PERA-87-001-GB
1-2300-1203-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES RETIREMENT ASSOCIATION
In the Matter of the Proposed FINDINGS OF FACT,
Discontinuation of the Disability CONCLUSIONS AND
Benefits of Robert J. Colombe. RECOMMENDATION
The above-entitled matter was the subject of a. Fact Finding Conference
before George A. Beck, Administrative Law Judge, on Thursday, January 22, 1987
at 9:OO a.m. in the conference room of the Public Employees Retirement
Association, Suite 200, 514 St. Peter Street, in the City of St. Paul,
Minnesota. The record closed on January 29, 1987 upon receipt of written
argument.
Robert Colombe, 4621 West Chicago Street, Chandler, Arizona 8522 6,
appeared, representing himself. Jon K. Murphy, Special Assistant Attorney
General, 90 West Plato Boulevard, St. Paul, Minnesota 55107, appeared,
representing the staff of PERA. Also present was State Representative
Stephen G. Wenzel , 291 State Office Building, St. Paul , Minnesota 55155.
This Report is a Recommendation only, not a final decision. Pursuant to
Minn. Stat. 353.03, the Board of Trustees of the Public Employees Retirement
Association (PERA) will make the final decision in this matter- after a review
of the record. The parties may contact James Hacking, Executive Director,
Public Employees Retirement Association, Suite 200, 514 St. Peter Street, St.
Paul, Minnesota 55102, (612) 296-7460, to inquire about the consideration of
this matter by the Board of Trustees.
STATEMENT OF THE ISSUE
The issue in this case is whether or not the- disability benefits being
paid by PERA to Robert Colombe should be discontinued on the grounds that he
is no longer disabled and physically unfit to perform the duties of -a police
officer.
Based upon the record in this case, the Administrative Law Judge makes the
following:
FINDINGS OF FACT
1. On March 16, 1983, Robert J. Colombe was employed as a police officer
with the City of Spring Lake Park. He had been so employed since
September 11, 1978. Exhibit 3. On March 16, 1983, Officer Colombe was In the
process of chasing and subduing a suspect when he suffered an injury to his
lower- back. As a result of the injury, Mr. Colombe had to resign from the
Spring Lake Park Police Force, effective December 31, 1983. Exhibit 3,
Exhibit A.
2 Mr. Colombe was diagnosed as having a herniated LS-SI intervertebral
disc resulting in a lumbar ridicular syndrome and chronic back pain.
Exhibit 1, Exhibit 4, Exhibit A-1.
3. Mr. Colombe was examined on December 5, 1983 by Dr. Philip H. Haley,
an orthopedic physician in Coon Rapids, who reported to the PERA that Mr.
Colombe was physically unable to perform the duties of-' a police officer as a
result of his injury in March of that year. Exhibit 4. Dr. Haley concluded
that Mr. Colombe had a 15 percent permanent partial disability and should not
be engaged in repetitive bending, lifting, pushing or pulling and that he
should not be lifting objects weighing more than 25 pounds. Exhibit A-1.
4. On March 5, 1984, PERA's medical consultant, Dr. Lundquist, advised
PERA that, based upon Dr. Haley's report, it was his opinion that.Mr. Colombe
was "totally and permanently disabled and as such complies with the provisions
of Minnesota Statutes 353.656, subds. 1, 3 and 5." Exhibit 5.
5. In January of 1984, Mr. Colombe applied to the PERA for disability
benefits. Exhibit 1. In February of 1985, he began receiving a monthly
disability benefit in the amount of $896.83. Exhibit 2.
6. Prior to August of 1985, Mr. Colombe moved to Arizona. He became
employed there as a security officer with Motorola, Inc. where he was required
to man an entry desk and an alarm system, and to walk an assigned route inside
the plant.
7. On August 26, 1985, Mr. Colombe was examined by Dr. Christianson, an
orthopedic physician in Scottsdale, Arizona, who certified to PERA that Mr.
Colombe remained disabled, was unable to serve as a police officer, and had
shown no improvement. Exhibit 6, Exhibit 7.
8. In July of 1985, Mr. Colombe applied to the Arizona Department of
Public Safety for a position as a motor carrier investigator. The State of
Arizona referred him to Medical Support Systems ,Inc. for a medical
examination. Mr. Colombe reported a herniated disc at: L5-S1 to Dr. Evans at
Medical Support Systems, Inc. in Phoenix. An x-ray taken at that time was
interpreted to show "scoliosis with convexity to the left. There is very
slight narrowing of the lumbosacral interspace. Spina Bifida occulta is noted
at S-1 . No other significant osseous or joint abnormalities are seen."
Exhibit 13. Dr. Evans concluded that Mr. Colombe's physical fitness was
excellent and that his physical program should be unrestricted. Exhibit 13.
9. On July 19, 1985, Mr. Colombe's personal physician, Dr. Reinhart in
Mesa, Arizona, submitted a letter in support of his job application which
stated in part that: "It is my opinion Mr. Colombe has had a good recovery
from any back condition that he may have had. I do not find any evidence of
any weakness of the back, and especially I do not find any evidence of any
disc disease . " Dr. Reinhart indicated that Mr. Colombe would be able to
perform the job of motor carrier investigator without restriction. Exhibit 11.
10. In September of 1985, Mr. Colombe was re-evaluated by Medical Support
Systems, Inc. by Dr. Pont at the request of the Arizona Department of Public
Safety, based on information received from Minnesota concerning Mr. Colombe's
back injury. Dr. Pont concluded that there were no significant abnormalities
and that Mr. Colombe was capable of . performing duties described in the job
description for motor carrier investigators. Exhibit 13. Nonetheless, the
-2-
Department of Public Safety decided not to hire Mr. Colombe due to his back
problems.
11 . On October 10, 1985, Dr. Palm, a. medical consultant to PERA, advised
PERA that based upon the report from Dr. Christianson dated Sepember 20,
1985, it was his opinion that Mr. Colombe remained "totally and permanently
disabled " and , therefore, complied with Minnesota Statutes 353.656.
Exhibit 8. PERA advised Mr. Colombe on October 15, 1985 that his disability
benefits would be continued. Exhibit 9.
12. In May of 1986, the Arizona Department of Public Safety forwarded to
PERA the 1985 medical reports by Dr. Pont and Dr. Reinhart. Exhibit 11.
13. On )uly 29, 1986, PERA received a July 15, 1986 report from Dr.
Colson, a physician with Medical Support Systems, Inc. in Phoenix, Arizona.
enclosing the results of Mr. Colombe's physical examination with that office
in 1985. Dr. Colson who is indicated as the acting custodian of records for
the clinic, also completed a medical disability report for PERA which stated
in part that: "Patient reports total resolution of symptoms by the end of
1984. He reported full normal activity with no pain, weakness, numbness,
stiffness, or bowel or bladder difficulty. Careful physical exam was normal
in all ways.'' Exhibit 13. Dr. Colson gave the opinion that Mr. Colombe was
not physically unfit to perform the duties of a police officer, 'since his
condition showed apparent resolution. Dr. Colson did note, however, that the
history of a herniated disc on back injury put him at greater risk for a
re-injury in the future. Exhibit 13.
14. In June of 1986, Dr. Trow, a medical consultant to PERA, advised PERA
that, based upon Dr. Reinhart's report, PERA should schedule a current
examination for Mr. Colombe. He suggested that Mr. Colombe be referred to a
Dr. Johnson in Mesa, Arizona. Exhibit 12. This request was never
communicated to Mr. Colombe and the examination was never made.
15. Cm August In 1986, Dr. Palm, a medical consultant to PERA, advised
PERA that, based upon the July 15, 1986 report of Dr. Colson, it was now his
opinion that Mr. Colombe was no longer disabled. Exhibit 14.
16. On September 2, 1986, PERA advised Mr. Colombe by mail that his
benefits were being discontinued. Mr. Colombe wrote to PERA on September 2.
1986, and advised them that his injury remained and that he was willing to
have additional medical reports from an orthopedic physician. He stated that
the Department of Public Safety medical.exam did not include an examination by
an orthopedic physician or a CAT scan type of x-ray. Exhibit 15.
17. Cm September 15, 1986, Mr. Colombe was examined by Dr. Christianson,
an orthopedic physician in Scottsdale, Arizona, who stated that Mr. Colombe
was physically unfit to perform the duties of a police officer and that Mr.
Colombe will have pain, and disability as a result of the pain, which will
limit his stooping, lifting and bending. The examination included a CAT
scan. Exhibit 16, Exhibit B.
18. On October 27, 1986, Dr. Trow, a medical consultant to PERA, advised
PERA that after examining Dr. Christianson's report dated September 19, 1986,
it was Dr. Trow's opinion that Mr. Colombe did not meet "our standards for
total and permanent disability" and that his application should, therefore, be
denied. Exhibit 20.
13-
19. On October 27, 1986, Mr. Colombe was examined by Dr. Safrin, an
orthopedic physician in Tempe, Arizona. He observed that the x-rays showed
marked disc space narrowing of L5, SI. He stated that Mr. Colombe had a
herniated disc and that his disability remained unchanged, namely 15 percent
permanent partial disability of his back. He suggested that Mr. Colombe
continue working as a security watchman with limitation not to lift over 25
pounds and to do whatever he can within the limitation of pain. Exhibit 22.
20. On November 14, 1986, Dr. Palm a medical consultant to PERA, advised
PERA that it was his 'impression that "This patient has a 15 percent
permanent partial disability of his back. I do not believe that this patient
fulfills the requirements for -total and permanent disability." Dr. Palm had
reviewed the report of Dr. Safrin before writing this letter. Exhibit 23.
21. CM November 14, 1986, PERA advised Mr. Colombe that his 'application
for a continuation of disability benefits was being denied based upon Dr.
Palm's opinion. It stated, however, that it would initiate a hearing so that
Mr. Colombe could appeal this decision. It also agreed to issue Mr. Colombe
disability benefits for the months of September, October and November of
1986. Exhibit A-5. Subsequent to this letter, Mr. Colombe was granted
continuing disability benefits pending the outcome of this proceeding.
22. IV. Colombe is currently employed as a motor, vehicle field officer
for the State of Arizona. His job duties include drivers license testing,
inspection of motor carrier, school bus, and other vehicles entering the
state, and the sale of abandoned vehicles. Exhibit C. Mr. Colombe currently
has a dull toothache type of pain in his back which he has learned to live
with. He does not believe that his condition has changed since he was first
injured. On December 22, 1986, Mr. Colombe suffered a heart attack from which
he is now recovering. Exhibit A.
23. CM June 20, 1986, (A. Palm advised PERA that he felt that he did not
have enough information on the reports that he was receiving from examining
physicians in order to make a determination concerning the relationship
between an accident and an applicant's work for police disability
determinations. Exhibit .25. In a July 18, 1986 memo from Dr. Palm to PERA,
he stated that his communications regarding a worker's disability being
related to employment was merely an opinion based on the reports received and
should in no way be considered a final determination. Exhibit 26.
24. On December 29, 1986, PERA issued a notice of a Fact Finding
Conference regarding the continuation of disability benefits for Robert
Colombe and set the hearing date for January 22 1987. Exhibit 24.
Based upon the foregoing Findings of Fact. the Administrative Law Judge
makes the following:
CONCLUSIONS
1. That the Board of Trustees -and the Administrative Law Judge have
jurisdiction in this matter pursuant to Minn. Stat. 353.03.
2. That PERA gave proper notice of the hearing in this matter and has
fulfilled all relevant substantive and procedural requirements of law or rule.
3. That the PERA member receiving disability benefits has the burden of
-4-
proof to show that he is entitled to the continuation of benefits.
4. Minn. Stat. 353.656, subd. 1. provides as follows:
Any member of the police and fire fund less than 55 years
of age, who shall become disabled and physically unfit to
perform duties as a police officer or firefighter
subsequent to June 30, 1973, as a direct result of an
injury, sickness, or other disability incurred in or
arising out of any act of duty, which shall render the
member physically or mentally unable to perform duties as a
police officer or firefighter, shall receive disability
benefits during the period of such disability.
5. That Robert Colombe has proved by a preponderance of the evidence
that he was disabled in the line of duty and that he is physically unable to
perform the duties of a police officer.
Based upon the foregoing Conclusions, the Administrative Law Judge makes
the following:
RECOMMENDATION
IT IS RESPECTFULLY RECOMMENDED that the Board of Trustees issue an Order
continuing the disability benefits payable to Robert J. Colombe.
Dated: January 29, 1987.
GEORGE A. BECK
Administrative Law Judge
NOTICE
It is requested that the Board of Trustees serve a copy of its find
decision upon the Administrative Law Judge.
Reported: No record made.
MEMORANDUM
PERA's medical advisor made it determination to discontinue Mr. Colombe's
disability benefits based upon two written reports received from Arizona. Dr.
Reinhart, Mr. Colombe's family physician, wrote a letter in support of Mr.
Colombe's application to the Arizona Department of Public Safety in which he
stated that Mr. Colombe had had a good recovery from his back condition. Dr.
Reinhart took no x-rays and made a brief examination. The report was made at
Mr. Colombe's request. Additionally, Dr. Colson apparently summarized notes
in the medical record at Medical Support Systems, Inc. to the effect that Mr.
Colombe's condition showed an apparent resolution. Again, this examination
was in furtherance of It. Colombe's application for employment in Arizona.
The examination was supported by an x-ray but not a CAT scan. Mr. Colombe
denies telling either doctor that he had recovered or that he had no
symptoms.
15-
Based -upon these written reports, PERA's medical advisors concluded that
Mr. Colombe was no longer disabled. These determinations, however. issued by
Dr. Trow and Dr. Palm, cannot be relied upon for their legal conclusions
since each references standards or requirements for "total and permanent
disability." PERA made no further evaluation and simply relied on the
opinions issued by its medical advisors in denying a continuation of
benefits. However, the statute applicable 'to policemen contains no
requirement of total and permanent disability. This is the standard that
applies to PERA members other than police and firefighters. The statute
quoted in the conclusions makes it clear that in order to receive disability
benefits, a policeman must show only that he became disabled as a result of an
injury arising out of his duties as a. police officer and which rendered him
unable to perform duties as a police officer. Dr. Palm noted in his final
determination that it was his impression that Mr. Colombe had a 15 percent
permanent partial disability but not a total and permanent disability.
Even if PERA's medical advisors had applied the -appropriate statutory
language to this case and arrived at the same decision, it must still be
concluded that the medical examinations of Dr. Christianson and Dr. Safrin
should be given more weight than those of Dr. Reinhart or Dr. Colson. The
former are both orthopedic surgeons and their examination was supported by a
CAT scan. Their detailed reports establish that Mr, Colombe continues to have
a 15 percent permanent partial disability, a fact that PERA's medical advisor
does not dispute. They each state that Mr. Colombe's physical condition is
essentially unchanged since his injury. Mr. Colombe himself testified that he
continues to have a dull toothache-type pain at all times which he has learned
to live with. He states that he is able to keep his condition under control
by watching his weight and exercising, but that the situation is unlikely to
ever go away. IN described his condition as a ruptured disc in which the disc
is shattered into several pieces which makes it a difficult situation to
correct by surgery. Mr. Colombe also suffered a heart attack in December of
1 986. It is his opinion that currently no police force would hire him to work
as a police officer.
The record preponderates in favor of a conclusion that Mr. Colombe's
disability has not resolved itself, but continues much as it has in the past
and prevents him from performing the duties of a police officer within the
meaning of the statute.
At the hearing, the question of which party had the burden of proof in a
case where disability benefits are discontinued was discussed. PERA contended
that the burden of proof remained upon the member receiving disability
benefits even though PERA initiated the termination. Mr. Colombe agreed that
he would have at least some burden concerning his medical condition. it
appears that in social security disability cases, the claimant has the burden
of proving that the disability continues where disability benefits have been
terminated. C.J.S., Social Security, 65, p. 119. Because of the similarity
of that program and the PERA disability benefit program, a similar rule would
seem to be appropriate in this case. It should be noted, however, that in
social security cases there is authority for the view that the burden of proof
in termination cases is on the agency to prove that the claimant is able to
work.
G.A.B.
-6-