HomeMy WebLinkAbout04 WHITEHEAD DISABILITY 01-20-9 LAW OFFICES OF
WOODRUFF, SPRADLIN & SMART
A PROFESSIONAL CORPORATION
MEMORANDUM
NO. 4
1-20-97
TO:
FROM:
DATE:
RE:
Honorable Mayor and Members of the City Council
City of Tustin
City Attorney
January 13, 1997
Application for Disability Retirement by Russell Whitehead; Consideration of
Mr. Whitehead's Administrative Appeal
RECOMMENDATION:
Adopt the attached Resolution. The Resolution is a final decision by the City
Council on Mr. VVhitehead's application for disability retirement. The Resolution adopts the
proposed decision of the administrative law judge to deny Mr. VVhitehead's application for
disability retirement benefits. This decision was rendered after an evidentiary appeal
hearing
DISCUSSION:
The City Council has previously determined, based on medical reports and the
application of Mr. Whitehead, to deny Mr. Whitehead's application for disability retirement.
Mr. Whitehead was a former police officer who was terminated. Mr. Whitehead's
application for disability retirement alleged that he had suffered a disabling back injury just
prior to his termination. After the City Council's determination to deny the application for
disability retirement, Mr. Whitehead sought an administrative appeal before an
administrative law judge pursuant to Government Code Section 21025. That appeal
consisted of an evidentiary hearing where Mr. Whitehead was.represented by counsel, and
documentary and testimonial evidence was introduced and considered. The administrative
law judge concluded that the City Council's denial of disability retirement benefits should
be upheld. A copy of that decision has been provided to you in a separate, privileged and
confidential memorandum. The decision will become a public record if you decide to adopt
it.
You have the option to accept the administrative law judge's decision and adopt it
as your own or to hold your own hearing and receive additional testimony and evidence
1102-1003
40143_1
Honorable Mayor and Members of the City Council
City of Tustin
January 13, 1997
Page 2
from Mr. Whitehead and others. If you choose to do the latter, you have fifty-nine (59)
days to act. If you choose to adopt the administrative law judge's decision as your own,
a resolution has been presented for your consideration.
Once the City takes final action, Mr. Whitehead has the right to take the matter to
court.
LOIS E. JEF~
Enclosure
cc: William A. Huston, City Manager
1102-1003
40143_1
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RESOLUTION NO. 97-5
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, ADOPTING THE PROPOSED
DECISION OF THE ADMINISTRATIVE LAW JUDGE IN THE
ADMINISTRATIVE APPEAL OF RUSSELL WHITEHEAD AS
ITS FINAL DECISION TO DENY MR. WHITEHEAD'S
APPLICATION FOR DISABILITY RETIREMENT BENEFITS
WHEREAS, pursuant to authority in Government Code Section 21025
the City Council determined to deny the application of Russell
Whitehead for disability retirement benefits; and
WHEREAS, Mr. Whitehead appealed the City Council's determination
to an administrative law judge; and
WHEREAS, on July 23, 1996, Administrative Law Judge Britt held
a hearing and considered written and oral testimony, including
testimony from Mr. Whitehead, other witnesses, and legal argument by
counsel; and
WHEREAS, on December 23, 1996, the City received a copy of Judge
Britt's proposed decision which denied Mr. Whitehead's application
for disability retirement benefits; and
WHEREAS, the City Council has reviewed Judge Britt's proposed
decision denying Mr. Whitehead's application for disability
retirement benefits.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUSTIN,
CALIFORNIA, finds, determines and orders as follows:
SECTION 1: The proposed decision of Administrative Law Judge
Britt dated October 4, 1996, in the matter of the disability
retirement benefit application of Russell Whitehead, is hereby
adopted as the final decision of the City Council of the City of
Tustin, California
SECTION 2: The City Clerk is directed to provide notice to
Mr. Whitehead and to his counsel of the adoption of this ResOlution
and of the administrative law judge's decision adopted by the City
Council, and to further provide notice to Mr. Whitehead and his
attorney that the time within which judicial review must be sought
is governed by Code of Civil Procedure Section 1094.6 and Tustin City
Code Section 1140.
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PASSED AND ADOPTED at a regular meeting of the City Council of
the City of Tustin on the th day of , 1997.
TRACY WILLS WORLEY, MAYOR
ATTEST:
PAMELA STOKER
CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
RESOLUTION NO. 97-5
Pamela Stoker, City Clerk and ex-officio Clerk of the City Council
of the City of Tustin, California, does hereby certify that'the whole
number of the members of the City Council of the City of Tustin is
five; that the above and foregoing Resolution was passed and adopted
at a regular meeting of the City Council held on the th day of
, 1997 by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBERABSTAINED:
COUNCILMEMBER ABSENT:
PAMELA STOKER
City Clerk
1102-1003
40145_1
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TY • •
eoS'Cy Office of the City Clerk •
•
January 22, 1997• City of Tustin
300 Centennial Way
Tustin, CA 92680
(714) 573-3026
FAX (714) 832-0825
Russell Whitehead
•
11863 Fordham Place
Riverside, CA 92505
Steven R. Pingel, Esq.
Lemaire, Faunce, Pingel & Singer
3020 Old Ranch Parkway, Suite 290
Seal Beach, CA 90740-2751
RE: APPLICATION FOR DISABILITY RETIREMENT BENEFITS; NOTICE OF FINAL
DECISION OF THE CITY COUNCIL OF THE CITY OF TUSTIN
Dear Mr. Whitehead and Mr. Pingel:
Please be advised that on January 20, 1997, the City Council of the City of Tustin
adopted the decision of Administrative Law Judge Britt denying your application for
disability retirement benefits. See copy of City Council Resolution No. 97-5 and copy
of Judge Britt's decision enclosed.
•
Please be further advised that time within which judicial review may be sought is
found within Code of Civil Procedure Section 1094.6 and Tustin City Code Section
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1140.
Sincerely,
Valerie Crabill
Chief Deputy City Clerk
Enclosures
is
c: William A. Huston, City Manager
Bettie Correa, Senior Personnel Analyst F
Lois E JJeffrey, City, Attorney/'
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DECLARATION OF MAILING
STATE OF CALIFORNIA, COUNTY OF ORANGE
I am over the age of 18 and I am not a party to the within action. I am employed by
the CITY OF TUSTIN in the County of Orange, at 300 Centennial Way, Tustin, CA
92780-37.
•On January 22, 1997, I placed the document described as Letter to Russell Whitehead
• and Steven R. Pingel regarding "Application for Disability Retirement Benefits; Notice
of Final Decision of the City Council of the City of Tustin," plus enclosures, in sealed
envelopes to:
Russell Whitehead
11863 Fordham Place
Riverside, CA 92505
Steven R. Pingel, Esq.
Lemaire, Faunce, Pingel & Singer
3020 Old Ranch Parkway, Suite 290
Seal Beach, CA 90740-2751
I placed the envelopes for collection and mailing by first class mail,"following ordinary
business practices, at the business of the CITY OF TUSTIN, at the address set forth •
, above, for deposit in the United States Postal Service. I am readily familiar with the
practice of the CITY OF TUSTIN for collection and processing correspondence for
mailing with the United States Postal Service, and said envelopes will be deposited
with the United States Postal Service on said date in the ordinary course of business.
I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
•
Executed on January 22, 1997, at Tustin, California.
0
Valerie Crabill r
Chief Deputy City Clerk
{FF
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1 RESOLUTION NO. 97-5
2 A RESOLUTION OF Tkih CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, ADOPTING THE PROPOSED
3 DECISION OF THE ADMINISTRATIVE LAW JUDGE IN THE
ADMINISTRATIVE APPEAL OF RUSSELL WHITEHEAD AS
4 ITS FINAL DECISION TO DENY MR. WHITEHEAD' S
APPLICATION FOR DISABILITY RETIREMENT BENEFITS
5
'WHEREAS, pursuant to authority in Government Code Section 21025
6 the City Council determined to deny the application of Russell
Whitehead for disability retirement benefits; and
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WHEREAS, Mr. Whitehead appealed the City Council' s determination
8 to an administrative law judge; and
9 WHEREAS, on July 23, 1996, Administrative Law Judge Britt held
a hearing and considered written and oral testimony, including
10 testimony from Mr. Whitehead, other witnesses, and legal argument by
counsel; and
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WHEREAS, on December 23 , 1996, the City received a copy of Judge
12 Britt' s proposed decision which denied Mr. Whitehead' s application
for disability retirement benefits; and
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WHEREAS, the City Council has reviewed Judge Britt' s proposed
14 decision denying Mr. Whitehead' s application for disability
retirement benefits .
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUSTIN,
16 CALIFORNIA, finds, determines and orders as follows :
17 SECTION 1 : The proposed decision of Administrative Law Judge
Britt dated October 4 , 1996, in the matter of the disability
18 retirement benefit application of Russell Whitehead, is hereby
adopted as the final decision of the City Council of the City of
19 Tustin, California
20 SECTION 2 : The City Clerk is directed to provide notice to
Mr. Whitehead and to his counsel of the adoption of this Resolution
21 and of the administrative law judge' s decision adopted by the City .
Council, and to further provide notice to Mr. Whitehead and his
22 attorney that the time within which judicial review must be sought
is governed by Code of Civil Procedure Section 1094 . 6 and Tustin City
23 Code Section 1140 .
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1 PASSED AND ADOPTED at a regular meeting of the City Council of
the City of Tustin on the /Lth day of Jan. , 1997 .
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TRb' /ATILLS WORLEY, MAYOR
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5 ATTEST:
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0% All:t • •
7 PAMELA STOKER
CITY CLERK
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10 STATE OF CALIFORNIA )
COUNTY OF ORANGE
11 CITY OF TUSTIN
12 RESOLUTION NO. 97-5
13 Pamela Stoker, City Clerk and ex-officio Clerk of the City Council
of the City of Tustin, California, does hereby certify that the whole
14 number of the members of the City Council of the City of Tustin is
five; that the above and foregoing Resolution was' passed and adopted
15 at a regular meeting of the City Council held on the .20th day of •
Ja„ , 1997 by the following vote :
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17 COUNCILMEMBER AYES : Thomas, Doyle, Saltarelli
COUNCILMEMBER NOES : None
18 COUNCILMEMBER ABSTAINED: None
COUNCILMEMBER ABSENT:
19 Worley, Potts
20 V;LIALQ12a,
PAMELA STOKER
21 City Clerk .
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1102-1003
40145_1
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BEFORE THE CITY COUNCIL
OF THE CITY OF TUSTIN
STATE OF CALIFORNIA
In the Matter of the Application )
For Disability Retirement of : ) Resolution No. 94-126
RUSSELL WHITEHEAD )
OAH No . L-9602146
Respondent . ) PROPOSED DECISION
INTRODUCTORY STATEMENT
This matter came on regularly for hearing on July 23 , 1996 ,
at Tustin, California , before Frank Britt, an Administrative Law
Judge, of the Office of Administrative Hearings , State of
California.
The City of Tustin was represented by Woodruff, Spradlin &
Smart, Rodell R. Fick.
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Russell Whitehead, respondent herein, appeared and was
represented by Lemaire , Faunce , Pingel & Singer, Steven R.
Pingel.
Evidence , both oral and documentary, was received and the
parties were granted the opportunity to submit written argument.
Respondent's opening brief was timely filed and marked as Exhibit
H, for identification. The City of Tustin's reply brief was
received on September 17 , 1996 , and marked for identification as
Exhibit 16 . No reply brief was received from Respondent by its
due date of September 27 , 1996 . The matter is now deemed
submitted.
Accordingly, the record is closed and the Administrative Law
Judge proposes the following decision and recommends its adoption
by the City Council of the City of Tustin .
FINDINGS OF FACT
I
The City of Tustin is a contracting agency of the Public
Employees Retirement System of the State of California . •
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01-22-97 11 :55AM FROM WOODRUFF SPRADL[NETC TO 8381602 P002/002
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The,Public Employee Retirement taw requires that a
contracting agency determine whether an employee who is
Classified as a local safety der is disabled for the
of such law and if so, whether much disability is "ind o
, within the meaning t�Lwces'
4 of acid late, ustL'ial
XI/
as a sell Whitehead, (hereinafter "respondent")
Tustin with the Police pot ort ) man employs
Tustin ter the "city) ta1t or the city of
ry 14, 1994, when he was t aught 2r6c until Respondent,'or about
. at the time of his termination, was classified cas cal safety ::e
member by reseon of him employmernt with the City•as aopolice
officer,
Iv
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On or about June 23, 1994,
for industries, disability retirement fi.lad an application
City's Personnel Rules and Retirement with PERS. Pursuant t0 the
Review Board reviewed the mecl{cal evidence the and Retirement
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respondent is not disabled within nce and dwtermineci that
Employees' Retirement Law. November ms meaning 94, th Public
Employees'
Council of the City of Tustin iittn al, 1994, . 94-12a
' and determined, based oh the Reti solution era. ' decision,
, ion
that respondent is not incapacitated vi �vi� 'S i$ion,
Employees' thin the meaning of the
duties in the Retirement Law for the performance of. his
ition or police officer_
` Respondent vas dul no
and hie right to an appeal Y tified of the City Council's decision
• thJudge. Respondent timely hearing before an.ti City's due Law
e application for diteail ty retiremnt of the. City's denial aE
the City servedaad�tement of Issues uabenefits. -
t.to C ernmeattco
11504. The DStatement •fparaume ' code
recited the ie det Statement at th =appea
wring: 4 issues to he determined at the appeal
• 1• Whether or not Rummell svtitahe8d Was iZf
by Physical injuries which Drevantad him Protpacitated
police rofficer at thedtices of his position ota t
disability retirement benefits.
him application for PtMs.
nvfits.
a' ..whether or not Russell tvhiteneed Waa ''incapacitated . .
by psychological injuries vhioh .p'revented.
inn the usual of the him from
police officer at the time posication fo Tr s. .,
disabili s.,- of his r4ppliCatlori ,£ox..pg�,,,
ty retirement benefits.
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:JAN-22=1997 . 12:02 714 835 7787 96i P 02
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On July 19 , 1996 , the City filed an Amended Statement of
Issues after respondent withdrew his appeal on the issue set
forth hereinabove relating to incapacitation by reason of •
psychological injuries . Accordingly, the issue as framed by the
Amended Statement of Issues is :
"Whether or not respondent was incapacitated by
physical injuries which prevented him from performing
the usual duties of a Tustin Police Officer at the time
of his application for PERS disability retirement
• benefits . "
The additional issue involved in this matter is whether or
not respondent's claimed incapacitation for the performance of
duty as a police officer is the result of an industrial
disability within the meaning of Government Code section 21022 .
V
The following provisions of the Government Code are
applicable to public employees ' disability retirement matters .
Section 21022 provides in pertinent part:
"Any patrol , state safety member, state industrial ,
state peace officer/firefighter , or local safety member
incapacitated for the performance of duty as the result
of an industrial disability shall be retired for
• disability, pursuant to this chapter, regardless of age
or amount of service . "
Section 21020 provides in pertinent part:
" . . . 'disability' and ' incapacity for performance of
duty' as a basis for retirement, mean disability of
permanent or extended and uncertain duration, as
determined by the board. . . on the basis of competent
medical opinion. "
Section 21025 provides in pertinent part:
"If the medical examination and other available
information show to the satisfaction of the board .
that the member is incapacitated physically or mentally
for the performance of his duties in the state service
and•.is eligible to retire for disability, the board
shall forthwith retire him for disability . . "
VI
Respondent's industrial disability claim is based on an
orthopedic condition of the lower back which he contends resulted
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from an injury he received while arresting a drunk suspect on
December 15 , 1993 . The. circumstances surrounding the arrest are
as follows :
1 . Respondent and Officer Charles Carvajal , while on patrol
duty in separate vehicles , were dispatched to a location
regarding a property owner's complaint of trespassers . The
officers observed one of the three suspects at the scene to
be intoxicated to the extent that he was unable to exercise
care for his own safety. The officers arrested one of the
suspects , Gregory Esslair (hereinafter the "suspect" ) , for
public intoxication in violation of Penal Code section
647 (f) . The suspect was uncooperative with the officers but
did not fight with them nor physically resist their
actions .
2 . During the arrest process , the suspect fell into a bush
and respondent and Officer Carvajal each took hold of the
suspect and got him to his feet. The officers physically
guided and assisted the suspect as they walked him to
respondent's patrol unit where he was placed in the back
seat. Respondent and an explorer ride-along, who remainded
in respondent's patrol vehicle, subsequently transported the
suspect to the Orange County jail where he was booked for
outstanding warrants . The booking record reflects the
suspect's weight as 200 pounds , about the same weight of
respondent at the time of the arrest.
VII•
During the arrest of the suspect as set forth hereinabove,
respondent voiced no complaint to Officer Carvajal about his
back, nor did respondent manifest any visible or noticeable signs
of pain or distress during the incident. The arrest report on
the incident makes no mention of an injury or a struggle in
connection with the arrest.
VIII
The. City's policy concerning industrial injuries , requires
police officers to report all on-day injuries to his or her
supervisor as soon as possible following the injury. Respondent
was aware of the policy.
IX
On January 13 , 1994 , respondent filed an industrial injury
report with the City in which he described a mid/lower back
injury 4nd claimed it resulted from the December 15 , 1993 arrest
of the suspect as set forth hereinabove.
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Respondent ' s industrial injury claim was filed with the. City .
about four weeks after the claimed injury. The claim was also
filed after respondent had been placed on administrative leave
and put on notice that disciplinary action was contemplated for
his violation of the Department's pursuit policy and for lying to
a supervisor when he was questioned about a reported vehicle
code-3 pursuit that extended into the City of Santa Ana .
Respondent was aware that dishonesty was a serious offense for a
police officer and one which could result in termenation of his
employment.
XI
The following is a chronology of events after the claimed
injury in which respondent was in contact with his superiors at
the Department but failed to report or say anything about the
injury:
1 . At the end of the work shift on December 15 , 1993 , and
at the briefing for the next work shift on December 16 ,
1993 , respondent's immediate supervisor questioned him
about a reported Code-3 pursuit. Respondent did not
complain of an injury to his back nor did he appear to be
suffering from back pain.
2 . On December 21 , 1993 , respondent was interviewed in
connection with a personnel investigation. During the
interview with the investigating officer, respondent did not
mention a back injury and answered "no" to the question
whether he had "any physical , mental or emotional disability
that would impair the interview. " Shortly after the
interview respondent went on vacation to Oregon . On January
4 , 1994 , respondent returned to work and was immediately
placed on administrative leave pending completion of the
investigation. Respondent made no complaint of an injured
back to his superiors during the meeting of January 4 , 1994 .
3 . On January 11 , 1994 , respondent met with the Chief of
Police in connection with the personnel investigation and
his possible termination. During the meeting there was no
mention of a back injury by respondent, nor did he appear to
be under physical stress or suffering from back pain. On
January 27 , 1994 , respondent was served a notice of intent
to terminated his employment with the City. Respondent's
termination from employment as a police officer with the
City became effective on February 15 , 1994 .
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XII
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On February 8 , 1994 , respondent was examined by Stephen W.
Limberg, D.O. , who diagnosed respondent's injury as :
"Musculoligamentous strain or thoracolumbar spine. " ; and "Rule
out disc protrusion ; lumbar spine . "
Dr. Limberg prescribed a treatment plan that included seven
weeks of physical therapy and "Motrin" as an anti-inflammatory
and pain medication .
On April 5, 1994 , respondent's formal physical therapy ended
and Dr. Limberg changed the treatment plan to "home therapy" and
recommended that respondent remain off work for 30 days.
On May 3 , 1994 , respondent was reexamined by Dr. Limberg who
found respondent's orthopedic condition to be "permanent and
stationary" , and concluded among other things that respondent was
restricted "from performing very heavy work" and that respondent
"may experience an exacerbation of his back pain, which would
require a short course of physical therapy, and nonsteroidal
anti-inflammatory medication would also be recommended" , and that
"This patient has returned to lighter duty work and does not
appear that vocational rehabilitation will be necessary. "
• XIII
On April 8 , 1994 , respondent was examined by David S. Kim,
M.D. , a Diplomats of the American Board of Orthopedic Surgeons.
Dr. Kim's examination of respondent was in his capacity as .a
Qualified Medical Evaluator for the Office of Benefit
Determination, Division of Workers' Compensation. Dr. Kim's
examination included a review of respondent's work and medical
history, as well a physical and x-ray examinations , and a
Magnetic Resonance Imaging (MRI) finding.
Dr. Kim diagnosed respondent's back injury as: "Chronic
lumbosacral strain, musculoligamentous , superimposed over 2mm
focal central disc protrusion at L5-S1 . " Dr. Kim concluded, in
part, that he cannot " . correlate the patient's symptoms to
the incident that occurred on December 15 , 1993 . It is noted
this gentleman did not seek treatment until one month after the
alleged injury. Logic dictates Mr. Whitehead would have been
most acute right after the injury, not one month later. . . " and
that " . . . based on the patient's history and my review of
medical record, I cannot attribute the patient's low back
complaints to any work related factors . It is my opinion the
patient's present object factors, i . e. MRI Scan findings , are a
result of something -other than an industrial accident. "
On July 23 , 1996 , Dr. Kim again reviewed the material
available on respondent and opined that respondent is not
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permanently disabled from performing the duties as a police
officer. Dr. Kim stated that respondent " . . . is suffering from
a lumbosacral strain as well as a 2 mm central disc protrusion at
L5-S1 , which is minor . As such , I do not believe based solely on .
present available information , as well as my April of 1994
examination, that the patient is totally disabled from performing .
his usual and customary duties as a police officer. "
XIV
The City's Physical Standards ' requirements for police
officers identify numerous physical tasks , including: Sitting,
Standing, Walking/Moving, Running, Jumping/Hurdling/Vaulting,
Leaning/Stooping/Bending, Crouching/Squatting/Kneeling, Climbing ,
Crawling/Cramped Spaces , Lying, Turning/Twisting, Pushing,
Pulling/Dragging and many other identified physical tasks
required of a police officer.
XV
Respondent has been employed during the past 2 years as
supervisor of security at Mr. J's , a night club operation in
Orange County. His duties include overseeing security employees
at two locations. Occasionally, respondent is called upon to
assist in breaking up altercations among patrons in the premises .
There was no evidence offered that would tend to establish that
respondent is, or has been , unable to perform his duties with his
current employer.
XVI
The evidence presented in this matter does not support a
finding that respondent was injured while making an arrest on
December 15 , 1996 . Respondent did not immediately notify his
supervisor or any official in the Department as required by
Department's Absent and Injuries policy. The policy includes
provisions for light or restricted duty assignments where
appropiate during convalescence of an injured employee.
Moreover,- -respondent did not complain of an injury to his back
nor did he give the appearance of suffering from back pain until
about one month after. the time of the incident and after becoming
aware of the pending investigation that ultimately resulted in
his termination from employment as a police officer. Accordingly •
it was not established by the preponderance of the evidence that
respondent is incapacitated for the performance of duty as a
police officer as the result of an industrial disability.
XVII
The evidence presented in this matter, including the medical
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evidence that came in as direct evidence by way of stipulation,
does not support a finding that respondent is permanently
disabled or incapacitated for the performance of duty as a police
officer , by reason of an orthopedic condition of his lower back. .
DETERMINATION OF ISSUES
I
It was not establish by the preponderance of the evidence
that respondent is permanently disabled or incapacitated for the
performance of his duties as a police officer as the result of an
industrial disability, as set forth in Findings XVI and XVII ,
hereinabove.
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II
Respondent has the burden of proof to establish that he is
permanently disabled or incapacitated physically for the
performance of his job duties as a police officer as the result
of an industrial disability within the meaning of Government Code
sections 21020 and 21022 . Respondent did not meet his burden of
proof.
ORDER
The application of Russell Whitehead for disability
retirement benefits is hereby denied.
Dated: October 4 , 1996 .
FRANK BRITT
Administrative Law Judge
Office of Administrative Hearings
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rtr..•..nurr..�.. ....._ t P— ___. t:MA.4.._r 'Jfv'4'1{_r!' .. .. .r u. ry Kn. _ __ t._._.wa ..... ......._ _. .. .. .. ._
LAW OFFICES OF •
WOODRUFF, SPRADLIN& SMAI�
A PROFESSIONAL CORPORATION
MEMORANDUM
VIA FACSIMILE
AND FIRST CLASS MAIL
TO: Valerie Crabill, Senior Deputy City Clerk
City of Tustin
FROM: City Attorney
DATE: January 21, 1997
RE: Notice to be Provided in Russell Whitehead Matter/Final Decision Denying
Application for Disability Retirement Benefits
Enclosed herein is the form of the letter to be sent to Mr. Whitehead along with a
declaration of mailing. Also to be enclosed in the letter is a copy of the resolution adopted
by the City Council and a copy of the administrative law judge's decision. You have the
original of the resolution which needs to be executed before we can mail it. I have
enclosed a copy of Judge Britt's decision.
When this package is finally put together it should consist of the following:
1. Letter to Mr. Whitehead and Mr. Pingel;
2. Declaration of mailing;
3. Executed City Council Resolution;
4. Copy of Judge Britt's Decision.
Please let us know if you have any questions. Please try to get this out within the
next five working days.
/ ./
LOIS E. JEFF'
Enclosures
cc: William A. Huston, City Manager
Bettie, Correa, Senior Personnel Analyst
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[TO BE PLACED ON CITY OF TUSTIN LETTERHEAD]
January_, 1997
Russell Whitehead
11863 Fordham Place
Riverside, CA 92505
Steven R. Pingel, Esq.
Lemaire, Faunce, Pingel & Singer
3020 Old Ranch Parkway, Suite 290
Seal Beach, CA 90740-2751
Re: Application for Disability Retirement Benefits; Notice of Final Decision of
the City Council of the City of Tustin
Dear Mr. Whitehead and Mr. Pingel:
Please be advised that on January 20, 1997, the City Council of the City of Tustin
adopted the decision of Administrative Law Judge Britt denying your application for
disability retirement benefits. See copy of City Council Resolution and copy of Judge Britt's
decision enclosed.
Please be further advised that time within which judicial review may be sought is
found within Code of Civil Procedure Section 1094.6 and Tustin City Code Section 1140.
Sincerely,
City Clerk/Senior Deputy City Clerk
Enclosures
cc: William A. Huston, City Manager
Bettie Correa, Senior Personnel Analyst
Lois E. Jeffrey, City Attorney
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1 DECLARATION OF MAILING
2
STATE OF CALIFORNIA, COUNTY OF ORANGE
3
I am over the age of 18 and I am not a party to the within action. I am employed
4 by the CITY OF TUSTIN in the County of Orange, at 300 Centennial Way, Tustin, CA
92780-37.
5
On January_, 1997, I placed the document described as Letter to Russell
6 Whitehead and Steven R. Pingel regarding "Application for Disability Retirement Benefits;
Notice of Final Decision of the City Council of the City of Tustin," plus enclosures, in
7 sealed envelopes to:
8 Russell Whitehead
11863 Fordham Place
9 Riverside, CA 92505
10 Steven R. Pingel, Esq.
Lemaire, Faunce, Pingel & Singer
11 3020 Old Ranch Parkway, Suite 290
Seal Beach, CA 90740-2751
12
I placed the envelopes for collection and mailing by first class mail, following
13 ordinary business practices, at the business of the CITY OF TUSTIN, at the address set
forth above, for deposit in the United States Postal Service. I am readily familiar with the
14 practice of the CITY OF TUSTIN for collection and processing correspondence for mailing
with the United States Postal Service, and said envelopes will be deposited with the
15 United States Postal Service on said date in the ordinary course of business.
16 I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
17
Executed on January _, 1997, at Tustin, California.
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20 PAMELA STOKERNALERIE CRABILL
City Clerk/Senior Deputy City Clerk
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BEFORE THE CITY COUNCIL
OF THE CITY OF TUSTIN
STATE OF CALIFORNIA
In the Matter of the Application )
For Disability Retirement of : ) Resolution No . 94-126
RUSSELL WHITEHEAD )
OAH No . L-9602146
)
Respondent. ) PROPOSED DECISION
)
INTRODUCTORY STATEMENT
This matter came on regularly for hearing on July 23 , 1996 ,
at Tustin, California, before Frank Britt, an Administrative Law
Judge, of the Office of Administrative Hearings , State of
California.
The City of Tustin was represented by Woodruff, Spradlin &
Smart, Rodell R. Fick.
Russell Whitehead, respondent herein, appeared And was
represented by Lemaire, Faunce , Pingel & Singer , Steven R.
Pingel .
Evidence , both oral and documentary, was received and the
parties were granted the opportunity to submit written argument.
Respondent's opening brief was timely filed and marked as Exhibit
H, for identification. The City of Tustin's reply brief was
received on September 17 , 1996 , and marked for identification as
Exhibit 16 . No reply brief was received from Respondent by its
due date of September 27 , 1996 . The matter is now deemed
submitted.
Accordingly , the record is closed and the Administrative Law
Judge proposes the following decision and recommends its adoption
by the City Council of the City of Tustin.
FINDINGS OF FACT
I
The City of Tustin is a contracting agency of the Public
Employees Retirement System of the State of California.
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01-22-97 11 :55AM FROM WOODRUFF SPRADL[NETC TO 8381602 P002/002
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xx
The .Pu agency o Emloyee Retirement Law requires that a
contracts
Olaseified as a local safety e whether an employe. who is
v£ such law and if so, whethr much ds ability for the trial"eg
thin the meaning of eaid law, disability is "Industrial"
III
Tustin a office with Pooliccee entortthe`cityof employed
a • a police
February 14, 1994, then he"city) feoe august 1987 until onyor about
et the time of his termination, was classified casaa' cal safety,
member by reason of his deployment with the city as local safety
officer.
Y a police
IV
On or about June 23, 1994, rag
for industrial disability retirement witht tiled an suantcto th
City's Personnel Rules and�R�egulaern with per. 0 Retirement
en the
Review Board reviewed the mad£pal evidence the and determined Retirement
Employees' Ries not disabled within the meaning dat the Public
that
p $ tirement Lae. On No 1 the PCityc
Council of the City of Tustin in itv�rsolution4No.the determined, based oh the found
that respondent is not incapacitated Retirement Board's decision,o h
Public Employees' Retirement Law for the for ceiof his
the
position or police officer_
Respondent wan duly notified of the city Council's decision •
and his right to appeal hearing
Judge. Respondent timely fild an appeal an Administrative Law
his application for disability retirement of benefits. Th denial of
the City served a statement of issues tom' Thereafter,
sections 2202$ and 11504. The Initial Statement ra to fOTi� code
recited the following issues to he determined t of Tissues
hearing:
1. Whether or not Russell Whitehead Was incapacitated
by physical 'injuries which prevented him from
portioning the usual duties of the position of a Tustin
snbilitylrttirement time or his application for p
benefits.
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pa. Whether or not Russell Whiteheed Was incapacitated
rp psychological injuries which prevented him from
police officer the usual eduties of
.ts position of a Tustin
disability retirement benefits. application for PeRS
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JAN-22-1997 12:02 714 835 7787 96i P:02
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On July 19 , 1996 , the City filed an Amended Statement of
Issues after respondent withdrew his appeal on the issue set
forth hereinabove relating to incapacitation by reason of
psychological injuries . Accordingly, the issue as framed by the
Amended Statement of Issues is :
"Whether or not respondent was incapacitated by
physical injuries which prevented him from performing
the usual duties of a Tustin Police Officer at the time
of his application for PERS disability retirement
benefits . "
The additional issue involved in this matter is whether or
not respondent's claimed incapacitation for the performance of
duty as a police officer is the result of an industrial
disability within the meaning of Government Code section 21022 .
V
The following provisions of the Government Code are
applicable to public employees ' disability retirement matters .
Section 21022 provides in pertinent part:
"Any patrol , state safety member, state industrial ,
state peace officer/firefighter , or local safety member
incapacitated for the performance of duty as the result
of an industrial disability shall be retired for
disability, pursuant to this chapter, regardless of age
or amount of service. "
Section 21020 provides in pertinent part:
" . . . 'disability' and 'incapacity for performance of
duty' as a basis for retirement, mean disability of
permanent or extended and uncertain duration, as
determined by the board. . .on the basis of competent
medical opinion. "
Section 21025 provides in pertinent part:
"If the medical examination and other available
information show to the satisfaction of the board . . .
that the member is incapacitated physically or mentally
for the performance of his duties in the state service
and is eligible to retire for disability, the board
shall forthwith retire him for disability . . . . "
VI
Respondent's industrial disability claim is based on an
orthopedic condition of the lower back which he contends resulted
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from an injury he received while arresting a drunk suspect on
December 15 , 1993 . The circumstances surrounding the arrest are
as follows :
1 . Respondent and Officer Charles Carvajal , while on patrol
duty in separate vehicles , were dispatched to a location
regarding a property owner's complaint of trespassers . The
officers observed one of the three suspects at the scene to
be intoxicated to the extent that he was unable to exercise
care for his own safety. The officers arrested one of the
suspects , Gregory Esslair (hereinafter the "suspect" ) , for
public intoxication in violation of Penal Code section
647 (f) . The suspect was uncooperative with the officers but
did not fight with them nor physically resist their
actions .
2 . During the arrest process , the suspect fell into a bush
and respondent and Officer Carvajal each took hold of the
suspect and got him to his feet. The officers physically
guided and assisted the suspect as they walked him to
respondent's patrol unit where he was placed in the back
seat. Respondent and an explorer ride-along, who remainded
in respondent's patrol vehicle, subsequently transported the
suspect to the Orange County jail where he was booked for
outstanding warrants. The booking record reflects the
suspect's weight as 200 pounds , about the same weight of
respondent at the time of the arrest.
VII
During the arrest of the suspect as set forth hereinabove,
respondent voiced no complaint to Officer Carvajal about his
back, nor did respondent manifest any visible or noticeable signs
of pain or distress during the incident. The arrest report on
the incident makes no mention of an injury or a struggle in
connection with the arrest.
VIII
The City's policy concerning industrial injuries , requires
police officers to report all on-day injuries to his or her
supervisor as soon as possible following the injury. Respondent
was aware of the policy.
IX
On January 13 , 1994 , respondent filed an industrial injury
report with the City in which he described a mid/lower back
injury and claimed it resulted from the December 15 , 1993 arrest
of the suspect as set forth hereinabove.
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x
Respondent ' s industrial injury claim was filed with the City
about four weeks after the claimed injury. The claim was also
filed after respondent had been placed on administrative leave
and put on notice that disciplinary action was contemplated for
his violation of the Department's pursuit policy and for lying to
a supervisor when he was questioned about a reported vehicle
code-3 pursuit that extended into the City of Santa Ana.
Respondent was aware that dishonesty was a serious offense for a
police officer and one which could result in termenation of his
employment.
XI
The following is a chronology of events after the claimed
injury in which respondent was in contact with his superiors at
the Department but failed to report or say anything about the
injury:
1 . At the end of the work shift on December 15 , 1993 , and
at the briefing for the next work shift on December 16 ,
1993 , respondent's immediate supervisor questioned him
about a reported Code-3 pursuit. Respondent did not
complain of an injury to his back nor did he appear to be
suffering from back pain.
2 . On December 21 , 1993 , respondent was interviewed in
connection with a personnel investigation. During the
interview with the investigating officer, respondent did not
mention a back injury and answered "no" to the question
whether he had "any physical , mental or emotional disability
that would impair the interview. " Shortly after the
interview respondent went on vacation to Oregon. On January
4 , 1994 , respondent returned to work and was immediately
placed on administrative leave pending completion of the
investigation. Respondent made no complaint of an injured
back to his superiors during the meeting of January 4 , 1994 .
3 . On January 11 , 1994 , respondent met with the Chief of
Police in connection with the personnel investigation and
his possible termination. During the meeting there was no
mention of a back injury by respondent, nor did he appear to
be under physical stress or suffering from back pain. On
January 27 , 1994 , respondent was served a notice of intent
to terminated his employment with the City. Respondent's
termination from employment as a police officer with the
City became effective on February 15 , 1994 .
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XII
On February 8 , 1994 , respondent was examined by Stephen W.
Limberg, D.O. , who diagnosed respondent's injury as :
"Musculoligamentous strain or thoracolumbar spine. " ; and "Rule
out disc protrusion; lumbar spine. "
Dr. Limberg prescribed a treatment plan that included seven
weeks of physical therapy and "Motrin" as an anti-inflammatory
and pain medication.
On April 5 , 1994 , respondent's formal physical therapy ended
and Dr. Limberg changed the treatment plan to "home therapy" and
recommended that respondent remain off work for 30 days.
On May 3 , 1994 , respondent was reexamined by Dr. Limberg who
found respondent's orthopedic condition to be "permanent and
stationary" , and concluded among other things that respondent was
restricted "from performing very heavy work" and that respondent
"may experience an exacerbation of his back pain, which would
require a short course of physical therapy, and nonsteroidal
anti-inflammatory medication would also be recommended" , and that
"This patient has returned to lighter duty work and does not
appear that vocational rehabilitation will be necessary. "
XIII
On April 8 , 1994 , respondent was examined by David S. Kim,
M.D. , a Diplomate of the American Board of Orthopedic Surgeons.
Dr. Kim's examination of respondent was in his capacity as a
Qualified Medical Evaluator for the Office of Benefit
Determination, Division of Workers' Compensation. Dr. Kim's
• examination included a review of respondent's work and medical
history, as well a physical and x-ray examinations , and a
Magnetic Resonance Imaging (MRI) finding.
Dr. Kim diagnosed respondent's back injury as : "Chronic
lumbosacral strain, musculoligamentous , superimposed over 2mm
focal central disc protrusion at L5-S1. " Dr. Kim concluded, in
part, that he cannot " . . . correlate the patient's symptoms to
the incident that occurred on December 15 , 1993 . It is noted
this gentleman did not seek treatment until one month after the
alleged injury. Logic dictates Mr. Whitehead would have been
most acute right after the injury, not one month later. . . " and
that " . . . based on the patient's history and my review of
medical record, I cannot attribute the patient's low back
complaints to any work related factors. It is my opinion the
patient's present object factors , i .e. MRI Scan findings, are a
result of something -other than an industrial accident. "
On July 23 , 1996 , Dr. Kim again reviewed the material
available on respondent and opined that respondent is not
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permanently disabled from performing the duties as a police .
officer. Dr. Kim stated that respondent " . . . is suffering from
a lumbosacral strain as well as a 2 mm central disc protrusion at
L5-S1 , which is minor. As such, I do not believe based solely on
present available information, as well as my April of 1994
examination, that the patient is totally disabled from performing
his usual and customary duties as a police officer. "
XIV
The City's Physical Standards' requirements for police
officers identify numerous physical tasks , including: Sitting,
Standing, Walking/Moving, Running, Jumping/Hurdling/Vaulting,
Leaning/Stooping/Bending, Crouching/Squatting/Kneeling, Climbing,
Crawling/Cramped Spaces , Lying, Turning/Twisting, Pushing,
Pulling/Dragging and many other identified physical tasks
required of a police officer.
XV
Respondent has been employed during the past 2 years as
supervisor of security at Mr. J's , a night club operation in
Orange County. His duties include overseeing security employees
at two locations . Occasionally, respondent is called upon to
assist in breaking up altercations among patrons in the premises.
There was no evidence offered that would tend to establish that
respondent is, or has been, unable to perform his duties with his
current employer.
XVI
The evidence presented in this matter does not support a
finding that respondent was injured while making an arrest on
December 15, 1996 . Respondent did not immediately notify his
supervisor or any official in the Department as required by
Department's Absent and Injuries policy. The policy includes
provisions for light or restricted duty assignments where
appropiate during convalescence of an injured employee.
Moreover, respondent did not complain of an injury to his back
nor did he give the appearance of suffering from back pain until
about one month after the time of the incident and after becoming
aware of the pending investigation that ultimately resulted in
his termination from employment as a police officer. Accordingly
it was not established by the preponderance of the evidence that
respondent is incapacitated for the performance of duty as a
police officer as the result of an industrial disability.
XVII
The evidence presented in this matter, including the medical
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evidence that came in as direct evidence by way of stipulation.,
does not support a finding that respondent is permanently
disabled or incapacitated for the performance of duty as a police
officer , by reason of an orthopedic condition of his lower back.
DETERMINATION OF ISSUES
I
It was not establish by the preponderance of the evidence
that respondent is permanently disabled or incapacitated for the
performance of his duties as a police officer as the result of an
industrial disability, as set forth in Findings XVI and XVII ,
hereinabove.
II
Respondent has the burden of proof to establish that he is
permanently disabled or incapacitated physically for the
performance of his job duties as a police officer as the result
of an industrial disability within the meaning of Government Code
sections 21020 and 21022 . Respondent did not meet his burden of
proof.
ORDER
The application of Russell Whitehead for disability
retirement benefits is hereby denied.
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Dated: October 4 , 1996 .
•,jl� ry4.
FRANK BRITT
Administrative Law Judge
Office of Administrative Hearings
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