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Resolution No. 70841 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 7084 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON GRANTING THE INDUSTRIAL DISABILITY RETIREMENT OF ROBERT L. SMITH, A FIRE ENGINEER EMPLOYED BY THE CITY OF VERNON (Government Code Sections 21154 and 21156) WHEREAS, the City of Vernon (hereinafter referred to as "Agency") is a contracting agency of the Public Employees' Retirement System; and WHEREAS, the Public Employees' Retirement Law requires that a contracting agency determine whether an employee of such agency in employment in which he is classified as a fire engineer is physically or mentally incapacitated to perform his duties for purposes of the Public Employees' Retirement Law; and WHEREAS, Robert L. Smith, employed by the Agency in the position of Fire Engineer, on or about December 15, 1997, filed'an application for industrial disability retirement with the Public Employees' Retirement System, and the Public Employees' Retirement System requested the Agency, on or about January 22, 1998, to make a determination regarding whether Mr. Smith was incapacitated for the performance of his duties and therefore eligible to retire for industrial disability; and WHEREAS, by letter dated January 28, 1998, the City notified Mr. Smith that the matter of his disability retirement based on the findings contained in the medical reports would be considered by the City Council; and WHEREAS, the City Council of the City of Vernon has reviewed the medical evidence submitted by Dr. David Landers of TechniMed and Pratap Saraf, M. D., F.A.C.P., F.C.C.P., and other 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence relevant to whether Mr. Smith was incapacitated, and WHEREAS, the City Council of the City of Vernon has reviewed evidence both as to whether any incapacity was industrial and as to whether any third -party liability is possible with respect to any incapacity. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that Robert L. Smith is incapacitated within Ithe meaning of the Public Employees' Retirement Law for the performance of his duties in the position of Fire Engineer in the Vernon Fire Department. SECTION 2: The City Council of the City of Vernon hereby finds and determines that such disability is industrial, in that it is the result of injury or disease arising out of and in the course of employment, that neither the City Council of the City of Vernon nor Robert L. Smith has applied to the Workers' Compensation Appeals Board for a determination pursuant to Section 21026 whether such alleged disability is industrial, and that there is no possibility of third -party liability in this case. SECTION 3: The City Council of the City of Vernon hereby determines from the November 1, 1997, medical report of Dr. David Landers of TechniMed and the November 26, 1997, medical report of Pratap Saraf, M. D., that Robert L. Smith is unable to substantially perform the duties of his position as Fire Engineer and therefore should be retired. The City Council further determines that the permanent and stationary date for retirement purposes is November 26, 1997, that the last day Mr. Smith will be on the City's payroll -2- 1 2 3 4 5 6 7 8 9 10 111 12 17 18 19 20 21 22 23 24 25 26 27 28 is March 4, 1998, and that Mr. Smith's retirement is effective the end of the business day on March 4, 1998, and that no dispute as to the expiration of such leave rights is pending. SECTION 4: The City Clerk shall notify Mr. Smith of the City Council Is determination granting his application for industrial disability retirement. SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 3rd day of February, 1998. ATTEST: BRUCE V. MALKENHORST, City Clerk -3- LEONIS C. MALPURG, M yor 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 7084, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, February 3, 1998, and thereafter was duly signed by the Mayor of the City of Vernon. BRUCE V. MALKENHORST, City Clerk (SEAL) -4- SUPPORTING DOCUMENTS Ices Division P.O. Box *2796 Sacramento, CA 95812-2796 (916) 326-3232; FAX (916) 658-1280 Telecommunications Device For The Deaf--(916) 326-3240 Robert L. Smi 136 West Cy ess Apt 7 Monrovia C /P91060 Dear Robert L. Smith : Reply to: Section 432 Refer to: 545-40-8353 JAN 0 6 1998 This letter acknowledges receipt of an application for your disability retirement. A copy of the application has been forwarded to your employer for a determination of your disability. It is required that they make this determination within six months of our request unless you waive the requirements of this provision (Section 21025.1, Government Code). Following your employer's finding of substantial incapacity, your retirement cannot be cancelled. However, if you are eligible, and wish to change to a service retirement in lieu of disability ,retirement, you must apply for the change prior to the effective date of your disability retirement or within 30 days after notification of approval (Section 21025, Government Code). Under the law, if a person (other than your employer) caused an injury that results in certain PERS benefits being paid, then PERS has the right to recover from the responsible person up to one-half of the total retirement benefit costs payable due to this injury. This right is known as a "right of subrogation" (Gov. Code section 21450 et seq.)., If you pursue a claim against any person for the same injuries that also entitle you to disability retirement from PERS (other thah a Workers' Compensation claim or an uninsured motorist claim) YOU MUST INFORM PERS OF THE EXISTENCE OF THIS CLAIM. This is true even if the claim has not yet resulted in a court action. PERS has the right to participate in any such claim either through filing its own action against the responsible party, intervening in your claim, or filing a lien against any judgment which you may recover. IF YOU SETTLE SUCH A CLAIM WITHOUT NOTIFYING PERS, PERS MAY ALSO BE ENTITLED TO FILE A LAWSUIT AGAINST YOU FOR RECOVERY OF PERS' SUBROGATION RIGHTS. California Public Employees' Retirement System Lincoln Plaza-400 P Street -Sacramento, CA r Aou entered your safety membership category after January 1, 1980, your industrial disability allowance may be less than 50% of your final compensation. The allowance cannot exceed the amount that would be payable for a service retirement at age 55 if you had continued in employment until age 55. This limit does not apply if your agency has contracted to offer the 50% - 90% industrial disability allowance, or if you were disabled because of a direct violent act upon your person or as a result of hazardous and dangerous duty required for your position (Section 21292.6, Government Code). If you are notified by PERS that your disability application has been approved, and upon receipt of a separation document from your employer reflecting your last day on the payroll, the System will calculate and send the optional settlement information that you requested on your application. This information will be sent to you on our form PERS-BAS-898, Election of Optional Settlement and Beneficiary Designation. The form will require the notarized signature of both you and your spouse. If at any time prior to the mailing of your first warrant you wish to receive a refund of your accumulated contributions in a lump sum in lieu of a retirement allowance, you may do so by sending written notification to the return address shown above. Membership in PERS terminates upon the mailing of a warrant refunding contributions, making you ineligible for future benefits unless you return to employment covered by PERS (Section 20390, Government Code). If you have any questions, please contact us. Sincerely, JOYCE MCKIBBEN BENEFIT APPLICATION SERVICES DIVISION : 0209 VERNON CITY V91c Attn: Personnel Officer PERS-BAS-183B (Rev.1/91) California Public Employees' Retirement System Lincoln Plaza-400 P Street -Sacramento, CA CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Tern Wm. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 January 29, 1998 Mr. Robert L. Smith 136 West Cypress Apt. 7 Monrovia, CA 91060 RE: Application for Disability Retirement Dear Mr. Smith: DAVID B. BREARLEY City Attorney FAX (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX: (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) 583-1983 DAVE TELFORD Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 The city has received a request from PERS, dated January 22, 1998, with regard to your December 15, 1997, application for disability retirement. You are hereby advised that approval of your disability retirement will be recommended to the City of Vernon City Council at their regular meeting to be held February 3, 1998. If you have any questions or comments do not hesitate to contact the Risk Management office. Very truly yours, CITY OF VERNON Bruce V. Malken O City Administrator/City Clerk cc: Risk Management City Council /gj o :PreD9b1ty0K CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Tern Wm. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 CITY HALL 4W5 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 February 17, 1998 PERS Benefits Application Division P.O. Box 2796 Sacramento, CA 95812-2796 Attention: Ms. Joyce McKibben DAVID B. BREARLEY City Attorney FAX: (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) 583-1983 DAVE TELFORD Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 RE: Determination of Disability Retirement of Robert L. Smith Dear Ms. McKibben: On January 22, 1998, you requested, pursuant to Government Code Section 21024, that the City of Vernon make a determination regarding whether Robert L. Smith, a Local safety member employed by the City of Vernon, is physically or mentally incapacitated to perform duties and, therefore, eligible to retire on disability. On February 3, 1998, the City of Vernon City Council reviewed the medical evidence and other evidence relevant to whether Mr. Smith is incapacitated and determined that he is incapacitated by adopting Resolution No. 7084. A certified copy of said resolution is enclosed with this letter. Pursuant to Government Code Section 21025, the City Council hereby notifies you of its determination that Mr. Robert L. Smith is incapacitated to perform his duties. BVM/gjo encs. cc: Joan Francone, Risk Manager Resolution File Very truly yours, CITY OF VERNON Bruce V. Malkenh st City Administrat ;PERSOKd lu CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Tern Wm. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 CITY HALL 4M5 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 February 17, 1998 Mr. Robert L. Smith 136 West Cypress Apt. 7 Monrovia, CA 91060 RE: Disability Determination by the City Council Dear Mr. Smith: DAVID B. BREARLEY City Attorney FAX: (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX: (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) 583-1983 DAVE TELFORD Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 After conclusion of the hearing to determine your disability retirement, the City Council determined to grant your industrial disability retirement. The City Council made this determination through the adoption of Resolution No. 7084, a copy of which is enclosed herewith. If you have any further questions regarding this matter, please do not hesitate to contact the Risk Management Office. Very truly yours, CITY F VERNON �i ruce V. Malken orst City Administr Lion BVM/gjo cc: J. Francone :PERSMp yel OK CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro-Tem Wm. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL MCCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 January 29, 1998 City Council City of Vernon Honorable Members: DAVID B.13REARLEY City Attorney FAX: (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX: (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) 583-1983 DAVE TELFORD Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 Robert Smith applied for a disability retirement and on January 22, 1998, the City received a copy of his application and a request from PERS to make a determination of Mr. Smith's disability in accordance with Government Code Section 21154 and 21156. Mr. Smith underwent his annual Respirator User Non Haz-Mat Exam on October 29, 1997, conducted by Dr. David Landers of TechniMed. In his report, Dr. Landers determined Mr. Smith not approved for respirator use based on abnormal tests. Mr. Smith was directed to obtain further examinations from his personal physician. Mr. Smith was examined by Pratap Saraf, M.D., on November 3, 1997. In a letter dated November 26, 1997, Dr. Saraf determines that Mr. Smith has a moderately severe obstructive pulmonary disease, with a pattern consistent with pulmonary emphysema, with significantly diminished diffusing capacity. Dr. Saraf concludes that Mr. Smith is unable to perform his duties with the internal problems that he has. It is a permanent disability. Based on the reports of Dr. Landers and Dr. Saraf, it is recommended that Council approve the industrial disability retirement of Robert Smith, effective March 4, 1998. BVM/mm enclosure Very truly yours, Bruce V. Malkenhorst City Clerk TO: Bruce V. Malkenhorst, City Administrator FROM: Joan Francone, Risk Manager DATE: January 29, 1998 SUBJECT: AMENDED INDUSTRIAL DISABILITY RETIREMENT - ROBERT L. SMITH, FIRE ENGINEER Robert Smith applied for an Industrial Disability Retirement on December 15, 1997. On January 22, 1998, the City received by fax a copy of his application and a request from PERS to make a determination of Mr. Smith's disability in accordancewith Government Code Sections 21154 and 21156. Mr. Smith underwent his annual Respirator User Non Haz-Mat Exam on October 29, 1997 conducted by Dr. David Landers of TechniMed. In his report, Dr. Landers determined Mr. Smith not approved for respirator use based on abnormal tests. Mr. Smith was directed to obtain further examinations from his personal physician. Mr. Smith was examined by Pratap Saraf, M.D. on November 3, 1997. In a letter dated November 26, 1997, Dr. Saraf determines that Mr. Smith has a moderately severe obstructive pulmonary disease, with a pattern consistent with pulmonary emphysema, with significantly diminished diffusing capacity. Dr. Saraf concludes that Mr. Smith is unable to perform his duties with the internal problems that he has. It is a permanent disability. Based on the reports of Dr. Landers and Dr. Saraf it is recommended that Council approve the industrial disability retirement of Robert Smith. The effective date of retirement is March 2, 1998. JF/ca Enclosures c: City Attorney VIA jF RS Benefit Application Services Division P.O. Box 2796 Sacramento, CA 95812-2796 (916) 326-3232; FAX (916) 658-1280 Telecommunications Device For The Deaf--(916) 326-3240 0209 VERNON CITY Attn: Personnel Officer Re: DISABILITY RETIREMENT APPLICATION FOR: Name: Robert L. Smith Social Security Number: 545-40-8353 Birth Date: 11-24-32 Application Received: 12-15-97 JAN JA 41 JAN 13" Enclosed is a copy of the application which is being filed with your agency for a determination of the member's disability, in accordance with Section 21024 and 21025, Government Code. It is required that you make this determination within six months of this request unless the local safety member waives the - requirements of this provision (Section 21025.1, Government Code). Under the Public Employees' Retirement Law, disability means the incapacity of a member for the performance of duty in public services for permanent or extended and uncertain duration, as determined on the basis of competent medical opinion. Disability is not necessarily an inability to perform every fuction of a given position. Rather, the courts have concluded that the test in any case is whether the employee can substantially perform the duties of the position he occupies. These criteria apply whether the member is being retired or is being reinstated from disability retirement. Disputed questions regarding the industrial relationship of the disabling injury to the member's work will be resolved by the Workers' Compensation Appeals Board. In the event there is no dispute, such a finding can be made by the employer. A Workers' Compensation Award is not sufficient evidence that a local safety member is disabled for retirement purposes. There must be a specific finding under Section 21026, Government Code, by the employer, with respect to the disability for which he will be retired. If it is determined that the member is not disabled for the performance of his duties, a Resolution to that effect must be filed with the System. Please refer to Sample resolution No. 1, Benefits Procedures, Procedures Manual for Public Agency reporting to the Public Employees' Retirement System. If the member is found to be disabled, the following will apply: California Public Employees' Retirement System Lincoln Plaza-400 P Street -Sacramento, CA The Retirement System will require at least the following documentation: 1. A finding that disability exists. 2. a. A finding by your agency as to whether or not the disability is industrial. b. In case of a dispute, a Findings and Award by the WCAB, resolving the industrial relationship. 3. A certified statement (Resolution) by the local agency, indicating last day member is on payroll. In case of a dispute regarding the member's effective date of retire- ment, a request must be filed with the WCAB for Finding of Fact to determine on what date the member's condition became permanent and stationary. That date then becomes the effective date of retirement (Government Code Section 21025.4) 4. A statement identifying the type of disability retirement determined, i.e., non -industrial disability retirement or industrial disability retirement. A member must have a minimum of five years of credited service to qualify for non -industrial disability retirement. If a member does not meet the minimum service requirements for disability retirement, he may still qualify by redepositing previously withdrawn contributions, or contributing an amount for service rendered prior to membership with the System. Time during which the member is absent from State service by reason of injury or illness, which is determined within one year after the end of such absence to be job -related, shall be considered as time spent in State service for the purpose of qualification for retirement and death benefits. 5. A statement by the agency to the effect that there is, or is not, a possibility of third -party liability present, if member's disability was caused by negligence or an intentional act of a party other than employer. 6. A statement identifying the reason for the disability, i.e. orthopedic, psychological, cardio-vascular, internal, neurological or other. 7. If advanced disability pension payments will be paid to the member, include the monthly amount. Also include where the reimbursement check should be mailed. 8. If the employee was hired after 1-1-80, include the following in accordance with G.C. Section 21292.6: a. Was the disability due to hazardous portions of duty? b. Was the disability due to a direct act perpetrated against the employee? California Public Employees' Retirement System Lincoln Plaza-400 P Street -Sacramento, CA &I All such documentation submitted by your agency must be signed by the governing body or its lawful delegate (City Manager, Chief Administrative Officer, County Executive, or other comparable individual). If the governing body chooses to delegate the responsibility of making a determination, a certified copy of the delegation order of this authority must accompany the findings by such delegate in each instance. Under the law, if a person (other than the employer) caused an injury that results in certain PERS benefits being paid, then PERS has the right to recover from the responsible person up to one-half of the total retirement benefit costs payable due to this injury. This right is known as a "right of subrogation". (Gov. Code sec. 21450 et seq.) Accordingly, the Retirement System requests that you, as the local agency, send us copies of all injury reports sent to the State Compensation Insurance Fund (or your Workers' Compensation carrier) concerning any and all injuries sustained by this, employee. Please advise us if you are aware our member is pursuing a claim (other than a Workers' Compensation claim) against any person or entity for the same injuries that also entitle the member to a disability retirement from PERS. We hope the above information is helpful to you. If you have any questions, please call. JOYCE MCKIBBEN BENEFIT APPLICATION SERVICES DIVISION PUBLIC EMPLOYEES' RETIREMENT SYSTEM CC: Robert L. Smith 136 West Cypress Apt 7 Monrovia Ca 91060 PERS-BAS-175 (Rev. 1/91) California Public Employees' Retirement System Lincoln Plaza-400 P Street -Sacramento, CA o •� .` Ul 3 c c o u O Y cz C oUO W6 -O C 0 Co O CZ i w Ocz u o cz u Y � L W M� y o O o 'E O - v .. �4 O a y cz r-4 w00 [� Y W o' U N u N •Y O �+ yam. 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