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HomeMy WebLinkAbout06-City Administrator ~ITY OF SAN BEn."ARDINO - 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 -""\ , . . -) "".:; f',~.~ t. , . I 3 " 5 6 7 8 9 10 11 ULj~ ~..~ I 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 t?~ 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, 13 14 15 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- - 1 _ 2 3 4 S 6 7 8 9 10 11 N 12 0 ~ N fIl 8 GI < ~ ~ 13 i~~ z! <:s~ ~: ~""~~~I 14 .<(..!:!~. z ell I! · u ;: -iZ-i - IS ~ z i.I 0" lIl: It ' Cl ~ ~ O~LQ~ ~S~ ~~ 16 o ~ i~ Q: N W 17 .. III Z ~ ell 18 19 20 21 22 23 24 2S 26 27 28 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 - 2 - l\I o ., l\I II) ~ Gl i ~ ~ I! 13 :.t ... ti 12 ...: 14 .c",!!~. z4ll~.u;: iij~~ioi IS .Ja:,ozo ~ 0 :z: a: i5 :z: ~ ~ g ~ ~ 16 O z z ~ o It It ::: ~ z < UI 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 11 injury on duty. It was the assertion in the letter of reprimand 12 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 17 132 (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 18 19 20 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, - 1 - 2 3 4 5 6 7 8 9 10 11 l\I 12 ~ l\I ~ ~ :. 13 ~~i i~ ~..ti~ei 14 ..'CW~~. ~ E =" E 15 ~ i. Ii 0 III iMoz~ X:oi:LiS ~~i i; 16 o 0 l- It N W 17 l'l III Z '< CIl 18 19 20 21 22 23 24 25 26 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 - 4 - N o ., N (Il Sl Gl ~ : ~. 13 ~~i ~! ~ "" C ~ !!: I 14 .CWN.J_ III II: - C . ~ ~ ~ i ~ E 15 llJ.J Z"j., . 0 ~ cr,OZo :&:: O:t to: o:t W ~ ~ ~ ~ 16 (IlCz zw o 0 It: l- It ::: ~ Z C III 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. 11 No evidence was presented by the City representatives 12 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 17 permanent health status, specifically that of low back injury 18 with resultant low back, left hip and left leg pain, numbness, 19 lack of mobility and propensity for further dibilitating injury, 20 prevents resumption of employment as a police officer. Mansperger 21 vs. Public Employee's Retirement System (1970) 6 Cal. App 3d 873, 86 Cal. Rptr. 450, interprets "requirement of incapacity for the 22 23 performance of duty to mean a substantial inability to perform 24 the usual duties of the job." The issue remains, what are the 2' 26 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 27 28 _ c:. _ 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: ~ 1. Subduing violent suspects. 5 2. Engaging in a chase possibly entailing running, 6 climbing, jumping, crawling and other exertions. 7 3. Quelling a disturbance. 8 4. Breaking up fights. 9 5. Dragging or carrying victims out of danger. The officer's complaints are agreed upon by all those 10 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. 18 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) 20 21 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 - 6 - 2 3 4 5 6 7 8 9 10 11 ... 0 0 12 . ... ... II) 1'1 -. .. < .. c- 13 - - -0 a:~.i z~ <C 11:. ~.J'~~I> 14 ........_1> GC:::_~_ ZVl~.U! i:ij~VI:O'" IS z. . - ..JII:QO~" ::c: 0: ~ C ~ 16 1iJ~~ ~f v)cc z.. o 0 11:'" a: z III;'! 17 o CD C'I Z C'I C VI 18 19 20 21 22 23 24 25 26 27 28 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- - 7 _ . . 2 3 4 S 6 7 8 9 10 11 .. 0 0 12 .. . '" .. lfl .. Gl. < !: c- 13 -0 a:~~ z'" <c a::. ~..I. 0011 14 ~..~~II .c:::_..I_ ZCll~..~~ iii~~~ci~ IS ..J~oci~" X:o: Il.o~ 16 1Ii~: a::: lfl C ~ ~ ~ o 0 a::'" a: z "'~ 17 o lD '" Z '" C III 18 19 20 21 22 23 24 2S 26 27 28 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, . 1 2 3 4 5 6 7 8 9 10 11 N 0 0 12 . N N \I) 1'I Gl. .. < !: c- 13 -0 ItJ~ z. <c a:. ~..I.oo. 14 .....:;~. ec=_~_ z~~~u:! 15 W ",III 110" z. - ~a:Qo!" ~o:Q;o~ 16 I&i==~ ~:z: \l)CI: z~ o 0 a:'" It Z w;= 17 o II '" Z 1'I C III 18 19 20 21 22 23 24 25 26 27 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 r. > , 2 3 4 5 6 7 8 9 10 11 H 0 0 12 N . II N 1/1 .. Gl. ~ !: c- 13 -0 a:~i z~ .c:c 0:. :1..1.00. 14 ..~::;~. Clc:::_..I_ Zlll~.~! w~~go!: 15 .J~Qo!" ~o:A.C~ 16 1I.i~~ ~[ I/IC~ zw o z o:d a: "'.. 17 o 1II t'l Z t'l C III 18 19 20 21 22 23 24 25 26 27 28 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. 2 3 4 S 6 7 8 9 10 11 N 0 0 12 N .. '" N III .. Ill.. < !: c- 13 -0 a:Jti Z. <C c. ~.J.~ell 14 "'~N_II .C=_~_ Z~~.u:! _ III III 0 .,. IS 141 z. II 0- ..Jll:i:lo~" :a: 0: L a ~ 16 1Ii~~ ~f IIICe Z" o 0 11:" a: z ~t': 17 0 '" z '" C III 18 19 20 21 22 23 24 2S 26 27 28 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 _ 1 1 _ . I 2 3 4 5 6 7 8 9 10 11 N 0 0 12 N . fII N III .. CIl. C .. c- 13 - - _0 a:~i z~ cc a:. ~..I.0011 14 .....:i~1I olSC:::_..I. Zlll~.~~ i&i~lIl:o'" IS z. - ~a:oo~" ~O:CLO~ 1Ii::~ ~f 16 IIlCc z.. o 0 11:" II: z ...~ 17 o ID '" Z '" C ell 18 19 20 21 22 23 24 25 26 27 28 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 - 12 - 1\ I ~llll\ 110'\ - .&.&1>. ~Ol~ ~ ( l p) 'iT.\1 1 01 l .\IIlIl~'\I\ l Ol '\ n Of I ulll Ih.. ", II". lIhllrt' t'III1f/ell (h Ito" IIf frUI t'1!"'"~ I ;"Ht' '.'u,1 ,Jr., /Oft',l(tI,ng u"d ~IIO" Ihl' ,0"'1',1/11;''''1',,1 1/11.1 1,1""1, Ihc1llh., ',JlIII' /I I,UI' 01 III.. 0'''' ~l/o..Il'dgl'. l'\,l'fl ",;" Ih",1' 11/"1/1'11 ..h,.h c11l'IIrI"I'I" ,("It'd 111''''' ",.. If'/O""tJ/I"fI /I' ht'ht'1 unJ {J\ {II th(J\t' "wltt'r, I "t'ltt'\'t' 1/ 1u "t> true I .11',1",1'. IIl/d('lI'I"W(1I 01 fI'll II II ,h", Ihl' (O""ilol".. I.' I'UI' a"d corrl', I E\ 1'1 IIII'd 0" .1"'1' c11 'piau' o (' aliJufltia Sig"alurt 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