 C C PI
STAT!: OF CALlFOR'I,(A, COV\TY OF SAN BERNARDINO
I",,,,, ,e<1d,,,, 01 1;'1' COII"/I al"','a,d. I 011/ Ole' Ihe a.." o( elllhlt,,, ..,ar.. a"d "01" 1'01/.. '" Ihe ""h,,, 1"1/1//1'.1 "Clio". nil hU.II"I'''
"Jdrl'lI 1.\.
320 North "E" Street, Suite 400, San Bernardino, CA
92401
0" December 31,
. (t,I~. ',mI'd Ihe ...ilh", APPEAL OF THE FINDINGS
OF THE DISABILITY RETIREMENT AND REHABILITATION COMMITTEE FOR
THE CITY OF SAN BERNARDINO
~~ interested parties
III ,,,,d "Clio". In I'laemf a lru.., "I" Ih,rl'ol e"cln.\ed '" a ,ealed efllo,'upe ","h poslag, Ih",o" luI" f',pald. "'Ih, eml,d 5,ale5 lIIatl
San Bernardino, California
'"
addrl'Hl'd at lollo.....f:
City of San Bernardino, Risk Management, 300 North "0" Street,
San Bernardino, CA 92401
Keith L. Thompson, 3152 Little Mountain Dr., San Bernardino, CA
92405
I de,lurl'. u"d", 1'l'"ulll 0(1''''1'''' Ihal ,he lore."ol"" /, Iru" u"d,.o",CI.
f.'\I"lI/l'd 0" December ~l,_ 11..8-9_
dull' '
ul
San Bernar~.o , ~1-
0~~
S'K"alu,e
Meredith Willis
o (alllorma