04/08/2004
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PENSION ADVISORY COMMITTEE MEETING
CITY OF CLEARWATER
April 8, 2004
Present: John Lee
Hoyt P. Hamilton
Frank Hibbard
William C. Jonson
Nathan Hightower
John Schmalzbauer
Vice-Chair
Committee Member/Councilmember
Committee Member/Councilmember
Committee Member/Councilmember
Committee Member
Committee Member
Absent: Tom Jensen
Committee Member
Also Present: Joe Roseto
Leslie Dougall-Sides
Stuart Kaufman
Brenda Moses
Human Resources Director
Assistant City Attorney
Pension Advisory Committee Attorney
Board Reporter
The Vice-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 - March 4. 2004
. Member Jonson moved to approve the minutes of the regular meeting of March 4, 2004,
as submitted in written summation to each board member. The motion was duly seconded and
carried unanimously.
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3. Emplovees to be Heard - None.
4. Action Items:
a. Review and Action on Employee Requests for Years of Service Pensions:
1. Robert Brown, Gas
2. Susan Stephenson, Official Records & Legislative Services
3. Alphonso Hinson, Parks & Recreation
4. David Rieumont, Police
5. Thomas Bissonnette, Customer Service
6. Richard Tyler, Finance
7. Michael Mobley, Police
Member Hibbard moved to approve Years of Service Pensions for Robert Brown, Susan
Stephenson, Alphonso Hinson, David Rieumont, Thomas Bissonnette, Richard Tyler, and
Michael Mobley. The motion was duly seconded and carried unanimously.
Pension Advisory 2004-04-08
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b.
Review and Action on Employee Requests to Vest Pensions:
1. Linda Stverak, Police
2. Andrew Bachtel, Public Utilities
3. Carlos Ulloa, Customer Service
Member Hamilton moved to approve an employee request to vest pension for Linda
Stverak, Andrew Bachtel, and Carlos Ulloa. The motion was duly seconded and carried
unanimously.
c. Approval of New Hires as Plan Members:
As of March 24, 2004, the City had 1770.93 of 1895.4 budgeted positions. Eugenia
Larson was originally hired as part-time on August 12, 2002; status changed to full-time and
pension eligible as of February 23, 2004.
Member Jonson moved to accept the following employees into membership in the
Pension Plan:
Name, Job Class, & Dept./Div.
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Zebulon Veale, Firefighter/Fire
James Van Zandt, Firefighter/Fire
Anthony Rocco, Firefighter/Fire
Marcelino Lugo, Firefighter/Fire
Heath Brenner, Firefighter/Fire
Timothy Becker, Firefighter/Fire
Stephen Avise, Firefighter/Fire
Matthew Schad, Firefighter/Paramedic/Fire
Sean Lefort, Firefighter/Paramedic/Fire
Peter Gushee, Firefighter/Paramedic/Fire
Norman Kellogg, Parking Enforcement Specialist/Eng.
James Fields, Custodial Worker/Police
Eugenia Larson, Parking Enforcement Specialist/Eng.
Shelby Brown, Code Enforcement Insp.lDev. & Nbhd Svc.
Robert Clark, Jr., Solid Waste Worker/Solid Waste
Richard Calhoun, Police Officer/Police
Karen Maldonado, Rec. Specialist/Parks & Rec.
Carol Cortright, Public Information Specialist/Library
Christopher Lollis, Ind. Pretreatment Tech.lPublic Utilities
John Moros, Gas Tech. I/Gas
Christopher Priest, Police Officer/Police
Pedro Fernandez, Gas Tech. I/Gas
Leslie Proper, Parks Svc, Tech. IIParks & Rec.
James Keller, Life Hazard Safety Insp.lFire
James Satterfield, Life Hazard Safety Insp.lFire
Hire Date
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/23/04
2/23/04
8/12/02
2/23/04
2/23/04
1/12/04
3/8/04
1/12/04
3/8/04
3/8/04
1/12/04
3/22/04
3/22/04
3/22/04
3/22/04
.
The motion was duly seconded and carried unanimously.
Pension Advisory 2004-04-08
Pension Elig.
Date
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/9/04
2/23/04
2/23/04
2/23/04
2/23/04
2/23/04
1/12/04
3/8/04
1/12/04
3/8/04
3/8/04
1/12/04
3/22/04
3/22/04
3/22/04
3/22/04
2
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5.
Pendinq/New Business:
a.
Frank Young-Set Hearing for Non-job-connected Disability Pension
PAC (Pension Advisory Committee) Attorney Stuart Kaufman stated the IME
(Independent Medical Examination) for Frank Young was performed yesterday. If staff receives
the report within the next two weeks, the hearing for a non-job-connected disability pension for
Frank Young could be heard on May 13, 2004.
Member Hamilton moved to set the hearing date for a non-job-connected disability
pension for Frank Young for May 13, 2004. The motion was duly seconded and carried
unanimously.
b. Evers Maxie-Hearing for Non-job-connected Disability Pension
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Mr. Kaufman reported the PAC had denied the non-job-connected disability pension
request by Evers Maxie in October 2002, as there was no evidence indicating he was
permanently and totally unable to render useful and efficient services as a Solid Waste worker
for the City. Subsequently, Mr. Maxie filed a non-job-connected disability pension request. Mr.
Maxie was sent to A. J Scoma, M.D., who performed an IME. Mr. Kaufman explained the
burden falls on the applicant to prove that he is disabled, that the disability is likely to be
continuous and permanent from a cause other than as specified in the exclusions, and the
disability must render the applicant unable to perform any useful, meaningful, and necessary
work for the City in an available position for which he is reasonably qualified or for which he
may be reasonably trained to perform the exclusions. If any of the exclusions are present, the
PAC must deny the disability application. Mr. Kaufman reviewed the eight exclusions and the
hearing process.
Evers Maxie, applicant, represented himself. He said he is unable to do the things he
likes to do. He stated he cannot walk to his mailbox without stopping to rest. He stated he is
on several medications and must use the restroom frequently. He said he loves his job, but is
physically unable to work.
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Assistant City Attorney Leslie Dougall-Sides reported that Mr. Maxie's previous disability
application was denied by the PAC at its October 2002 meeting due to the nonpermanence of
the disability. The physician indicated that Mr. Maxie had not been compliant regarding his
treatment plan. The PAC had requested that Mr. Maxie be given some time to see if he would
comply with his medication regime and improve his condition. Mr. Maxie applied for a disability
pension again in November 2003, at which time his condition seemed to have worsened. Mr.
Maxie has been on leave without pay for a lengthy period, however the City has been paying his
medical insurance benefits with the understanding that he might be able to return to work and
repay the premiums in the future. Mr. Maxie was hospitalized in July 2003. The IME by Dr.
Scoma has changed since his original finding in October 2002. Dr. Scoma now finds that Mr.
Maxie is totally and permanently disabled. He indicates Mr. Maxie has been unwilling and
unable to use his medications and treatments for one of his conditions, found his disability was
not service-connected, and his medical condition was entirely related to substance abuse. Mr.
Maxie's job application states he had undergone surgery. Evidence in the record indicates he
had a pre-existing condition when he was hired. There is nothing in the record to contradict that
information. The City feels although Mr. Maxie has been found to be totally and permanently
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disabled, the two exclusionary factors apply, which prevent him from qualifying to receive a
disability pension.
Member Jonson moved to accept into evidence the documents provided by staff: 1)
letter dated March 3, 2004, from A. J. Scoma, M.D., P.A.; 2) letter dated July 9, 1999, from
Restituto D. Malonso, M.D.; and 3) packet of information provided at the March 4,2004,
meeting. The motion was duly seconded and carried unanimously.
Mr. Maxie stated he had no witnesses or evidence to present. He reiterated he takes
medication and is unable to return to work.
Steven Sarnoff, union representative, said Mr. Maxie is a former member of the CWA
union. His situation is a result of an illness. Mr. Maxie worked for the City for 18 years. He
possessed a CDL license and never had difficulty on the job. Mr. Sarnoff stated he has not
read the IME report regarding Mr. Maxie's condition. He said Mr. Maxie has in good faith tried
to improve his medical condition. Mr. Sarnoff requested in recognition of his work record with
the City, his disability request be granted.
In response to a question, Mr. Sarnoff said Mr. Maxie participated in the City's EAP at
various times as directed by the City. He did not know the results.
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Human Resources Director Joe Roseto said when this case was heard in October 2002,
the PAC wanted to ensure that Mr. Maxie was afforded assistance to improve his condition. At
that time, a decision was made to continue Mr. Maxie's health benefits. The Human Resources
staff has followed up with Mr. Maxie on a number of occasions in an effort to assist him.
Unfortunately, based on the medical information received, those efforts were unsuccessful. It
was remarked the PAC previously had some concerns about Mr. Maxie's compliance with his
medical regime.
In response to a question, Mr. Roseto said although Mr. Maxie has 18 years of service
with the City, he has been in a no-pay status, and he cannot draw a length of service pension
for two years. If the PAC denies this disability application, Mr. Maxie's employment would end
along with his health benefits. He would have the option to withdraw the amount of money he
contributed to the pension plan, at which time he would no longer be eligible for future pension
benefits, or wait two years to draw his length of service pension.
In response to a question, Mr. Maxie stated he has not had a drink since the World
Series game. He said he had an operation before Thanksgiving and has had no alcohol since
that time.
Ms. Dougall-Sides requested that the October 1, 2002, Pension Advisory Committee
Special Meeting minutes be accepted as part of the record. Consensus was to accept those
minutes as part of the record.
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In response to a question from Ms. Dougall-Sides, Mr. Roseto said according to the
IME, Mr. Maxie is totally disabled. There is no reasonable expectation that the City could offer
him reasonable and meaningful work. The City would not pay for Mr. Maxie's health insurance
once his employment ceases. If Mr. Maxie decides to wait two years when he is eligible to draw
his length of service pension, he would be eligible to apply for medical coverage through the
City at his own expense.
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. In response to a question, Ms. Dougall-Sides referred to page 23 of the record
referencing Mr. Maxie's pre-employment medical examination and original job application, and
an August 2000 assessment done by Dr. Jacob, who stated that Mr. Maxie's past medical
history included surgical intervention.
Consensus was to accept into the record the August 2000 PAC meeting minutes.
The meeting recessed from 9:50 to 9:55 a.m.
Ms. Dougall-Sides referred to a July 9, 1999, letter from Dr. Jacob regarding Mr. Maxie's
medical condition.
In response to a request, Ms. Dougall-Sides reviewed the record for any evidence
indicating that Mr. Maxie has diabetes related to alcohol. It was remarked that Dr. Scoma's
report on page 314 states "If he refuses to take care of himself physically and medically then
his diabetes will continue to cause decline in his overall medical condition." Dr. Scoma writes
on page 313 that Mr. Maxie's medical status includes "Significant weight loss related to his
diabetes, alcohol and possibly pancreatic insufficiency."
In response to a question, Mr. Roseto said the City can assist Mr. Maxie in enrolling in a
alcohol treatment plan, however he must be a willing participant.
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Ms. Dougall-Sides said on page 270 of a Morton Plant Mease Health Center report, Dr.
Malonso indicated the impression was "diabetes secondary to disease of exocrine pancreas,"
possibly relating a condition between pancreatic problems with diabetes being secondary.
It was remarked Item #1 on page one of the most recent IME dated March 2004, from
Dr. Scoma states, "Diabetes mellitus, insulin treated, out of control with seven hours after meal
blood glucose of 507..." and Item #4 on page 2 states"... He has been unwilling and unable to
utilize his medications and treatments..." It appears one statement indicates his diabetes is out
of control and that he is unable and unwilling to utilize medications to control it. It was
questioned if the linkage exists due to the condition or is there any evidence that Mr. Maxie is
not taking his medications and following protocol. Ms. Dougall-Sides said in a previous hearing,
there was evidence that Mr. Maxie had not been previously taking insulin medication, and the
PAC had hoped Mr. Maxie would work with his endocrinologist to bring his medical condition
under control. The endocrinologist's notes throughout the record indicate changes in
medication, however over the past two years it apparently did not work. Ms. Dougall-Sides said
to work, medication must be taken appropriately.
Mr. Maxie said he was hospitalized for a cyst around Thanksgiving. He has been taking
his medication and shots as required, checks his Accuchek machine, but has not gained his
strength back. In response to a question, Mr. Maxie said prior to his operation, he took his
medication, however his Accuchek machine was not working properly. He said he understands
how to control his diabetes and regularly checks his Accuchek machine. He said he received a
new machine a few days ago. He also has a nurse assist him once a week with his medication.
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Ms. Dougall-Sides said various medical reports throughout the record indicate evidence
of noncompliance with his medical regime at home.
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Mr. Maxie said he needs an income and hopes after all the years he worked for the City
that he will be able to receive his pension. He said he is doing the best he can.
Ms. Dougall-Sides this is an unfortunate situation, as Mr. Maxie has been a good
employee. The IME physician's report indicates that two of the exclusionary factors apply,
which prevent Mr. Maxie from qualifying to obtain a disability pension.
In response to a question, Mr. Roseto reiterated Mr. Maxie's options. He said that Mr.
Maxie is two years from a length of service retirement. His time in a no-pay status is not
credited to his pension eligibility date. His pension would be based on his length of service with
the City. His other option is to receive a cash payment of all funds he contributed to the
pension, excluding the City's contribution.
In response to a question, Mr. Kaufman said although the City has not taken the position
that it applies, Mr. Maxie has been negligent in that he has not taken medication or controlled
his diabetes, and that criteria in the pension regulations stating "Each participant who is not a
police officer or firefighter who is claiming disability benefits shall establish, to the satisfaction of
the committee, that such disability was not occasioned primarily by: willful, wanton, or gross
negligence of the participant" could be applied in this case. Mr. Kaufman said the disability
application was filed based upon the diabetes and pancreatitis. Mr. Kaufman said the PAC
must find that the disability was not occasioned by excessive or habitual use of any drugs,
intoxicants, or alcohol.
Member Hightower moved that Mr. Maxie's disability is total and permanent, and that it
is not service-connected. The motion was duly seconded and carried unanimously.
Discussed ensued and concern was expressed about the role that diabetes played in
Mr. Maxie's condition. It was remarked: 1) The record clearly indicates evidence of continued
alcohol consumption and abuse; 2) The record indicates there was a pancreatic condition as a
result of that abuse; 3) The record is unclear as to whether the diabetes is a result of that
abuse; 4) Some references in record relate to diabetes being secondary to the pre-existing
condition; 5) There does not appear to be any reference that the abuse of alcohol was the
cause of the diabetic condition; 6) It is inconclusive that the alcoholic circumstance is causing
an unwillingness to abide by medical protocol to treat the problem; 7) It appears for 18 years,
he has performed his duties well with some slight issues that occurred which are not apparent;
8) Diabetes is difficult to control and can be greatly affected by diet as well as alcohol, however
nothing in the record indicates Mr. Maxie needs to control his diet; 9) A treatment plan would
not help Mr. Maxie unless he is a willing participant; and 10) The PAC has a responsibility to the
pension plan to judge all cases based on the evidence.
Member Hightower moved that based on the evidence entered into the record, an
exclusionary factor applies as defined in the plan, regarding the excessive or habitual use of
alcohol. The motion was duly seconded.
In response to a question from Mr. Kaufman, Mr. Hightower said that is the only
exclusionary factor contained in his motion.
Discussion ensued and it was suggested the PAC must consider whether or not the
applicant "primarily" used alcohol to contribute to the diabetes condition to the point that Mr.
Maxie is disabled, or if this is a case of uncontrolled diabetes aside from alcohol consumption.
Pension Advisory 2004-04-08
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. Upon the vote being taken, Members Hamilton, Hibbard, Jonson, Schmalzbauer, and
Lee voted "Aye"; Member Hightower voted "Nay". Motion carried.
Mr. Kaufman stated the PAC has determined that Mr. Maxie is not entitled to a disability
benefit based upon there being an exclusion present, which is that the disability was
occasioned "primarily by excessive or habitual use of any drug, intoxicants, or alcohol."
Mr. Roseto said staff will ensure Mr. Maxie understands his options regarding his
pension.
Mr. Kaufman informed Mr. Maxie that the Board will enter a final order. Once he
receives it, he will have 30 days to appeal the decision.
Member Jonson moved to close the hearing. The motion was duly seconded and
carried unanimously.
The meeting recessed from 10:19 to 10:23 a.m.
c. Joseph Rinaldi-Hearing for Non-job-connected Disability Pension
.
Mr. Kaufman said Joseph Rinaldi was a police sergeant who filed a disability application.
Subsequent to the application, Mr. Rinaldi died on November 8, 2003, due to lung and brain
cancer. Mr. Kaufman said as he had determined the PAC legally could hear the case, adopt
the medical records as the required IME documentation, and determine if Mr. Rinaldi was totally
and permanently disabled.
Member Hamilton moved to accept the medical records from the Florida Cancer Institute
and the Radiology Associates as the independent medical examination record, and the letter
dated November 6,2003, from Lawrence D. Hochman, D.O., DABR. The motion was duly
seconded and carried unanimously.
Member Schmalzbauer moved to grant the non-job-connected disability request for
Joseph Rinaldi, based upon evidence that Mr. Rinaldi's condition was total and permanent. The
motion was duly seconded and carried unanimously.
Member Hamilton moved that there are no exclusions. The motion was duly seconded
and carried unanimously.
Member Hightower moved to close the hearing. The motion was duly seconded and
carried unanimously.
6. Director's Reports - None.
7. Committee Members to be Heard
.
Member Hightower questioned if the PAC needs to elect a Chair. Member Hibbard said
City Council will discuss the composition of advisory boards at their next meeting. It was
suggested waiting until after that meeting to elect a Chair.
Pension Advisory 2004-04-08
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Members Hightower and Lee thanked staff for the thoroughness of the board packets.
8.
Adiournment
The meeting adjourned at 10:29 a.m.
~~
hair
Pension Advisory Committee
!i~f1d1e'l17 {)Y<J
, Board Reporter
Pension Advisory 2004-04-08
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