HomeMy WebLinkAboutMinutes Fire Pension 020209PALM BEACH GARDENS FIREFIGHTERS' PENSION FUND
MINUTES OF MEETING HELD
February 2, 2009
A special meeting of the Board of Trustees was called to order at 1:00 P.M. at the Lobby
Conference Room in City Hall, Palm Beach Gardens, Florida. Those persons present
were:
TRUSTEES OTHERS
Tom Murphy
Margie Adcock, Administrator
Rick Rhodes
Bob Sugarman, Attorney
Roy 011iff
Richard Sicking, Attorney for Toby Bivins
Ed Morejon
Toby Bivins, Applicant
Allan Owens, Finance Director
DISABILITY HEARING FOR TOBY BIVINS
Mr. Sugarman provided the background and requirements for a disability pension. He
reviewed the questions that the Board needed to answer. He noted that Dr. Sherman had
encouraged the Board to obtain a Functional Capacity Evaluation (FCE). The Board sent
Mr. Bivins to Dr. Lichtblau for the FCE. Mr. Sugarman stated that it was originally the
intent to send the FCE back to Dr. Sherman for review. However, because of the length of
the report, Dr. Sherman could not advise when he would be able to look at it but stated that
it would be at least a month or more. The Board felt that was not fair to make Mr. Bivins
wait that long for a hearing.
Mr. Sugarman reviewed the disability book that had been prepared previously for the
August 18, 2008 meeting. He stated the issues before the Board. He stated that this was
an informal hearing where Mr. Bivins and his attorney would present to the Board their
case. After all of the information is received, the Board can grant, deny or table the
disability request for Toby Bivins. Mr. Sugarman stated that his job is to make sure that Mr.
Bivins and his attorney get a fair hearing and to make sure the Board makes a decision in
which they are comfortable with. Mr. Sugarman noted that one Board Member was not
present. He stated that he advised Mr. Sicking of that prior to the meeting. Mr. Sicking
stated that he was previously told that one Board Member was missing but that he wanted to
proceed and not wait for a full Board.
Mr. Sicking stated that from the last meeting the direction was for the Board to interview the
co- workers for the month before Mr. Bivins' injury. He inquired about those interviews.
Mr. Murphy stated that he was charged with doing the interviews. He stated that he took the
run sheets and highlighted the employees Mr. Bivins worked with during that time. He made
copies and distributed the copies of the run sheets to the Board and asked Mr. Sugarman for
some direction on the questions to ask. Mr. Murphy reviewed the questions and noted that
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he asked each employee the same questions. He stated that he received some "don't
recalls ". However, for the most part, of those that did remember they indicated that Mr.
Bivins did respond to calls and did his share of the work. He was not limping and not
complaining of injury or weakness or pain and they remembered him doing his station
duties. He stated that he did not get anything that deviated from those responses. Mr.
Morejon stated that he was also the Union representative for the firefighters and he was
asked to take part in an interview with George Helm in the workers' compensation process.
Mr. Bivins had invoked his Firefighter Bill of Rights and Mr. Morejon was the Union
representative. He did not know if that mattered here, but he did want to disclose that.
Mr. Sicking reviewed pages five and six of the FCE. He stated that the FCE report states
that Mr. Bivins does not have the functional capacity to return to firefighter work. He
reviewed the limitations set forth in the FCE. He noted that the employer has a time
limitation of when a firefighter can no longer come back to work. At that point the
firefighter is terminated. He noted that legal issue with the Gaines court case. Mr. Sicking
stated that from a medical standpoint and an employer standpoint Mr. Bivins meets the
definition for a permanent and total disability. He stated that the real question is whether
the disability is service connected. Mr. Sicking stated that the records show that in late
February Mr. Bivins went to the clinic and complained of back pain but he worked full duty
the next day and for several duty days after that up until the time of the Hurst tool incident.
The FCE mentioned in three or four places that the medical opinion is that the current
condition was exacerbated since his injury in March. Mr. Sicking stated that all three
requirements for a duty disability have been met and he asked the Board to award a service -
connected disability to Mr. Bivins.
There was discussion on permanence of the disability. Mr. Sicking stated that the FCE
stated that at this point it is a management of the medial problems. The Board inquired
about whether exacerbating an injury can be considered. Mr. Sugarman stated that
exacerbating an injury is the aggravation of an injury. The FCE is stating that the Hurst tool
incident was an aggravation of his pre- existing injury that was caused by his on the job
injury.
The Board inquired about the Gaines court case. Mr. Sugarman discussed the Gaines court
case. He stated that if the City terminates an employee for not being able to work due to an
injury, a pension plan is estopped from claiming the person is able to work when a
municipality says they cannot work. He stated that in such a situation, that would answer
the issue of being disabled as a firefighter, but does not answer the question of permanence
and totality.
There was a lengthy discussion on the record before the Board. The Board stated that the
FCE answered all the questions that were still open from the August meeting. A motion
was made, seconded and carried 4 -0 to grant a duty disability to Toby Bivins. There was
discussion as to the date of the disability. A motion was made, seconded and carried 4 -0 to
determine that Mr. Bivins became entitled to a disability as of the date he went off City
payroll.
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OTHER BUSINESS
Mr. Morej on reported that Mr. Owens stated at the last meeting that he would talk to the
City Manager about allowing a representative from the Board on the City's FRS
committee. It was noted that the City Manager has agreed to that. Mr. Morejon stated
that he submitted two names — himself or Rick Rhodes. Mr. Sugarman advised of some
possible changes to FRS with the Legislature. He stated that he hopes the City's
committee does not act too quickly in case the Legislature would act.
There being no further business, the meeting adjourned.
Respectfully submitted,
Tom Murphy, Secretary