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Resolution No. 782141 1 RESOLUTION NO. 7821 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON GRANTING THE DISABILITY RETIREMENT OF GARY 4 A. WISKUS, A LOCAL SAFETY MEMBER EMPLOYED BY THE 5 CITY OF VERNON (Government Code Sections 21154 and 21156) 6 7 WHEREAS, the City of Vernon (hereinafter referred to as 8 "Agency") is a contracting agency of the Public Employees' Retirement 9 System; and 10 WHEREAS, the Public Employees' Retirement Law requires that a 11 contracting agency determine whether an employee of such agency in 12 employment in which he is classified as a local safety member is 13 physically or mentally incapacitated to perform his duties for purposes 14 of the Public Employees' Retirement Law; and 15 WHEREAS, on or about August 29, 2000, Gary A. Wiskus, 16 employed by the Agency in the position of Battalion Chief in the Vernon 17 Fire Department, filed an application for service pending industrial 18 disability retirement with the Public Employees' Retirement System 19 ("PERS") ; and 20 WHEREAS, on or about September 27, 2000, PERS requested the 21 Agency make a determination regarding whether Gary A. Wiskus was 22 incapacitated from the performance of his duties and therefore eligible 23 to retire for disability; and 24 WHEREAS, by letter dated August 15, 2001, Bruce V. 25 Malkenhorst, the City Administrator, notified Gary A. Wiskus that the 26 matter of his orthopedic disability retirement, based on the findings 27 contained in the medical reports, would be considered by the City 28 Council; and 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ma WHEREAS, the City Council of the City of Vernon has reviewed medical evidence and other evidence relevant to whether Mr. Wiskus 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 Gary A. Wiskus is disabled within the meaning of the Public Employees' Retirement Law from the performance of his duties in the position of Battalion Chief in the Vernon Fire Department. SECTION 2: The City Council of the City of Vernon hereby finds and determines that such orthopedic disability is industrial, in that it is the result of injury or disease arising out ofandin the course of employment, that neither the City Council of the City of Vernon nor Gary A. Wiskus has applied to the Workers' Compensation Appeals Board for a determination pursuant to Section 21026 to determine 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 orthopedic evaluation report of Dr. David B. Landers dated April 16, 2001, that Gary A. Wiskus is unable to perform the essential job function of his position as a Battalion Chief in the Vernon Fire Department, that no appropriate reasonable accommodation can be made to do so and that the permanent and stationary date for - 2 - 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 retirement purposes is April 10, 2001. The City Council therefor determines that Mr. Wiskus should be retired. The last day Gary A. Wiskus was on the City's paXroll was December 3, 2000, and Mr. Wiskus retired effective December 3, 2000. SECTION 4: The City Clerk shall notify Gary A. Wiskus of the City Council's determination granting his application for 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 22"d day of August, 2001. ATTEST: BRUCE V. MALKENHORST, City Clerk LEONIS C. BURG, YMayor - 3 - 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. 7821, was duly adopted by the City Council of the City of Vernon at an adjourned regular meeting of the City Council duly held on Wednesday, August 22, 2001, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) D1%UVL' V . 1'1'11J1\J.:L1V11V1\J 1, trlt .y \w1Gl J1 - 4 - SUPPORTING DOCUMENTS 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 (323) 581-7924 City Council City of Vernon Honorable Members: CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 August 13, 2001 EDUARDO OLIVO City Attorney FAX: (562) 927-8722 KEVIN WILSON Director of Community Services & Water FAX: (323) 588-2761 KENNETH J. DeDARIO Director of Municipal Utilities FAX: (323) 583-1983 STEVEN E. PARKER Fire Chief FAX: (323) 581-1385 BRUCE W. OLSON Police Chief FAX: (323) 583-5236 Former Battalion Chief Gary Wiskus retired on a Service Retirement on December 3, 2000, pending a disability determination. He applied for Industrial Disability Retirement on August 29, 2000. In accordance with Government Code Section 21154 and 21156 the City is required to make a determination of his disability. Mr. Wiskus was hired as a firefighter on February 1, 1968. In a report dated April 16, 2001, submitted by Dr. David Landers he concluded that Mr. Wiskus cannot perform the essential job functions of a firefighter, and that it appears that appropriate reasonable accommodation cannot be made to allow him to do so. He rated him as is Permanent & Stationary as of April 10, 2001. Further information provides that his disability is orthopedic, that a third party liability does not exist and neither the City of Vernon or Mr. Wiskus has applied to the Workers' Compensation Appeals Board for any determination. Based on Dr. Landers's medical report it is hereby recommended that application of Gary Wiskus for Industrial Disability Retirement be approved effective December 3, 2000. Very truly yours,���� Bruce V. Malkenhorst City Administrator/City Clerk CITY CO LEONIS C. M B G Mayor THOMAS A. Mayor P em WM. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL MCCORMICK Councilman BRUCE V. MALKENHORST City Administrator / City Clerk FAX (323) 581-7924 Mr. Gary A. Wiskus 18573 Santa Isadora Fountain Valley, CA CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 92708 August 14, 2001 RE: Request for Industrial Disability Retirement Dear Mr. Wiskus: EDUARDO OLIVO City Attorney FAX: (562) 927-8722 KEVIN WILSON Director of Community Services & Water FAX: (323) 588-2761 KENNETH J. DeDARIO Director of Municipal Utilities FAX: (323) 583--1983 STEVEN E. PARKER Fire Chief FAX: (323) 581-1385 BRUCE W. OLSON Police Chief FAX: (323) 583-5236 The matter regarding your application for an Industrial Disability Retirement will be heard by the City of Vernon City Council on Wednesday, August 22, 2001, at approximately 5 o'clock p.m. I will be recommending to the City Council that your application for such disability be approved. Very truly yours, CITY OF VERNON Bruce V. Malkenhorst City Administrator/City Clerk cc: City Attorney Risk Manager /gjo yi MEMORANDUM RISK MANAGEMENT/PERSONNEL I jj 7 TO: Bruce V. Malkenhorst, City Administrator FROM: Joan Francone, Risk Manager/Personnel Assistant DATE: May 9, 2001 SUBJECT: INDUSTRIAL DISABILITY RETIREMENT GARY A. WISKUS, BATTALION CHIEF RETIRED Gary Wiskus, Vernon Fire Department Battalion Chief retired, applied for a Service Pending Industrial Disability Retirement on August 29, 2000. In accordance with Government Code Sections 21154 and 21156, PERS requested that the City make a determination as to his industrial disability in a letter dated September 14, 2000 and received by the City on September 27, 2000. Mr. Wiskus was hired as a firefighter on February 1, 1968. He advanced through the ranks retiring as a Battalion Chief. During his tenure he suffered several work -related injuries including low back injury on 1-29-77, left hip injury on 8-24-81, back strain 1-21-82, and chemical exposure on 4-6-89, among others. In a report dated April 16, 2001, David B. Landers, M.D. Medical Director at Technimed - Vernon concludes that Mr. Wiskus can not perform the essential job functions of a firefighter and that no appropriate reasonable accommodation can be made to allow him to do so. He is Permanent and Stationary as of April 10, 2001. Dr. Landers bases his opinion on the following: 1. S/P Multiple Low Back Injuries (starting in the 1970's) - requiring limitation of physical activities. 2. Significant bilateral hearing impairment -(which will require a 'hearing aid' evaluation in the future). 3. Chronic dermatitis of the neck, chest, and axillae. Based on the above, it is recommended that Council approve the industrial disability retirement of Gary Wiskus effective December 3, 2000, and that his primary disability condition is orthopedic. No third party liability exists. Neither the City Council of the City of Vernon nor Gary Wiskus has applied to the Workers' Compensation Appeals Board for a determination whether such disability is industrial. JF/fs Enclosures cc: City Attorney Benefit Services f ion ► P.O. Box 2796 Sacramento, CA 95812-2796 (916) 326-3232; (800) 352-2238 CalPERS TDD (916) 326-3240; FAX (916) 658-1280 September 14, 2000 City of Vernon 4305 Santa Fe Ave. Vernon, CA 90058 Dear Personnel Officer: U Reply To: Unit 432 ReferTQ C-1 V 7D246 '00 SEP 27 P 4 :56 CITY (f'; RISK F 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 21154 and 21156, 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 (Government Code Section 21157). Under the California 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 function 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 Government Code Section 21166, by the employer, with respect to the disability for which the member will be retired. If it is determined that the member is not disabled for the performance of his or her 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: The Retirement System will require at least the following documentation: 1. A finding that disability exists. PERS-BAS-175-W (3/96) California Public Employees' Retirement System Lincoln Plaza - 400 P Street - Sacramento, CA 95814 -2- 2a. A finding by your agency as to whether or not the disability is industrial. 2b. 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, last day member is on payroll. In case of a dispute regarding the members effective date of retirement, 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 21164). 4. A statement identifying the type of disability retirement determined, i.e., non- industrial disability retirement or industrial disability retirement. A member must have 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 re -depositing 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 advance 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 Government Code Section 21417: a. Was the disability the result of an injury which was a direct consequence of a violent act perpetrated upon his or her person? b. Did the disability occur during the performance of those portions of his or her duties which are particularly hazardous and dangerous? (For the particularly hazardous and dangerous exception to apply the disability must have occurred during the performance of job duties which had an especially high risk of danger when compared to other duties which were performed. It is not sufficient that the -3- overall job duties were hazardous or dangerous to some degree; the exception pertains to hazards or dangers which stand above or apart from the expected hazards of the job. This exception does not apply simply because a member has an inherently hazardous and dangerous job.) 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 finding by such delegate in each instance. Under the law, if a person (other than the employer) caused an injury that results in certain CalPERS benefits being paid, then CalPERS 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". (Government Code section 20250 et seq.) Accordingly, the Retirement System request 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 CalPERS. We hope the above information is helpful to you. If you have any questions, please call. Sincerely, Emily Sandoval Disability Determination Section Enclosure: Copy of BAS-369D & BAS-183B cc: Gary A. Wiskus Benefit Services Division, P.O. Box 942711, Sacramento, CA 94229-2711 CalPERS Telecommunications Device for the Deaf - (916) 326-3240 - (800) 352-2238 ,i Disability Retirement Election Application ❑ DisabilityRetirement ❑ Industrial Disability Retirement tY ❑ Service Pending Disability Retirement M Service Pending Industrial Disability Retirement - i Important: Local Safety Members Should Not Complete Sections C and D. Section A - Member Information Vi i IS 561-66-72Y6 First Name i Middle Initial Last Name Social Security Number ling Address `' -'Male D Female 0 Date o� firth 7' (i ' - 9(3 4 Gi Home Phone23 State ZIP Country Work Phone Section B - Retirement Information Other Final Compensation Period to Be Used: • From To Other California Public Retirement Systems: U Yes X No If yes, complete the section below. Name of System Date of Retirement Section C Workers' Compensation Information If you filed a Workers' Compensation claim, please provide the following information. Workers' Compensation Carrier Name of Adjuster Telephone Number Mailing Address City State ZIP Claim Number(s) Date of Injury(ies) PERS-BSD-369-D (3/00) page 1 of 6 / Benefit Services Ssion • P.O. Box 2796 Sacramento, CA 95812-2796 0 (916) 326-3232; (800) 352-2238 Reply To: Unit 432 CalPERS TDD - (916) 326-3240; FAX (916) 658-1280 Refer To: 561-60-7246 September 14, 2000 Gary Wisk 18573 S nta Isadora Foun in Valley, CA 92708 Dear Gary Wiskus: 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. Your employer is required to make a determination within six months of this notice unless you waive the requirements of this provision (Government Code Section 21157). Following your employer's finding of substantial incapacity, your retirement cannot be canceled. 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 (Government Code Section 21156). Under the law, if a person (other than your employer) caused an injury that results in certain CalPERS benefits being paid, then CalPERS 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" (Government Code section 20251 et seq.). If you pursue a claim against any person for the same injuries that also entitle you to disability retirement from CalPERS (other than a Workers' Compensation Claim or an uninsured motorist claim) YOU MUST INFORM CALPERS OF THE EXISTENCE OF THIS CLAIM. This is true even if the claim has not yet resulted in a court action. CaIPERS 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 CALPERS, CALPERS MAY ALSO BE ENTITLED TO FILE A LAWSUIT AGAINST YOU FOR RECOVERY OF CALPERS' SUBROGATION RIGHTS. If you entered your safety membership category after January 1, 1980, your industrial disability allowance may 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 to a member whose disability resulted from an injury which was a direct consequence of a violent act PERS-BAS-18313-W (3/96) California Public Employees' Retirement System Lincoln Plaza - 400 P Street - Sacramento, CA 96814 —L^^// • A — s • � perpetrated upon his or her person or occurred during the performance of those portions of his or her duties which are particularly hazardous and dangerous (Government Code Section 21417). For the particularly hazardous and dangerous exception to apply you must show that your disability occurred during the performance of job duties which had an especially high risk of danger when compared to other duties which you performed. It is not sufficient that the overall job duties were hazardous or dangerous to some degree; the exception pertains to hazards or dangers which stand above or apart from the expected hazards of the job. This exception does not apply simply because a member has an inherently hazardous and dangerous job. If you are notified by CalPERS that your disability application has been approved, and upon receipt of a separation document form your employer reflecting your last day on the payroll, the System will calculate and send the optional settlement information. 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. You should be advised that membership in the Retirement System terminates upon the mailing of a warrant refunding contributions, making you ineligible for future benefits unless you return to employment covered by CalPERS Government Code Section 20340). If you have any questions, please contact us. Sincerely, Emily Sandoval Disability Determination Section Enclosure: BAS-175 cc: City of Vernon Attn: Personnel Officer TECHNIMED - VERNON INDUSTRIAL MEDICAL CENTER, INC. 3364 E. SLAUSON AVENUE VERNON, CA. 90058 FAX (323) 584-0059 - TEL (323) 584-7242 DAVID B. LANDERS, MD. • MEDICAL DIRECTOR • APRIL 16, 2001 CONFIDENTIAL MEDICAL REPORT CITY OF VERNON JOAN FRANCONE RISK MANAGEMENT 4305 SANTA FE AVE. VERNON, CA. 90058 IIE W13KUS GARY EMPL, CITY OF VERNON - FIRE FIGHTER ( ) SUBJ SPECIAL EXAMINATION. - R)fSABMLITY BTATUS......... Dear Ms. Francone: MEDICAL HISTORY: Mr. Gary Wiskus is a 55 year old male who has been a City of Vernon employee for 33 years (from 2-1-1968 - 12-3-2000) years. He has most recently served as a Battalion Chief in the City of Vernon Fire Department. I examined Mr. Wiskus in detail on 4-10-2001 for the purpose of determining his present physical examination status and whether or not he could perform the Essential Job Functions of a Firefighter for the City of Vernon. Based upon that interview and examination, I have reached certain medical conclusions. Mr. Wiskus was noted to have the following Medical Diagnoses: - 1. S/P MULTIPLE LOW BACK INJURIES - (STARTING IN THE 1970'S) - REQUIRING LIMITATION OF PHYSICAL ACTIVITIES - 2. SIGNIFICANT BILATERAL HEARING IMPAIRMENT - (WHICH WILL REQUIRE A 'HEARING AID' EVALUATION - IN THE FUTURE) - 3. CHRONIC DERMATITIS OF THE NECK, CHEST, AND AXILLAE. RED WI oWUS, GARY EMPL CITY OF VERNON (FIRE FIGHTER S.UBJ SPECIAL EXAMINATIQ.N - DISAB.�.LITY STATUS WORK STATUS: It is my medical opinion the Mr. Gary Wiskus can not perform the essential job functions of a Firefighter. It is my opinion that no appropriate reasonable accommodation can be made to allow him to do so. He is P & S (Permanent & Stationary) as of 4-10-2001. FUTURE MEDICAL: He will need the provision of medical treatment in the future consisting of ENT / Audiological Evaluations and probable Hearing Aids. RECOMMENDATIONS: Therefore, I would recommend that Mr. Gary Wiskus be retired from the City of Vernon Fire Department. Sincerely, David B. Landers, MD. Medical Director Fellow, ACOEM American College of Occupational & Environmental Medicine Diplomate, American Board of Family Practice QME - Qualified Medical Evaluator 1993-94, State of California • TECHNIMED - VERNON INDUSTRIAL MEDICAL CENTER, INC. 3364 E. SLAUSON AVENUE VERNON, CALIFORNIA 90058 CITY OF VERNON JOAN FRANCONE RISK MANAGEMENT 4305 SANTA FE AVE. VERNON, CA. 90058 • TECHNIMED - VERNON INDUSTRIAL MEDICAL CENTER, INC. 3364 E. SLAUSON AVENUE VERNON, CALIFORNIA 90058 .► t n Oiron, Nelly From: Lehr, Judy Sent: Monday, May 14, 2001 2:06 PM To: Giron, Nelly Subject: Wiskus Disability Nelly, When you send out the letter giving notice to Mr. Wiskus of the Council considering the disability retirement, please give me a copy. Thanks. Judy