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09/11/2008 PENSION ADVISORY COMMITTEE MEETING MINUTES CITY OF CLEARWATER September 11, 2008 Present: Nathan Hightower Chair Tom Jensen Vice-Chair John Schmalzbauer Committee Member Carlen Petersen Committee Member/Councilmember John Doran Committee Member/Councilmember Paul Gibson Committee Member/Councilmember Brian De Witt Committee Member – arrived 9:02 a.m. Also Present: Stuart A. Kaufman Pension Plan Attorney Leslie Dougall-Sides Assistant City Attorney – departed 11:41 a.m. Joe Roseto Human Resources Director Patricia O. Sullivan Board Reporter The Chair called the meeting to order at 9:00 a.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. 2 - Approval of Minutes – August 14, 2008 Member Petersen moved to approve the minutes of the regular Pension Advisory Committee meeting of August 14, 2008, as submitted in written summation to each board member. The motion was duly seconded and carried unanimously. 3 – Employees to be Heard – None. 4 – Action Items: a. Review and Action on Employee Requests for Regular Pensions: 1. Dennis Brown, Solid Waste/General Services Member Schmalzbauer moved to approve the request for a regular pension for Dennis Brown. The motion was duly seconded and carried unanimously. b. Approval of New Hires as Plan Members: Member Petersen moved to accept the following employees into membership in the Pension Plan: Pension Eligible Name, Job Class, & Dept./Div Hire Date Date Pension Advisory 2008-09-11 1 Samuel Taylor, Solid Waste Worker/Solid Waste 08/04/08 08/04/08 Jane Sloan, Development Rev. Tech. I/Dev. & Ngbrhd Svcs. 11/13/07 08/04/08 Kim Trempe, Customer Service Rep./Customer Service 08/04/08 08/04/08 Kevin Poole, Solid Waste Equipment Operator/Solid Waste 08/18/08 08/18/08 Robert Tucker, Solid Waste Worker/Solid Waste 08/18/08 08/18/08 Jane Sloan originally was hired November 13, 2007 as temporary; transferred to permanent and pension eligible as of August 4, 2008. The motion was duly seconded and carried unanimously. 5 – Pending/New Business a. Hearing on George Agovino’s Request for Disability Pension. Human Resources Director Joe Roseto said this hearing had been delayed at the request of the applicant. Following his October 2007 vehicular accident, George Agovino filed for a job-connected disability pension on January 31, 2008. None of the Pension Plan’s listed exclusions applied. Assistant City Attorney Leslie Dougall-Sides said the City contested the application. Member Petersen moved to accept into evidence the entire file, inclusive of the disability application, police accident report, Workers Compensation records, personnel file, interrogatories, medical records, IME (Independent Medical Exam) report, and the video of the IME physician deposition including transcript. The motion was duly seconded and carried unanimously. The Chair opined that Mr. Roseto represented the City and denied Kenneth Afienko’s objection regarding the City’s witness list. Mr. Agovino’s representative Kenneth Afienko reviewed Mr. Agovino’s career as a Police Officer, since he began working for the City in January 2004. He said Mr. Agovino had no prior injuries. He said Mr. Agovino was on-duty when he was rear-ended. He reviewed the resulting cervical and lumbar spine injuries and medical records, stating that Mr. Agovino no longer could work as a Police Officer. He said Mr. Agovino retired from the City after accepting a Workers Compensation settlement and now teaches. He said Frank K. Kriz, M.D., the City’s IME physician was the only doctor who diagnosed that Mr. Agovino was not disabled and only needed to lose weight. He said 90% of Dr. Kriz’s work was related to disability claims, he did not have hospital privileges, and had not performed surgery in 17 years. Ms. Dougall-Sides said Craig A. Schwartz, M.D. had indicated Mr. Agovino had reached MMI (Maximum Medical Improvement) with an impairment rating of 8%, indicating Mr. Agovino could work, but was limited from bending and lifting more than 25 pounds. She said the City opposed this application as Dr. Kriz had not found a permanent and total disability for Mr. Agovino, and indicated he could return to full duty following four to six weeks of diet and exercise. She said Mr. Agovino had resigned from the City on May 7, 2008, with the stipulation that he would never seek City employment. Committee members indicated they had watched most or all of the video of Dr. Kriz’s deposition. Pension Advisory 2008-09-11 2 Mr. Agovino reviewed his duties as a Police Officer, stating he loved and missed his job. He said he previously worked as a New York City police officer. He discussed his vehicular accident and subsequent medical treatments, including a negative reaction to a pain treatment. He said he participated in rehabilitation but did not have neck surgery due to his fear of complications. He said, under advice of his previous attorney, he accepted the City’s $30,000 Workers Compensation offer and had to stop treatment by Workers Compensation physician William Cottrell, M. D. He said he used the settlement money to pay bills until he could work. He said he now works as a teacher. He said strong medication affected his ability to concentrate and he could only take Motrin for pain. He said on bad days he could not put on his socks. He said Dr. Kriz’s examination was limited. He said he had lost 10 pounds since that examination and still experienced pain. He said he was only nine pounds heavier than when he began working for the City. He said he had to be able to lift more than 25 pounds to work as a police officer. Ms. Dougall-Sides said the Workers’ Compensation settlement was intended to cover future medical expenses. In response to questions, Mr. Agovino said doctors had recommended lifestyle modification related to exercise and weight management. He said he went to three physical therapy appointments but missed others when he needed time to recover from the strenuous therapy activity. He said previous injuries to his right shoulder and knee had been resolved. He said Admed Nematbakhsh, MD had restricted him from lifting more than 20 pounds, or 15 pounds overhead. Concern was expressed that Mr. Agovino had not had a functional capacity evaluation. The meeting recessed from 10:14 to 10:21 a.m. Mr. Afienko reviewed Dr. Kriz’s practice. He said no other doctors had blamed Mr. Agovino’s condition on obesity. Mr. Roseto said the City does not provide functional capacity evaluations for people who no longer work for the City nor qualify for future employment. Mr. Roseto said he had reviewed the Workers Compensation settlement with Mr. Agovino to clarify its terms and had recommended that he be represented by counsel. Neither Mr. Agovino’s performance nor discipline issues were relevant. The City’s Pension Plan attorney chose and hired Dr. Kriz to perform the IME. In response to a question, Mr. Roseto said the City did not have a specific time limit for light duty status. Concern was expressed that there was no way to determine if Mr. Agovino’s condition was preexisting. Discussion ensued regarding the application, accompanying documentation, and if procedural requirements had been met. Concern was expressed that the IME report noted a degenerative condition. Pension Plan Attorney Stuart Kaufman said the preexisting exclusion does not apply and the Plan does not require applicants to undergo invasive surgery. Mr. Roseto said the City did not dispute that Mr. Agovino was injured while on the job. The City contested the application due to compelling information in the IME report that Mr. Agovino’s condition did not meet Plan criteria related to total and permanent disability. In response to a question, Mr. Roseto said a permanent restriction to lifting no more than 25 pounds would preclude someone from serving as a police officer. He discussed the annual certifications the City required from disabled pensioners and related processes. Pension Advisory 2008-09-11 3 Mr. Afienko made his closing remarks, reviewing medical reports and issues that supported Mr. Agovino’s request for a job-connected disability pension. Ms. Dougall-Sides said Mr. Agovino had not availed himself of follow-up pain management procedures. She said Dr. Kriz had reviewed all of Mr. Agovino’s medical records and provided a written opinion that Mr. Agovino was not totally and permanently disabled. She said Mr. Agovino had not met the burden of proof to support his claim. Mr. Kaufman said applicants are required to present clear and convincing evidence that conditions of disability were service-related, permanent, and total. Discussion ensued. It was felt that the physical limitations and functional impediments of Mr. Agovino’s condition made it inappropriate for him to work as a police officer. It was noted that Mr. Agovino’s injuries to his wrist and elbow did not relate to the subject cervical and lumbar spine injuries. It was stated that law enforcement is a contact sport and it was felt Mr. Agovino’s injuries rendered him unable to perform the duties of a police officer. As the claimant’s attorney had questioned Dr. Kriz’s veracity, it was felt that a record of Dr. Kriz’s credentials should have been submitted. Concern was expressed that back injuries are difficult to diagnose. It was hoped that Mr. Agovino’s condition would improve and it was recommended that an annual medical review of his condition be required. It was noted in his report diagnosing an 8% MMI, Dr. Schwartz’s had indicated he did not know if Mr. Agovino’s injuries were total and permanent. Member Doran moved that George Agovino was disabled due to a job-connected injury. The motion was duly seconded and carried unanimously. Member Gibson moved that George Agovino was disabled and such disability was from a cause other than those listed as general disability exclusions, and such disability rendered the participant unable to perform work as a Police Officer. The motion was duly seconded and carried unanimously. Member Gibson moved that George Agovino was disabled and such disability was likely to be continuous and permanent. The motion was duly seconded and carried unanimously. PAC members thanked Mr. Agovino for his service to Clearwater and wished him well. Members were commended for their thorough review and the seriousness of their responsibility as stewards of the City’s pension. 6 – Director’s Report: Mr. Roseto reported the Pension Plan attorney would present defined benefit/defined contribution plan information to the Pension Trustees on September 15, 2008. 7 – Committee Members to be Heard In response to a recommendation that medical reports be written in layman’s terms, Mr. Kaufman said his office would draft a short physician report form, as part of the application Pension Advisory 2008-09-11 4 package, for doctors to mark if an applicant is disabled or not. It was recommended that the City provide doctors a list of job requirements to help them determine if someone is fit for duty. Discussion ensued regarding the advantages of a doctor being present to testify and answer questions when the PAC considers permanent and total disability applications. It was said it would be worth the cost. It was suggested that applications be reviewed one month prior to a hearing to determine if the PAC may want to subpoena doctors to testify and answer committee questions, especially if the IME doctor's opinion differs from other medical reports. Concern was expressed today's decision would cost the Pension plan more than $1 million. 8 - Adiourn The meeting adjourned at 11 :52 a.m. ~~ &~_ !/L Chair / Pension Advisory Committee / Pension Advisory 2008-09-11 5