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10/01/2002PENSION ADVISORY COMMITTEE SPECIAL MEETING CITY OF CLEARWATER October 1, 2002 Present: Whitney Gray Acting Chair/Commissioner John Lee Committee Member John Schmalzbauer Committee Member Tom Jensen Committee Member Hoyt P. Hamilton Committee Member/Commissioner Frank Hibbard Committee Member/Commissioner Empty seat Committee Member Also Present: Leslie Dougall-Sides Assistant City Attorney Joseph Roseto Interim Human Resources Director Richard Ebelke Assistant Human Resources Director Scott Christiansen Pension Advisory Committee Attorney Debbie Ford Human Resources Analyst Patricia O. Sullivan Board Reporter The Chair called the meeting to order at 9:10 a.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. ITEM #2 – Pending/New Business a) Evers L. Maxie, Sr. – Hearing for Non-job-connected Disability Pension PAC (Pension Advisory Committee) Attorney Scott Christiansen reviewed the rules, procedure, and criteria related to a disability claim. The claimant has the burden of proof. The standard of proof requires a preponderance of evidence. Assistant City Attorney Leslie Dougall-Sides presenting the case for the City, stated the City opposes Evers Maxie’s disability request. Mr. Maxie worked as a Solid Waste worker, a unskilled, heavy labor position that requires a driver’s license. Solid Waste Director Bob Brumback previously had relieved Mr. Maxie of his driving duties. She said a condition must be permanent for a disability pension to be approved. She said Mr. Maxie’s personal physician and the IME (Independent Medical Examination) physician reported the condition is not permanent if Mr. Maxie would follow a treatment plan and take medications necessary to control his diabetes. She reviewed Mr. Maxie’s medical records. In his June 8, 2001 letter, Edward M. Kasper, MD stated Mr. Maxie “can work as a custodial worker. He should not work outside, nor should he drive a . . . vehicle with his present vision.” On January 7, 2002, Anup Desai, MD, issued a statement that Mr. Evers could not drive due to poor vision. In his August 28, 2000 assessment, Pothen Jacob, MD stated Mr. Maxie has “chronic diarrhea with hemoccult positive stool” and significant weight loss. Mr. Maxie’s past medical history is “significant for pacreatitis related to alcohol abuse. He has had pancreatic cysts and has had surgical intervention.” Dr. Jacob suspected Mr. Maxie “could have chronic pacreatitis causing weight loss as well as diarrhea.” According to his March 19, 2002 gastroenterology consultation, Dr. Jacob stated Mr. Maxie is “a patient with chronic alcoholism who presents with significant weight loss and diarrhea. He has previously documented pancreatic insufficiency and is on enzyme supplements. Additionally, he also has abnormal liver function tests, consistent with alcoholic pacreatitis. His weight loss appears to be a combination of chronic alcoholic pacreatitis and continued alcoholism.” A December 4, 2001 letter from Resituto Malonsa, MD, Mr. Maxie’s primary care physician since March 1995, indicated Mr. Evers has poorly controlled diabetes, chronic pancreatic insufficiency, which causes chronic diarrhea, poor stamina, and is in poor physical condition. Dr. Malonsa further stated, “If his diabetes control improves and his diarrhea is controlled, he may be able to return to work, but it is unclear at this time when this will occur.” In his June 13, 2002 report regarding the IME of Evers Maxie, Andrew J. Scoma, MD, noted Mr. Maxie’s long term problem with alcohol and reported Mr. Maxie “has failed to take care of his diabetes and has failed to cooperate with his physicians in attempting to control his diabetes. . . If he takes care of himself and his overall condition improves, then he will be able to perform his job.” Dr. Scoma stated Mr. Evers “is not disabled. . . the patient needs to comply with his medical therapy and can again resume his duties. . . He did not receive an injury on the job. . . it should not take any longer than a maximum of six months of intensive diabetic therapy for the patient to be back to normal.” Ms. Dougall-Sides stated the Pension Plan has several exclusionary items, including the overuse of alcohol and preexisting conditions. Mr. Maxie’s record indicates prior to employment with the City, he had surgery for a cyst on the pancreas, which was related to alcohol overuse. She said Mr. Maxie’s current condition is due to neglecting his health and failing to take his medication. She said while Mr. Maxie had claimed to have stopped using alcohol in 2001, his blood level readings during his 2002 hospitalization indicated that was not the case. Ms. Dougall-Sides noted Dr. Malonsa had indicated Mr. Maxie was not checking his glucose, taking his required insulin, nor did he show up for two appointments with a specialist. Mr. Maxie has had a history of motor vehicle accidents. According to physician reports, Mr. Maxie’s diabetes is simple insulin dependent, not complicated by problems with the brain, kidney, or heart, and could improve in 6 months with therapy. Ms. Dougall-Sides said according to Dr. Malonsa, Mr. Maxie was admitted to the hospital in March 2002 with an elevated alcohol level of 0.16. Chronic alcoholism affects liver function. After his off-duty automobile accident in March 2001, Mr. Maxie’s ethanol level was 0.25. Mr. Brumback relieved Mr. Maxie from driving and all heavy-duty responsibilities. Assistant Human Resources Director Rick Ebelke said Mr. Brumback had relieved Mr. Maxie from his equipment operator position after his diabetes condition was aggravated by not taking prescribed medications. If Mr. Maxie’s health improves, he could fill a manual labor position in Solid Waste, such as recycling. While Mr. Maxie has requested a transfer back to the Parks & Recreation Department, Mr. Ebelke said manual labor jobs in the parks are physically demanding in the hot sun. In response to a question, Mr. Ebelke said few internal City custodial positions exist, as most are contracted. Custodial jobs also are physically demanding and require stamina. Interim Human Resources Director Joe Roseto said the City would have more options in placing Mr. Maxie if he would take his prescribed medication, participate in intense therapy, and quit using alcohol. Concern was expressed sending Mr. Maxie home for 6 months may exacerbate his condition. Discussion ensued regarding the City’s EAP (Employee Assistance Program). Results of random testing on Mr. Maxie for alcohol use were not available. Mr. Ebelke said the EAP program requires employee participation and cannot be imposed. Mr. Maxie said he did use alcohol previously. He said he tests his glucose levels twice daily, exercises, and takes his medication. He said he would rather be working than sitting at home. He said he would participate in the EAP if it would help. He said he needs an income and is willing to do anything to help his condition. Mr. Christiansen said City programs, such as EAP, are not relevant to the PAC’s decision. Some inconsistencies in the interrogatories were noted. It was felt Mr. Maxie’s disability is temporary and would improve if treatment is followed. It was recommended Mr. Maxie have extended treatment to improve his use. It was hoped Mr. Maxie receives the help he needs and can be reemployed in the future. Member Jensen moved to deny Evers Maxie’s request for a non-job-connected disability pension. The motion was duly seconded and carried unanimously. It was hoped Human Resources will help address Mr. Maxie’s needs and help him stay on the road to recovery. Mr. Roseto said staff will see what assistance can be provided. In response to a question, Mr. Christiansen said Mr. Maxie was sent to an out-of-area endocrinologist as many local doctors are unwilling to perform IMEs and contradict local physician opinions. Many also do not want to face depositions and lawyer questions. ITEM #3- Director's Reports Mr. Ebelke reported Cathy Slack’s attorney has requested her disability hearing be scheduled in November. Depositions for the case are not complete. In regard to litigation regarding the seventh member, Ms. Dougall-Sides said a hearing is scheduled for October 31, 2002, regarding the City’s motion to dismiss. Mr. Christiansen recommended against filling the seventh seat until related litigation is resolved. If the vote on Ms. Slack’s disability case is a 3:3 tie, the case would have to be continued until at least four members agree on a vote. Consensus was to schedule the disability hearing for Cathy Slack on November 14, 2002. It was recommended the PAC follow City Commission procedure when appointing members to boards so that applicant background information is included in the agenda package. ITEM #4- Adjournment The meeting adjourned at 9:56 a.m.