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11/04/2004 . . . PENSION ADVISORY COMMITTEE MEETING CITY OF CLEARWATER November 4, 2004 Present: John Lee Nathan Hightower Tom Jensen John Schmalzbauer Hoyt P. Hamilton Frank Hibbard Carlen Petersen Also Present: Stuart Kaufman Joe Roseto Brenda Moses Chair Vice-Chair Committee Member Committee Member Committee Mem/Councilmember - departed 10:59 a.m. Committee Member/Councilmember Committee Member/Councilmember Pension Advisory Committee Attorney Human Resources Director 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 Member Petersen moved to approve the minutes of the regular meeting of October 14, 2004, 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 Item a. Review and Action on Employee Requests for Regular Pensions: 1. Scott Wilson, Police 2. Terry Naumann, Police Scott Wilson, Police Officer, Police Department, was employed by the City on October 29, 1983, and his pension service credit is effective on that date. His pension will be effective November 1, 2004. Based on an average salary of approximately $58,648 per year over the past five years, the formula for computing regular pensions, and Mr. Wilson's selection of the 75% Joint & Survivor Annuity, this pension will approximate $33,967 annually. Member Hibbard moved to approve the request for regular pensions for Scott Wilson and Terry Naumann. The motion was duly seconded and carried unanimously. Pension Advisory 2004-11-04 1 . Human Resources Director Joe Roseto reported Terry Naumann has withdrawn her request. Member Hightower moved to rescind and amend the motion to approve the request for a regular pension for Scott Wilson. The motion was duly seconded and carried unanimously. b. Approval of New Hires as Plan Members: As of October 21, 2004, the City had 1797.14 FTEs out of 1895.4 budgeted positions. Member Schmalzbauer moved to accept the following employees into membership in the Pension Plan: Pension Elig. Name. Job. Class. & Deot./Div. Hire Date . Frank Milanesi, Police Property Clerk/Police 09/20/04 Sandra Doria, Field Service Representative/Customer Service 09/20/04 Daniel O'Brien, Police Officer/Police 10/04/04 John Hunter, Wastewater Trtment Plant Op. Trnee/Public Util. 10/04/04 Derek Saunier, Police Officer/Police 10/04/04 Ian Cameron, Police Officer/Police 10/04/04 Barry Balmer, Police Officer/Police 10/04/04 Chad Mcintyre, Police Officer/Police 10/04/04 Todd Turpack, Police Officer/Police 10/04/04 Michael Williams, Police Officer/Police 10/04/04 Dzavit Lika, Custodial Worker/Library 10/04/04 George Phillips, Police Officer/Police 10/04/04 Eric Eisenhardt, Police Officer/Police 10/04/04 Shannon Hunt, Police Information Technician l/Police 10/18/04 Bruce Hayes, Public Utilities Technician I/Public Utilities 10/18/04 Dallas, Hall, Public Utilities Technician I/Public Utilities 10/18/04 Toker Gonzalez, Solid Waste Worker/Solid Waste 10/18/04 The motion was duly seconded and carried unanimously. 5 - Pendinq/New Business a. Elizabeth Alvarez' Order Date 09/20/04 09/20/04 10/04/04 1 0/04/04 1 0/04/04 1 0/04/04 1 0/04/04 1 0/04/04 1 0/04/04 1 0/04/04 1 0/04/04 1 0/04/04 1 0/04/04 10/18/04 10/18/04 10/18/04 10/18/04 Pension Advisory Committee Attorney Stuart Kaufman said the City received an order denying the Petition for Writ of Certiorari for Elizabeth Alvarez. Ms. Alvarez had appealed the PAC's (Pension Advisory Committee) decision to grant her a non-service-connected disability request. She had sought a service-connected disability pension. The court upheld the PAC's decision, determined it was proper, and ordered the City to pay Ms. Alvarez's attorney fees. Mr. Kaufman will review the decision and report on related costs next month. He said the court is unlikely to overturn PAC rulings as long as credible evidence supports PAC decisions. . Pension Advisory 2004-11-04 2 . b. Ronnie White - Hearing for Job-connected Disability Request Mr. Kaufman said Ronnie White is represented by Attorney John Tucker, of Anderson and TuckeL Mr. White filed a job-connected disability request last year, claiming he was disabled and could no longer perform his duties due to a November 27,2001, injury. ML Kaufman reviewed the hearing procedure and related Pension Plans rules, stating the PAC must determine that none of the exclusions in Section 2.397 applies. John Tucker, employee representative, reported Mr. White injured his back in November 2001 and had surgery, which fused a disc in his lower back and implanted "back cages." Several physicians have opined that his disability is permanent. His surgeon, DL Garry Moskovitz, turned ML White's care over to DL Craig Schwartz, who stated that Mr. White's condition is permanent and he should remain off duty. Mr. Tucker said that Dr. Vollbracht, who treated Mr. White at various times, has reported that Mr. White's condition is continuous and permanent. Prior to the November 2001, incident, Mr. White had received various injuries on the job but was able to return to work each time and never was permanently disabled. Following his back surgery, Mr. Tucker said Mr. White attempted to return to work as recently as 2004. . Mr. White originally worked as a sanitation worker. ML Tucker said following Mr. White's transfer to a position at the City's recycling facility, he found he was incapable of performing those duties. When Mr. White was transferred to light duty responsibilities, answering sanitation department telephones, Mr. Tucker said Mr. White was unable to sit for long periods of time. Physical limitations include sitting, standing, walking, and lifting. Mr. Tucker said Mr. White is incapable of performing the simplest of sedentary work. He said ML White's work skills are limited and prevent him from transferring to other positions. He said Mr. White's last relevant education was more than 20 years ago. He said Mr. White does not type or use a computer. Assistant City Attorney Leslie Dougall-Sides reported that Mr. White had applied for job- connected disability benefits, basing his claim on the November 2001 injury. She reported Mr. White also had reported a right rotator cup tear in 1998, and alleges the cup was re-injured in 2001. Mr. White's medical condition is complicated by other injuries, including an alleged subsequent injury at a Kmart store in June 2003, a motor vehicle accident in 1998, and a slip and fall in the shower while off-duty. His medical records also mention a degenerative spinal condition. Ms. Dougall-Sides reported that Mr. White had lumbar surgery in April 2002 and knee surgery in June 2003. Attached to Mr. White's disability application is an opinion by Dr. Vollbracht and Dr. Bouchlas that he is permanently disabled. The medical files also includes Dr. Vega's April 21,2004, letter regarding the IME (Independent Medical Examination), stating Mr. White has reached maximum medical improvement. Various doctors have rated ML White's disability from 9% to 12%. In his May 19, 2004, addendum, Dr. Vega stated he found Mr. White suffered permanent disability, but only partial, not total disability. Dr. Vegas opined that ML White can work with restrictions. . Pension Advisory 2004-11-04 3 . Ms. Dougall-Sides said Dr. Steinman had signed off on Attorney Hungate's letter, which requested his response to several opinions. After review of video surveillance from May 2003 through January 2004, Dr. Steinman found the patient to be capable of full-time light duty. Dr. Steinman also determined that Mr. White had exaggerated his complaints while visiting his office. Ms. Dougall-Sides said two treating physicians have submitted opinions that Mr. White is capable of full-time light duty and is not totally disabled. Ms. Dougall-Sides said the City attempted to find alternate light duty positions for Mr. White, who eventually was terminated for failure to report to work after exhausting his medical leave. She said after review of Dr. Vega and Dr. Steinman's opinions, the finding of a maximum disability rating of 12%, Mr. White's failure to cooperate with alternative placement, and the termination, the City's position is that Mr. White is not totally and permanently disabled. Mr. Kaufman introduced into evidence the PAC file, which includes the disability application, interrogatories, job description, worker's compensation records, personnel records, and medical records from HealthSouth, Morton Plant Hospital, and from several physicians, including IME physician Dr. Vega. Member Jensen moved to accept the PAC file into evidence. The motion was duly seconded and carried unanimously. In response to a question, Mr. Kaufman did not think the video surveillance tapes are included in the PAC file entered into evidence. Discussion ensued and Ms. Dougall-Sides said Attorney's Hungate's letter references activities on the videotapes. . Mr. Tucker said the letter from Worker's Compensation Attorney Hungate, who is a City defense attorney, is hearsay as Dr. Steinman did not write the letter. Mr. Tucker objected to Dr. Steinman's response. Ms. Dougall-Sides said Dr. Steinman was a treating physician of the claimant, who had not objected to the medical report previously. She said Dr. Steinman only had crossed-out one sentence where he indicated he had not seen the action on the videotapes. Ms. Dougall-Sides said if the videotapes are a problem, the claimant could request a continuance. Mr. Kaufman said the City must decide if they wish to introduce the tapes into evidence. In response to a question, Mr. Tucker said he objected only to Dr. Steinman's report. Ms. Dougall-Sides reviewed the procedure to obtain medical records. The Hungate letter was included in Dr. Steinman's file and provided to the PAC as part of the medical records. Mr. Kaufman noted Mr. Tucker's objection. Mr. Tucker said the medical records are voluminous. Since Mr. White made application in November 2001, a variety of medical developments have occurred. He said an April 16, 2002, surgical record indicated the implantation of "back cages" had resulted in significant impairment. He said Mr. White is taking a variety of medications and has significant side effects, including drowsiness, nausea, stomach pain, and constipation. Mr. Tucker said the medical records relate the variety of medical care Mr. White has received. . Pension Advisory 2004-11-04 4 . . . In response to questions from Mr. Tucker, Mr. White said he worked for the City for more than 10 years. He stated on November 27, 2001, while on the job at the Harborview Center, he reached for a can, slipped, and fell on his tailbone. His co-worker moved the sanitation vehicle, which injured his back, leg, hip, and right knee. Mr. White stated he previously had injured his shoulder on the job while feeding wood into a compactor. He said he mainly has problems with his back. He said he had a disc fusion and removal, and continues to experience numbness in his leg, right foot, and right hip. He said the pain affects his ability to sit, stand, and lie down. He said his doctor warned him against lifting his arm higher than shoulder height, as he may injure it further and require additional surgery. He stated Dr. Vollbracht, Dr. Bouchlas, and Dr. Schwartz had advised him that he could not return to work and his injuries are likely permanent. Mr. White stated he saw Dr. Schwartz in December 2003, and was told to return in four months. Mr. White said he was terminated prior to April 2004. He said he had never received a letter from the City or his doctor indicating he had to return to work. Mr. Tucker referenced Dr. Bouchlas' opinion that Mr. White is permanently disabled. Mr. Tucker said Dr. Schwartz recently provided the City's Risk Management Division form, indicating that Mr. White was "off work" as of April 6, 2004. Mr. Tucker said Dr. Vollbracht's November 18, 2003, letter indicates that Mr. White was unable to perform useful, sustained work because of his injury, is permanently disabled, and is unlikely to improve. In response to a question, Mr. Tucker said he had attempted to return to work after his back surgery. He said when he answered telephones, he had to sit for long periods of time, research customer files, and help customers. His physician said he should take frequent breaks, however, he was informed he could not leave the area. In response to Dr. Vega's letter reporting that he could sit for four hours at a time, Mr. White said his legs begin to feel numb if he sits more than 15 minutes. He said he takes seven to nine medications daily and uses ice and cold packs to relieve the pain. He stated he can stand only 15 to 30 minutes at a time. He said he also is being treated for depression due to his condition. He stated he cannot get comfortable and has difficulty sleeping, which affects his concentration and coordination. He said his condition is worse in the morning. He experiences headaches, nausea, light- headedness, and fatigue. Mr. White stated at the Solid Waste Department, he had spoken to his supervisor and department director regarding his work difficulties related to his health. He said in April 2004, Dr. Schwartz had advised him not to go to work. He said he regularly contacted his supervisor to try and located alternate jobs. He said his current physical limitations create a liability for the City. Mr. White thanked the City for trying to find alternate employment for him. He said while in the recycling department, he needed a special chair but was told there were no funds to purchase the type chair he required. He stated he also distributed fliers regarding the City's recycling program, however he could not stand or sit for long periods of time in the sun. He said he had been told that if he could not perform the job, he should look for another position or quit. He said his doctor felt the job was too demanding given his back injury, and that he should limit the amount of time he sits or stands. Mr. White said he had been terminated even though Dr. Schwartz had never released him to return to work. Mr. White said Dr. Schwartz was waiting until a FCE test (function capacity evaluation) could be done before he determined if Mr. White could be released back to work. Mr. White said HealthSouth had cancelled his Pension Advisory 2004-11-04 5 . FCE test when he told them he was scheduled for knee surgery the following day. To date, the FCE test has not been rescheduled. In response to a question, Mr. White said he had attended community college more than 20 years ago. He said he lacks clerical skills and vocational training and cannot type or use a computer. He worked in the City's sanitation department for at least 10 years. In response to a question, Mr. White said Ms. Debella, in the Human Resources Department, had instructed him to apply for disability benefits and told him that two doctors had to verify that he no longer was able to work. Mr. White stated that Dr. Vollbracht and Dr. Bouchlas had opined that he was unable to work. He said he had faxed all requested information regarding his worker's compensation claim and cooperated fully with the City. He said no one had ever told him he had to return to work. He said after he stopped working, he had not been offered a job. In response to a question from Ms. Dougall-Sides, Mr. Roseto said the Solid Waste Department had made extensive efforts to find alternate jobs and had placed Mr. White on light duty. Human Resources works with departments to resolve similar issues. Mr. Roseto said Mr. White was assigned to the recycling department and staff had tried to find jobs for him that fit his limitations. He stated that Mr. White was unable to perform the job duties required. He said the department had determined that Mr. White was not sincere in his efforts to perform those duties. Mr. Roseto was unaware of any statements to Mr. White that he was not needed. . Mr. Roseto said by spring 2004, Mr. White entered a no-pay status as he had exhausted his paid leave. Mr. Roseto said employees are required to solicit the City to receive unpaid leave status. All cases are evaluated individually. Mr. Roseto said Mr. White most probably had requested a leave of absence in writing. The City's position is that Risk Management had cleared Mr. White to return to work and he did not. Mr. Roseto said according to procedures, the City does not contact employees regarding their return to work, as it is incumbent upon employees to contact the City as soon as they are able. Mr. Roseto said when an employee does not return to work, the Human Resources Department normally terminates employment and notifies the individual. He stated a letter was mailed to Mr. White regarding this issue. Mr. Kaufman displayed City's Exhibit 1, Joseph Roseto's March 16, 2004, letter to Mr. Tucker related to Mr. White. Mr. Tucker had stated no objection to the letter. Mr. Roseto stated Mr. White had telephoned him following receipt of the letter and told him he was qualified and wanted to return to work. Mr. Roseto said the City already had chosen to terminate Mr. White's employment and that decision would not be changed. Mr. White never appealed that decision. Mr. Roseto said he felt Mr. Gloster had no reasonable expectation that the Citywould find Mr. White work that would not require physical effort. Mr. Roseto said the City currently has no open positions for light duty work. Should the PAC deny Mr. White's job-connected disability request, Mr. White's employment status would remain the same. Mr. Roseto said Mr. White's employment was not terminated due to his disability; but because he did not return to work. In response to questions from Mr. Tucker, Mr. Roseto said Human Resources staff relies on the Risk Management staff regarding whether or not an employee is able to return to work. Risk Management staff stated that effective March 16, 2004, Mr. White was cleared to return to work in the assigned position in the Solid Waste Department. Mr. Roseto did not . Pension Advisory 2004-11-04 6 . . . speak to Mr. White regarding his return to work. He did not doubt Mr. White's claims regarding his limitations as expressed to individuals in the Recycling Department. In response to a question, Mr. Roseto said Risk Management staff typically notifies Employee Relations when an employee's work status changes. Under normal circumstance, Human Resources is not involved in that process. However, in this case, Human Resources became involved because Mr. White did not return to work. Mr. Roseto said an employee's no- pay status can be terminated. In response to questions from Ms. Dougall-Sides, Risk Management Specialist Patti Post said she was responsible for Mr. White's file. She reviewed the dates that physicians indicated that Mr. White had reached MMI (maximum medical improvement). She stated 12% was the highest percentage limitation any physician reported for Mr. White. Ms. Post said when Dr. Steinman released Mr. White in December 2003, he was told he could perform work of a sedentary nature, and was assigned to the Solid Waste Department. Ms. Post said Risk Management reviews employee cases with Human Resources monthly and communicates with pertinent departments regarding employee status. Ms. Post said Mr. White was thorough in providing paperwork from his physicians regarding his medical condition. She said on April 8, 2003, staff contacted Dr. Schwartz when Mr. White did not report to work. Dr. Schwartz confirmed that he had not released Mr. White to return to work. In response to a question, Ms. Post verified Risk Management Department staff had ordered documents and surveillance tapes on Mr. White beginning October 22, 2003. She was familiar with the Hungate letter. She confirmed the dates of the survei!lance tapes. Ms. Dougall-Sides submitted City's Exhibit 2, surveillance reports. Mr. Tucker objected to the introduction of the surveillance tapes. Ms. Dougall-Sides said the City is not obligated to notify the applicant or his representatives of evidence to be presented. The applicant/employee has the burden of proving his case and notifying the City of any evidence to be presented. Ms. Dougall-Sides submitted City's Exhibit 3, surveillance tapes of Mr. White. Mr. Tucker objected, stating he was not given the opportunity to review the tapes entered into evidence. Discussion ensued and it was suggested a recess be called so that Mr. Tucker could view the surveillance tapes. The meeting recessed from 10:09 to 10:21 am. Mr. Kaufman said Mr. Tucker's objection to the City Exhibits 2 and 3 would not be an issue once he reviews them. He said the PAC could continue the case to give Mr. Tucker an opportunity to review the exhibits or hear the rest of Ms. Post's testimony. Discussion ensued. Ms. Post stated of 11 surveillance tapes of Mr. White, two of them are composites of all activity. She was unsure of their length. It was suggested the PAC also view the tapes. Discussion ensued regarding the viewing of the tapes. Mr. Tucker said Mr. White did not object to a review of the tapes outside the PAC meeting. He requested copies of Pension Advisory 2004-11-04 7 . . . the tapes. Staff will provide the PAC with copies of the 2 composite tapes and pertinent written materials. It was felt there is insufficient time to copy and review all materials prior to the December meeting. Member Hamilton moved to continue Ronnie White's request for a job-connected service disability to January 2005. The motion was duly seconded and carried unanimously. Mr. Kaufman stated Mr. Tucker will have 10 days from the date he receives the video tapes to advise the City if it is acceptable for the PAC to review only the two composite tapes. Upon Mr. Tucker's approval, PAC members will be provided the composite tapes for review, and Ms. Dougall-Sides will copy her written documentation to Mr. Tucker and the PAC. c. James Albright - Hearing for Non-job-connected Disability Request Mr. Roseto reported that Mr. Albright has requested a continuance. Member Hamilton moved to continue James Albright's hearing for a non-job-connected disability request to December 9, 2004. The motion was duly seconded and carried unanimously. 6 - Director's Reports Mr. Roseto reviewed last month's request to expedite previously proposed revisions to the General Employees' Pension Plan. Mr. Roseto and Member Jensen submitted to the PAC a synopsis of proposed changes, dated May 25, 2004. Concern was expressed an inordinate amount of time has passed without action on the proposed changes. It was felt many opportunities were lost to have the changes submitted fer union review and/or approval. It was stated that union negotiations should not affect the ability to forward a copy of the PAC's proposed changes to the unions for their review and consideration. Mr. Kaufman said the changes should be presented for review and approval by the union bargaining units prior to recommendations being submitted to the Pension Trustees. It was remarked some changes require actuarial work, which involves costs to the Pension Plan. Mr. Kaufman suggested savings could be realized if the City determines which items it might consider addressing with bargaining units. It was stated more City support is needed regarding these changes, and employee groups need to be aware of the proposed changes. It was requested that language in Section 9 of the proposed changes be clarified to allow employees to choose their retirement benefit the day they are vested; not the day they retire. It was suggested the PAC review the entire document to ensure its clarity, etc. before submitting it to the bargaining units. It was suggested a workshop be scheduled. It was remarked an actuary study done in 2002 should be provided to the PAC along with other pertinent information. 7 - Committee Members to be Heard Member Hightower requested PAC procedures address instances when attorneys unexpectedly show up at disability hearings. Ms. Dougall-Sides said staff was aware Ronnie Pension Advisory 2004-11-04 8 . White's attorney would be present. Mr. Hightower said an employee's attorney should have all facts prior to a hearing. Mr. Kaufman said although PAC rules do not specifically address rules of discovery during procedures, they indicate that an applicant must file evidence with the City 10 days prior to the hearing, however the City is not obligated to do the same. He suggested PAC procedures could incorporate a clause obligating the City to provide all evidence 10 days prior to a hearing. He noted surveillance tapes in Ronnie White's case are important to the City's case. Member Hibbard requested communication between the Human Resources and Risk Management departments include a paper trail. Other Mr. Kaufman invited PAC members to attend a seminar hosted by Klausner & Kaufman on March 2 - 4, 2005, at the Cypress Grand Hyatt in Orlando. The seminar covers pension issues. An investment manager and an actuary also will be present. 8 - Adiournment The meeting adjourned at 11 :01 a.m. GLlY5JM Pension Advisory Committee . ~t st: c" VI afltk. /)-?O}&J Board Reporter . Pension Advisory 2004-11-04 9