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HomeMy WebLinkAbout03-22-2001 Minutes THE CITY OF OCOEE POLICE OFFICERS' /FIREFIGHTERS' RETIREMENT BOARD MEETING - March 22, 2001 Chairman WILSON called the meeting of the City of Ocoee Police Officers'/Firefighters' Retirement Trust Fund to order at 1:05 p.m. in the Commission Chambers of City Hall. The roll was called and a quorum declared present. PRESENT: Chairman Wilson, Secretary Firstner, Members Coschignano, Gledich, and Williams. Also present were Gordon Lane and his attorney, Geoffrey Bichler, Attorney Dehner, and Sue Mela for Recording Secretary Lewis. Chief Strosnider joined the meeting in progress at 1:15 p.m. ABSENT: None GORDON LANE REQUEST FOR DISABILITY PENSION Attorney DEHNER addressed the meeting to explain to those present three things: 1) The procedures the Board would be operating under; 2) The substantive plan provisions governing the Board's determination in the hearing; and 3) The general law that was applicable to the Board's decision. In further explanation of these items, he advised that the Board would be operating under Rule 14 as adopted by the Board. Within those rules, this was the initial hearing phase that was a discussion phase format among the Trustees and the claimant and his attorney. The scheduled time for the initial phase would expire on May 2, 2001. On or before that date the Board had a responsibility to render an initial order on the matter. If the Board did not believe it had competent and substantial evidence before it to support the request of the Claimant, either by agreement the initial phase could be extended or the Board would render an order on that date. Should the order that was rendered at that time and not grant the request, then Mr. Lane would have an opportunity to ask the Board for further consideration and opportunity to attempt to perfect his claim. That would put the request into the second tier of the procedures which was a formal administrative hearing. Attorney DEHNER explained that the request by Mr. Gordon had been amended to a not -in -line disability claim. The standard for entitlement that must be proven by the Claimant by the greater weight of the evidence was that he was totally and permanently disabled to the extent that he was unable to render useful and efficient service as a firefighter. The three provisions were: total, permanent, and the inability to render useful and efficient service. As traditionally construed in Florida, that standard was not only that he had to prove to the Board by the greater weight of the evidence that he was unable to perform the specific duties that he was doing prior to the injury upon which this claim was based, but also that he would not be able to perform other duties which the Chief may be willing to make available to him at no reduction in rank or pay. The burden of proof on those issues was on Mr. Lane and the weight of the evidence was by the khe greater weight of the evidence and was just over 50 %. The three general legal principles that applied to this proceeding were: 1) that the Board's decision, whatever it may be, had to be Police Officers' /Firefighters' Retirement Trust Fund GORDON LANE DISABILITY HEARING March 22, 2001 supported by substantial and competent evidence; 2) the Board must comply with the essential requirements of law which essentially meant that you would apply the plan provisions in the applicable law to the facts that were presented before them; and 3) that the Board record due process to the Claimant. The Board had followed the rules to this point and would continue to do so. Attorney DEHNER recommended that the Board give the Claimant every opportunity to prove his entitlement to the Board. He reminded the Board that Mr. Lane and his attorney were advocates to receive the benefit. This was not an adversarial proceeding and the Board was not to find against the benefit, it was to make a decision on what was in the record as presented. The reason for that was that Mr. Lane was a plan member and, as such, he was owed a duty of equity and fairness from the Board and that Attorney Dehner, in his capacity as attorney for the Board, was charged with the responsibility to help assure that the record before the Board supported its decision. Attorney DEHNER explained that at the conclusion of the initial hearing phase, the full hearing phase, should that be reached, and if denial was there at the end of the full hearing phase, the recourse for Mr. Lane would be to file a petition with the Circuit Court for appellate review. The Judge would review the record brought before the Board and would apply the three legal standards already discussed. He would look to the record to see that the Board's decision complied with each of those three requirements. If the Judge found that it did, it would end in an %ow affirmative decision. If he found it did not, it would be remanded back to the Board for further proceedings. Mr. Lane's attorney, Geoffrey BICHLER, was called upon for comments. He reminded the Board that this claim was a simple disability, not an in- line -of -duty disability and that, because that may make some difference, he wanted to be sure that the Board understood that. Attorney DEHNER thanked Attorney Bichler and said that would be the next issue. The first issue before the Board is the total and permanent inability to perform useful and efficient service. Should that be proven the disability, then the next issue before the Board would be causation and whether or not, in the terms of your ordinance, it was directly caused by performance of duty. Should the Board determine Mr. Lane was disabled, that would not be an issue because if he did prove total and permanent disability, then it would be not -in -line. It was very important that the record was clear on this because the interrogatories, which Mr. Lane responded to, indicated on Question 3 that it was a service- related claim. Attorney BICHLER began a discussion about the medical evidence. He mentioned that it was somewhat confusing because there were a number of conditions to be considered. There was a Hepatitis C condition that had a presumptive act that may be applicable. There was a hypertension condition that also might have a presumption that could be considered work related based on that presumption. Then there was a back injury which actually dates back to an off - duty incident that may have been aggravated over the course of time by work as a firefighter. In 2 Police Officers' /Firefighters' Retirement Trust Fund kir GORDON LANE DISABILITY HEARING March 22, 2001 order to make this as simple as possible for Board consideration and to avoid the necessity of proving causal relationship, Mr. Lane simply wanted to proceed with this as a straight disability claim. Attorney DEHNER advised that, due to this being a straight disability claim, the amount of benefit was not a relative issue in the Board's consideration. Since Mr. Lane had a little over fifteen (15) years of service, there was a 3% benefit rate. The minimum in- line -of -duty benefit rate was 42 %; this was accrued so that Mr. Lane would be entitled to 45 %. The records would reflect that the claim was being amended or clarified to show that Mr. Lane was applying for not- in -line disability. A general discussion continued and after several questions, Attorney DEHNER again reminded the Board that the issue before them was to determine whether or not Mr. Lane was totally and permanently unable to render useful and efficient service as a firefighter which was traditionally construed as the inability to do the same duties he was doing prior to the injury and also the inability to do any duties that could be properly assigned. Attorney BICHLER began his discussion with the fact that the Independent Medical Evaluation that had been distributed to all of the Trustees, had left some interesting questions. Dr. Sharfmin, kire a Board Certified Neurologist had done the IME, and according to Mr. Lane, this was a very cursory evaluation consisting primarily of testing his reflexes, asking him a few questions and reviewing some medical records. Dr. Sharfmin has offered an opinion that Mr. Lane was capable of performing the duties of a firefighter. Attorney Bichler said that he believed this opinion was at odds with the rest of the medical evidence as seen from an orthopedic standpoint. He advised that Mr. Lane had seen a number of physicians. He had his own treating physician, Dr. Brown, who had offered an opinion that Mr. Lane was not capable of performing the essential functions of a firefighter and may be a danger to himself and others if he tries to return to that type of work. This presented an interesting contract that should be looked at by the Board. Dr. Sharfmin did not seem to take the Hepatitis issue into account that must be considered part of the record when looking at the overall disability of Mr. Lane. A liver biopsy showed that Mr. Lane had Grade 2, Stage 2 chronic Hepatitis that tends to exacerbate any type of underlying orthopedic problems he has. If the Board believed that it was necessary, he indicated they would certainly supplement the record with the deposition of Dr. Sanchez who had been treating Mr. Lane. He was an infectious disease specialist and could testify about this. The Board needed to be aware that there might be a potential problem if Mr. Lane was put in a situation as an emergency rescue person or a firefighter with infectious Hepatitis C. The last thing that should be pointed out about Dr. Sharfinin's report was that it seemed a bit contradictory in that in one sense he could perform the essential functions of a firefighter but then in response to Question 6, he says that the physical limitation would best be addressed through a functional capacity evaluation. The Claimant had no objection whatsoever to have Mr. Lane perform a functional capacity evaluation to further determine the physical restrictions resulting from his orthopedic condition. kr+' 3 Police Officers' /Firefighters' Retirement Trust Fund rr GORDON LANE DISABILITY HEARING March 22, 2001 In response to a question as to whether or not, anywhere in the medical records available at this point, where any physician stated that, within the language of the ordinance, that Mr. Lane is totally and permanently unable to render useful and efficient service, Attorney BICHLER responded that he did not think so, within the language of the ordinance. He went on to say that the report of November 8, 2000 from Dr. Brown which had been submitted with the original application, might be the closest when it stated, "his neck injury currently is very significant. I believe it places him at great risk if he continues with manual labor." He indicated that it was his belief that firefighting work as manual labor falls within that general definition. Attorney DEHNER interjected that his role was to see that the records support the Board's decision, whether granted or denied, because of the responsibility to Mr. Lane as a plan member as well as the other plan members, and that the strongest medical evidence was from an osteopathic physician, not an M.D. He expressed his concern about substantial and competent evidence and weight of the evidence had been the IME report where Dr. Sharfmin specifically stated and answered the question, "Is it total ?" and he responds, "It is not total." Attorney BICHLER responded that he felt it was understandable that Attorney Dehner had some concern and advised that he was also a little puzzled about what Dr. Sharfmin had to say. He offered, should the Board dictate, to visit with Dr. Sharfmin so that he and Attorney Dehner could talk more specifically about his responses and his understanding of what a firefighter had to do and whether or not this man was actually capable of that. Attorney DEHNER said that, often times, a visit with the physician was a good way to address the concerns of the Board and, after the first meeting, they would identify specific questions, and the best way to get those questions resolved was by deposition. This provided more specific answers than asking for detailed response by correspondence. Another concern of Attorney Dehner had been in Dr. Sharfmin's letter regarding the light of the standard of substantial and competent evidence. Dr. Scharfmin had referred to no objective evidence of the injury upon which the claim was based. He mentioned responses based on subjective complaints of Mr. Lane. Trustee GLEDICH inquired about the issue of the Hepatitis C, and whether or not Mr. Lane would be hired if he were applying today for the position of firefighter and had to undergo the physical examination in order to take the position. Chief STROSNIDER and Attorney DEHNER both responded with a "Yes," and advised that there were firefighters with Hepatitis C who were currently doing full duty. Attorney DEHNER reminded the Board that the claim was based on the injury. It was not based on hypertension or on Hepatitis C, except, as Attorney Bichler had mentioned, that there might be some inter - relationship between the orthopedic condition and the fact that he had Hepatitis C. 4 Police Officers' /Firefighters' Retirement Trust Fund low GORDON LANE DISABILITY HEARING March 22, 2001 More discussion ensued among the Board, and Attorney DEHNER was asked about the purpose of the examination done by the independent doctor since the reading of the report from that Doctor had not given a clear testimony as to Mr. Lane's condition. Attorney DEHNER responded that the letter was not as clear as it might have been, and stated that it was not unusual that it is not. This was one of the reasons why a deposition was useful. With that, there was no cause for interpretation about what the Doctor was saying. The Doctor does say that Mr. Lane was at maximum medical improvement. This was typically the point where the physician believed that medical science had brought the person as far as he was going to be. On the other hand, he was saying that he was not total and further said that, if Mr. Lane had any limitations, the physician cannot determine at this point what they were, and, thus the recommendation for the functional capacity evaluation. Attorney DEHNER reminded the Trustees that, given the fact they were fiduciaries of the Pension Fund and to members of the plan, they could not legally or consistently give fiduciary responsibilities or disability pension without an independent medical examination being performed. They could not base a decision on the reports of a treating physician because, in most cases, treating physicians will do all they can to support their patient. Dr. Sharfmin indicated that he had reviewed all of the records provided to him, that he had an hour -long office visit with Mr. Lane, and he had responded to the questions that had been posed to him. 1 Gordon LANE was asked several questions about his examination and whether he had told the physician of his complaints about his neck and headaches, etc. Mr. Lane advised that the only tests performed were a tap on the knee with hammer and a thumbnail scratch on the bottom of his foot. He had not told the physician of his complaints because the physician did not specifically ask about anything like that. He had indicated that during the time he was in the office, the Doctor was going through the records and dictating into a tape recorder. When asked the purpose of the physician to do a knee tap, Attorney DEHNER responded that the nature and extent of the exam was determined by the physician according to the case, and that if he felt it had been important for Mr. Lane to have additional testing, he would have notified the Board to that effect. The additional testing he did recommend was the functional capacity evaluation. The general discussion among the Trustees indicated that they did not feel the IME report was adequate and that it raised more questions and concerns. They indicated that in order to make a sound decision; they needed a doctor who would be more conclusive because that was what was needed. Attorney DEHNER stated that the Board could request another examination done by another physician or Mr. Lane could go to his treating physicians and bring more evidence back from his physicians to address the concern. Gordon LANE advised the Board that his physicians were never posed with the exact questions 5 Police Officers' /Firefighters' Retirement Trust Fund they GORDON LANE DISABILITY HEARING March 22, 2001 that the Board would like to have answered. He had never asked them to give their opinion on whether he should be working. Attorney BICHLER acknowledged that he realized their burden of proof and recognizes that the documentation submitted to date might not be adequate and agreed to see that was corrected after this meeting. Attorney DEHNER made the recommendations that the Board ask for additional submission of medical evidence to support the claim with specific questions as had been addressed in this meeting, and that the Board either have another IME done by another physician and/or a deposition of Dr. Sharfmin. He suggested that Mr. Lane and Mr. Bichler might want to consider doing more (tests) such as a CAT Scan which gave different angles and the functional capacity evaluation that would give the Board much more information than was available at this time. After additional discussion among the parties, with motion duly made and seconded, it was unanimously RESOLVED To have another IME done by another physician, receive additional submissions and medical evaluations from Mr. Lane's treating physicians, and after receiving all of that information, depose Dr. Sharfmin and any other physicians as determined necessary. A concern was raised that it may not be possible to have all of this information available by May 2, even though it would be accomplished as diligently as possible. With a consensus by all parties, upon motion duly made and seconded, it was RESOLVED To allow an indefinite extension, date to be determined at a later time, of the initial hearing on the client, Gordon Lane, of a disability claim for Mr. Lane's attorney, Geoffrey Bichler, to be given the opportunity to submit additional medical evidence, for another IME and depositions with a special meeting to be scheduled upon completion of the designated matters. Gordon LANE informed the Board that he had not been cleared to go back to work and the longer this hearing takes, the more difficult it was for him, as he is receiving no compensation at all. Attorney DEHNER assured Mr. Lane that this was important for all concerned, that everything. was being done as quickly as it could be done based on the submission of the records, and that the Board would continue to act as quickly as possible. Attorney BICHLER advised that they would expedite getting the information from the various sources and submitting it back to the Board as soon as possible. Attorney DEHNER assured Mr. Bichler that there would be a good faith effort to get this hearing done as soon as possible. 6 Police Officers' /Firefighters' Retirement Trust Fund GORDON LANE DISABILITY HEARING March 22, 2001 Attorney BICHLER and Gordon LANE thanked the Trustees for their time and departed the meeting. EMERGENCY ITEM — FIDUCIARY INSURANCE The Board was advised that the insurance would expire on March 31, 2001. Trustees Coschignano, Firstner, and Wilson agreed to meet prior to March 31, 2001 to get the bill approved and paid. ADJOURNMENT There being no further business to come before the meeting, it was, on motion duly made and seconded, unanimously adjourned at 1:50 p.m. Respectfully submitted, .Cdc-e-- 4,di-; Ju Lewis, Recording Secretary the