HomeMy WebLinkAboutMinutes Civil Service Board - 02/22/2007 If
RECEIVED
MINUTES
535TH CIVIL SERVICE BOARD MEETING FEB 1 8 2010
1201 LEOPARD ST.,CITY HALL
HUMAN RESOURCES DEPARTMENT CITY SECRETARY'S OFFICE
February 22 2001
BOARD MEMBERS PRESENT CITY STAFF PRESENT
Jose Moncada,Member Cynthia C.Garcia,Director of
John P.Silvas,Member Human Resources
Eileen Butler,Member Jennifer Knox,Asst. City Attorney
Karen Harling,Sr.H/R Analyst
Danny Ybarra, Water Department
Mary Lou Gallegos,H/R Analyst
Jose Moncada called the 535th Civil Service Board hearing to order at 10:05 a.m.
Item#1 Election of Chairperson and Vice-Chairperson of the Civil Service Board.
Item#2 Review and approve the minutes of the 534th Civil Service Board hearing held
on May 11,2006.
Item#3 Review and consider the termination of Gerardo Vedia, Water Distribution
Technician,Water Department.
Item#4 Discuss proposal to set Civil Service Board hearings monthly.
Mr. Moncada states the first order of business will be the appointment of a new chair.
Mr: Silvas nominates Mr.Moncada,Ms.Butler seconds.Mr.Moncada asks all in favor,
Mr. Sivas and Ms. Butler state"I".
Mr. Moncada nominates Mr. Silvas for the position of Vice-Chairperson,Ms. Butler
seconds.
Ms.Know asks for the invoking of the rule. Mr. Moncada explains what the rule means.
Mr. Moncada asks witnesses not to talk about their testimony while waiting to testify. He
states if they do discuss the case they will have to be excluded as a witness.
Chairperson Moncada swears in the witnesses and asks witnesses to leave the room.
Ms.Knox identifies herself and her position,Asst. City Attorney,and introduces her
client,Danny Ybarra,Asst.Director of Water Operations.
Ms.Knox begins her opening statement:
SCANNED
This case involves city policy HR 32.0 entitled Limited Duty Assignment and
Reasonable Accommodations.This city's Limited Duty program is designed to
) temporarily utilize employees to perform limited duty work while recovering from
injuries or occupational illnesses that arise out of and in the course of employment or off
the job injuries/illnesses which prevent full participation at work.The City's Limited
Duty Policy provides that an employee will be recommended for termination if he/she
has not returned to any type of work even limited duty with or without an
accommodation within 9 consecutive months beginning the first day the employee was
referred to the disability review coordinator or has been in the limited duty pool months
and has not been placed in an alternate regular duty job during an additional 90 day
period. Gerardo Vedia was working as a water distribution technician in the water
department. On 01/31/06,Mr.Vedia was lifting 80 lbs bags of concrete when he felt a
sharp pain like a pulled muscle in hisright shoulder.In February 2006,Mr.Vedia came
under the City's Limited Duty Policy because he was released to limited duty with
restrictions.Mr.Vedia was given a 6 month limited duty assignment period.At the time
Mr:Vedia exhausted his 6 month limited duty assignment period which was August 24,
2006 he had not secured alternate job placement and was not released to return to his
regular duty position. Following the 6 month limited duty assignment period Mr.Vedia
was given a 90 day period at home which expired on 11/24/06. Mr.Vedia did qualify for
leave under the Family Medical Leave Act in 2006 which ran concurrently with the 90
day period at home.Prior to 11/24/06,Mr. Vediawas advised multiple times by the
Human Resources Department when his time would expire under the City's Limited Duty
Policy. On 11/16/06 Mr.Vedia saw the City's designated physician for a fitness for duty
medical evaluation.Neither Mr. Vedia's treating physician nor the City's designated
physician has released Mr.Vedia to full duty with or without an accommodation.
Therefore,on 11/24/06,Mr.Vedia exhausted his time under the City's Limited Duty
Policy.Due to the fact that Mr.Vedia was unable to comply with the City's Limited Duty
Policy because he was not released to work during the allotted time and the City was
unable to place him in an alternate position that he can perform with or without an
accommodation the termination is justified and should be upheld. Thank You.
Mr.Vedia's attorney,Charles Smith:
It is our contention that this case is based on your interpretation of whether or not the city
at the time of its notice to my client that he was terminated that the City had in fact failed
to comply with the subject policy that is in question. I think there will be testimony you
will hear today that will set out what the City's responsibilities are that the sole
responsibility to comply with the policy does not fall totally upon my client but the City
has an act of participation in that matter. It failed to carry out its burden.It has certain
responsibilities that the evidence will show that had they followed through and taken care
of their responsibilities my client would not have been subjected to the termination for
which he now seeks your efforts to have overturned,have him reinstated and
appropriately compensated.
City witness#1—Cynthia Papageorge called and states her business address as 1201
Leopard,City of Corpus Christi.Has worked for the City of Corpus Christi since August
1993. Current position held is Human Resources Analyst as well as DRC(Disability
A
•Review Committee)Coordinator. Has held that position since June 2004,however has as
total of 9 years experience as the ARC Coordinator.Primary responsibilities as the DRC
Coordinator are to oversee the Family Medical Leave Act Policy and the Reasonable
Accommodation and Limited Duty Policy. States she worked on Mr.Vedia's file which
placed him on the Limited Duty Policy on 02/24/06. States she is the designated city wide
coordinator for the City's Limit Duty Policy.
City Exhibit#1 —Copy of the City's current Limited Duty Assignment and Reasonable
Accommodation Policy.Ms.Papageorge is asked to summarize the policy and does so.
Ms.Knox offers exhibit into evidence. Accepted.
Ms.Knox:Ms.Papageorge please explain how the policy was administered specifically
in Mr.Vedia's case. She explains Laura Gallegos was the first person who met with Mr.
Vedia who and gave him a copy of the Limited Duty Memo and the policy and had him
sign a medical authorization form.Mr.Vedia was placed in a temporary limited duty
assignment at the Water Dept.,his own department. He was in the limited duty
assignment for the entire 6 months.After that,Ms.Papageorge met with him and gave
him the memo stating he was now on the 90 day no work part of the limited duty policy.
Ms.Knox asks Ms.Papageorge if Mr.Vedia violated the City's Limited Duty Policy.
Ms.Papageorge states he violated it in the sense that the policy states a violation of the
policy is if you don't get back to work within the nine months,which Mr.Vedia did not.
Ms.Knox asks Ms.Papageorge to point out where in the policy it states how long an
employee may serve in a limited duty assignment(6 months)which Ms.Papageorge
answers on page 2.After the 6 months were exhausted,Ms. Papageorge met with Mr.
Vedia concerning his going out on the 90 day no work status. During the 90 day no work
period,Ms. Papageorge stated she continues working with the 311 party administrator and
assigns a vocational consultant in the case at that point.It was still unclear if he would be
able to return to his job,but the voc consultant on Mr.Vedia's case in case we needed to
be looking for something else for him and we started looking for something else for him.
In pursuant to the policy when will an employee be recommended for termination once
he/she has exhausted all the time under the Limited Duty Policy which is 9 months,
which is stated in the policy. Ms. Knox asks Ms.Papageorge to point out where in the
policy it is stated,Ms.Papageorge states page 6,#9.Ms.Knox asks Ms.Papageorge if
Mr.Vedia qualified for the Family Medical Leave Act,Ms.Papageorge states he did.She
states the eligibility to qualify for FMLA and states it runs at the same time as the 90 day
no work status.Viola Lopez' office was the vocational consultant assigned to Mr.
Vedia's case to provide vocational rehabilitation services. Mr.Vedia's case was also
assigned to medical case management.Ann Jaime's office was assigned to Mr.Vedia's
case.Mr.Vedia was a water distribution technician,which Ms.Papageorge stated was a
labor intensive position.Ms. Papageorge was asked if Mr.Vedia had applied for any
other jobs,which she stated he had. Some of the positions he applied for were: street
inventory position,13&G custodian,gardener, in brush collection which is Solid Waste
Services,and at the Airport.Ms. Papageorge states she did not make copies of all the
positions Mr.Vedia applied for because all she has to do is look at it online to see if there
could be a match and then pull a job description. Ms.Papageorge stated Viola Lopez
viewed the job descriptions which were considered labor intensive positions. Ms.Knox
asked Ms.Papageorge if labor intensive positions were appropriate for Mr. Vedia,in
which she responded"Not with a 10 lb restriction."Ms.Papageorge stated she and Viola
looked at the job vacancies on line which started back in July. Ms. Knox asked Ms.
Papageorge according to City exhibit#1,how long do effort to reasonable accommodate
and or alternately assign last?Ms.Papageorge stated the 90 day reasonable
accommodation period after the 6 months,but it would be the whole time frame if we
knew upfront that someone was never going back,but a doctor has to state that.We look
as long as their time under the policy and we look longer if they appeal. We keep the
process up through the appeal and are still looking for Mr.Vedia. Mr. Vedia is still an
employee of the City and still has health care benefits due to his appeal. Ms.Papageorge
stated the last time she looked for a job for Mr. Vedia was the day before yesterday(Tues
morning)when she looked at the job line.
City Exhibit#2—Limited Duty and Reasonable Accommodation Memo prepared by
Laura Gallegos for Gerardo Vedia which he signed. •
Ms.Knox offers exhibit into evidence. Accepted.
City exhibit#2 informs Mr.Vedia that he has been released to limited duty with
restrictions as well as informs him when his time will expire which is 08/24/06 Attorney
Charles Smith objects to the line of questioning.He states the questioning is leading and
•that the document speaks for itself. States the witness can identify what is in the
document(City Exhibit#2)but for council to lead the witness is inappropriate.Ms. Knox
asks Ms. Papageorge to identify what else is in the document.Ms.Papageorge states the
document informs Mr.Vedia about the 90 days period follows at home,if it is medically
determined he cannot go back to his job with or without an accommodation the city will
look for other vacant position for him.It asks him to apply for positions higher than his
current grade level for which he feels is qualified.Vocational/Medical rehabilitation
consultants would be assigned to him,tuition for GED which did not apply to him and
basically a quick outline for the policy that they are being given.
City Exhibit#3—90 Day No Work At Home Memo prepared by Ms. Papageorge on
August 22,2006 for Gerardo Vedia which he signed.
Ms. Knox offers exhibit into evidence.Accepted.
Ms. Papageorge explains this is a standard document used by the Human Resources
Department when an employee comes under the City's Limited Duty Policy and the 6
month limited duty time frame is about to expire with the employee not being released to
full duty with or without accommodations. It explains to the employee that during the 90
day no work time frame the department is still working with the employee to assist them
in returning to work.
City Exhibit#4—Final Fitness for Duty Letter,prepared by Ms.Papageoge on 11/13/06.
Ms.Knox offers exhibit into evidence. Accepted.
•
Ms. Papageorge explains this as standard document used by the Human Resources
Department when after the 90 day no work at home period an employee is still not
released back to work a fmal fitness for duty letter is prepared and issued to the
employee. They are sent to Concentra for a final fitness for duty.They are asked to bring
anything they have from their doctor.Basically this sends them through the fmal time at
the end of 9 months to see if anything has changed that allows them to come back to their
position.
Ms. Knox asks Ms. Papageorge if Mr.Vedia received this document due to his signature
not appearing on it.Ms. Papageorge states yes he did because a copy of the certified card
is behind it. According to exhibit#4,Mr.Vedia was set to see the city designated
physician on 11/16/06.The outcome of that visit was that Mr.Vedia was released back to
work with restrictions that kept him from being able to perform the essential functions of
his position.He was not released by the City's designated physician to his regular duty
position with or without accommodations before his time expired under the City's Limit
Duty Policy,nor did Mr. Vedia's treating physician Dr. Whitenburg.At the time Mr.
Vedia exhausted his 6 month limited duty assignment period and 90 days at home period •
his treating physician still had him on restrictions.At the time of termination on'12/7/06
Mr.Vedia's restrictions according to his treating physician were 10 lb restriction limited
to 2 hours a day,no overhead reaching,no flexion and no abduction all of the right arm.
Mr.Vedia exhausted his time under the City's Limited Duty Policy as of 11/24/06.Ms.
Knox passes the witness.
Mr. Smith asks Ms. Papageorge if as Disability Review Coordinator does her
responsibilities include responsibilities to administer the policy that is the subject to this
particular proceeding. Ms.Papageorge responds with yes. Mr. Smith asks if her
responsibilities consistent with the policy require Ms.Papageorge to monitor the limited
duty status of the employees under the policy. Ms. Papageorge agrees.Mr. Smith asks if
part of her responsibilities consistent with the job of a disability review coordinator is to
identify available limited duty assignments,Ms.Papageorge agrees.Mr. Smith continues:
to identify the available limited duty assignments that would include assignments in the
employees department as well as assignments or availabilities that are available in other
departments,Ms.Papageorge agrees.Mr. Smith asks Ms.Papageorge if part of her
responsibilities are to report or status or keep informed a disability review committee?
Ms.Papageorge agrees.In connection with Mr.Vedia's limited duty status,Mr. Smith
asks Ms.Papageorge how many report did you make to the disability review committee.
Ms.Papageorge states two times,maybe three,but keep in mind I am constantly through
everyone's file and communicating with Dr. Racette,Cynthia Garcia our Human
Resources Director concerning the employee's case.Mr. Smith asks Ms.Papageorge
when she first made a report to the disability review committee.Ms.Papageorge looks
through her paperwork...states she believes May 18th,but would have to go look to make
sure.Mr.Smith asks as of 05/18/06 had Mr.Vedia been seen by Dr. Racette.Ms.
Papageorge states he had.Mr. Smith asks if Ms. Papageorge had personally spoken to Dr.
Racette about Mr.Vedia's limitations and his physical situation.Ms.Papageorge states
yes. Mr. Smith asks Ms. Papageorge if Dr.Racette at any time inform her of what
progress if any he saw potential on Mr.Vedia to return to work.Ms.Papageorge states in
one conversation she had with Dr.Racette he felt that if he had the 2 surgeries chances
were good that he could return to work. But of course before surgery no one really knows
what's going to happen. Mr. Smith asked if Dr.Racette described to her if Mr.Vedia's
condition with his right shoulder was a product of a pinched nerve. Ms.Papageorge
stated Dr. Racette had a suggestion that it might be,but she was going to gather all the
medical information and discuss it at the next DRC meeting.Mr.Smith asks when was
the next time Ms.Papageorge spoke to the DRC committee after 05/18/06 about Mr.
Vedia. Ms.Papageorge states for sure November 30,2006 and she would have to check if
there was something in between.Mr. Smith asks Ms.Papageorge if prior to 11/30/06 had
she spoken to Mr.Vedia's personal physician in which she stated no. He continued by
asking if Ms.Papageorge if she had access to information being she was the Disability
Review Coordinator,which she stated she does. Mr. Smith states employees sign
documents which give her access to that information,she agreed. Mr. Smith then asks if
Ms.Papageorge had the opportunity to call and talk with Mr.Vedia's personal physician.
Ms.Papageorge stated she would have had the opportunity to call his physician,but
stated doctors don't generally speak to her.Mr. Smith asks Ms.Papageorge that she
wasn't representing today in front of the committee that you attempted to speak with Mr.
Vedia's personal physician and he did not want to speak with you. Ms.Papageorge
stated she had not.Mr. Smith continues by asking if she had ever reviewed any
correspondences prepared by Dr:Whitenburg about the condition of Mr.Vedia,which
Ms.Papageorge stated she had reviewed everything she was sent. He continues by
asking from those correspondence that she received in writing did Dr. Whitenburg
indicate what limitation if any he had placed on Mr.Vedia's ability to return to work.Ms.
Papageorge states on the twick form usually states every time an employee goes through
a visit,what the restrictions are.Mr.Smith asks with regard what your responsibilities are
to monitor the availability of limited duty assignments for employees such as Mr. Vedia,
did you look at particular jobs he applied for.Ms. Papageorge stated yes.Mr. Smith
continues if he was qualified to perform the jobs he applied for.Ms.Papageorge stated
no.Mr. Smith states with regard to the initial job you referred to as the street inventory
inspector that was one of the jobs that Mr.Vedia applied for wasn't it?Ms.Papageorge
agrees and Mr. Smith asks why it was determined that Mr.Vedia was not able to assume
the duties as the street inventory inspector. Ms.Papageorge explains because of the
physical.The position is categorized as a light duty position that requires 20 lbs;Mr.
Vedia's restrictions put him in sedentary type work.Light duty is 20 lbs. Mr. Smith asks
what aspect of that position says the person has to be able to lift 20 lbs.Ms. Papageorge
responds the job description itself. Overall physical strength demands,the choices are
sedentary,light,medium,heavy,and very heavy.Light is checked off.Mr. Smith:Light
being checked off,does that indicate the amount of pounds an individual might be
expected to pick up. Ms.Papageorge states 20 lbs.Mr. Smith: What did you know about
Mr.Vedia at the time he applied for the position that he was not able to lift 20 lbs.Ms.
Papageorge responds that his restrictions was 10 lbs.Mr. Smith: You had received in
access to a letter prepared by Dr.Whitenburg that Mr.Vedia had a limitation with regard
to his right arm,Ms.Papageorge agrees.Mr. Smith continues,in fact all the restrictions
that you are aware of as they relate to him involve his right arm correct,Ms. Papageorge
agrees.Mr. Smith: You have no information and you are not representing today that he
could not have lifted 20-lbs with his left ann.Ms. Papageorge states correct,I have no
information. Mr. Smith:And you are not representing today that he would not have been
able to perform the duties as a street inventory inspector by his using his left are. Ms.
Papageorge responds she is in the sense that I don't make that final decision,the city
physician and the vocational consultant do and they both looked at it and said based on
the 10 lb restriction to the right arm he is not able to that job.Mr. Smith:He was not
given an opportunity to see if he could perform that job,Ms. Papageorge responds by
stating no,not if he didn't qualify initially.Mr. Smith: The qualifications don't make a
specific limitation as written by the city that a person has to be able to use both arms does
it?Ms Papageorge: The vocational consultant looks at that when she looks at the job by
virtue of the job this person in that position would have to have been able to use both
hands. Both the city physician and the vocational person are looking at that.Mr. Smith:
He can use both hands,can he not?Ms.Papageorge:Not with equal strength,but I
understand that he can.Mr. Smith: And the restriction is about lifting as it relates to his
right arm,isn't that correct.Ms.Papageorge responds: Well and anything that has to deal
with putting his arm out straight and working something or putting it to the side and work
with something.Mr. Smith:As to each of those items whether lifting,putting his arm
straight out,putting it to the side you cannot represent to us today that he could not have
discharged his responsibilities using his left arm,can you.Ms. Papageorge: I can because
and again I am not the vocational consultant,those people who were asked to review this
for the appropriateness of could Mr.Vedia do this job or not,both said no. Mr. Smith:did
they tell you whether or not his inability to do that job was because he would only be able
to use his left arm.Ms.Papageorge:Do you want me to read Dr.Racette's email on this
when I asked him to take a look at this?Mr. Smith:That's hearsay. What I am asking you
is what you personally did in your capacity as the disability review coordinator,did you
personally check to see if he could have performed those duties using his left arm?Ms.
Papageorge:Dr.Racette's email addresses the 20 lbs,the 10 lbs,and the one handed
thing.Do you want to know about that?OK,then that is what I go by. Mr. Smith:But
you didn't personally do anything to observe individual performing that task to see if it
could be done using the left hand or left arm.Ms.Papageorge replies no. Mr. Smith:Did
you ever talk to Mr.Vedia himself to see whether or not he could perform those duties
using his left arm.Ms Papageorge responds no.Mr. Smith: With regard to the refuge
collector labor position,he also applied for the trade's helper another labor position,is
that correct.Ms.Papageorge agrees.Mr. Smith continues: Were you able to learn
whether or not the duties connected with that would have prevented Mr.Vedia from
performing those jobs.Ms.Papageorge: Yes they would have. Mr. Smith:Now with
regards to the trade's helper,what are the duties and responsibilities of that job?Ms.
Papageorge: They are specialized by departments,but generally they are heavy duty and I
believe up to 50 lbs.But again these are positions we asked the vocational consultant to
look at them and they were above Mr.Vedia's restrictions. Mr. Smith: The particular jobs
he applied for as well as the street inspector,trade's helper and the brush collector he also
applied for waste water collection tech position didn't he? Ms.Papageorge: I looked at
all the jobs he applied for,I don't have them all memorized.Mr. Smith: What about that
particular job could Mr.Vedia not perform based upon the restrictions that were then in
place.Ms. Papageorge: That job and all the jobs he applied for were above the 10 lbs,
most of them way above the 10 lbs.Mr. Smith: But no determination was made if he
could not have discharged the responsibilities using his left hand/arm.Ms. Papageorge:
Well yeah,when the vocational consultant looks at it, she looks at it with an eye for
everything and she said no to those positions. Mr. Smith:No to him using his left hand to
perform the duties?Ms.Papageorge:No,those positions would not require someone
being able to use both hands again with the 10 lbs restriction.Mr. Smith:But specifically
they did not give you information that he could not perform the jobs restricted only to his
left hand/arm did you?Ms.Papageorge: Yes, she would have communicated with me
saying I've looked at that job he's interested in and applied for but this is not a match.
Mr. Smith: You don't have anything in writing that would substantiate you having
received information that Mr. Vedia would not have been able to perform the duties as a
wastewater collection tech using only his left arm to perform duties where he would be
required to lift 10 lbs or more.Ms.Papageorge:In her report she would mention
sometimes it was a verbal thing because we would check on each and every job he
applied for, she would look at if to see if he could perform it and then in reports she
would give us she would state I reviewed this job and that job and no they are not
appropriate for him.Mr. Smith: She did not say it was not appropriate because he could
only be limited to using his left arm to do the job,did she. Ms.Papageorge: When sheds
looking at the restrictions she is looking at everything,so when she says no this person
cannot do the job it is whether the employee can use two hands to do it or one. She knows
what the restrictions are,what his limitations are and when she says no they can't do it,
it's no they can't do it,be it with one arm or two.Mr. Smith:He also applied for
custodial work.Ms. Papageorge: I believe so.Mr. Smith: And what about the
duties/responsibilities of that position was Mr.Vedia not able to perform if he had
limitations on his right arm but none on his left ann.Ms.Papageorge: Custodial positions
are not extremely labor intensive they are labor intensive,they are filling heavy buckets
with water,they are mopping,constantly,sweeping,vacuuming,they are lifting the big
bags of trash taking them out to the dumpster at whatever location. It requires a little
labor intensive work there. Mr. Smith: Do you have any specific personal knowledge to
know whether or not Mr.Vedic could not have used the vacuum cleaner with his left arm
to discharge the responsibilities as a custodial worker for the City of Corpus Christi. Ms.
Papageorge: Well I discussed it with the vocational consultant and we talked about all the
duties and all the things they would need to be able to do and there were many duties that
were thought would not be able to do with one arm.Mr. Smith: Which duties did you
find about concerning the custodial worker that Mr.Vedia could not have performed
using his left arm to lift things but has some use of his right arm if it was not required to
lift.Ms. Papageorge: The job descriptions,we would pull the job descriptions,a
vocational consultant would look at those and I would look at those.Based on what the
job description said and our knowledge of those jobs the decision was made on those. Mr.
Smith: Can you tell us today with regard to Mr.Vedia's limitations what specifically as a
custodial he would not have been able to do based on his restrictions.Ms. Papageorge:
There are heavy bags of trash departments have that need to be able to be carried out to
the dumpster,they need to be able to put them in the dumpster,the vacuum cleaner,the
equipment they use industrial are pretty heavy,chemicals they are using,lots of those
things are pretty heavy.Mr. Smith:What is heavy may be heavy to you but not to
someone else.Ms. Papageorge responds more than 10 lbs. We depend on the
professionals we hire to tell us no this doesn't look like a good match because those
things are heavier, she does job analysis on these sometimes, so it was determined that it
was too heavy.Mr. Smith: So there is no practical side knowing whether or not someone
can do a job is simply a theoretical analysis,is that what you are telling me?Ms.
Papageorge:No,I am saying with a 10 lb restriction you can't do a B&G custodian and
you're telling me with one arm,no,you can't. It sounds like this person just dusts the
desks or sweeps but there are some pretty heavy duty things they do.Just the equipment
alone is heavy.Mr. Smith: With the best information be to put Mr. Vedia on the job for a
day and let him go through a routine to see in fact if he could do it. Ms.Papageorge: We
do trial periods but not if it would exceed that employees restrictions. We are just putting
them in harms way to be injured further.Mr. Smith:It is your testimony that Mr.Vedia
could not appreciate the restrictions and simply limit his activities to use that part of his
body that would not cause his further harm in the discharge of his duties. Ms.
Papageorge:I don't know.Mr. Smith:You don't know,but yet you are going to tell this
committee that he was not qualified to do the job and there was no personal opportunity
given to him to actually carry out and do the job. Ms. Papageorge:I am going to tell the
committee the job exceeded the restrictions he had. Mr.Smith:But when you say
exceeded you are talking about his use of his right arm.Ms. Papageorge:The 10 lbs to
the right arm,yes.Mr. Smith:But you are not telling him he could not have performed
the duty using his left arm.Ms.Papageorge:I am saying yes he could not have done it
because that is what the professionals told us and seeing and watching through the years
what B&G custodial workers do that makes sense.Mr. Smith: Did you every talk to Mr.
Vedia about why he would not be able to perform the duties as a custodian with the City
of Corpus Christi. Ms. Papageorge: We talked about some positions,I don't know if we
talked about that one.Mr. Smith: Did you talk to him about the wastewater collection
tech position with the city.Ms.Papageorge: I don't know,I don't think we talked about
that one and he was always told to be sure and call me if he sees anything online that he
wants to apply for that he thinks he may be interested in that I could get more information
on.Mr. Smith:In fact,he took the initiative and looked at the positions on line and did in
fact inform you about what he thought he could do,did he. Ms.Papageorge: We talked
about a couple of jobs;I don't remember which jobs they were.He didn't call me on all
these latest ones he's applied for,no.Mr. Smith: Did you at any time talk with Dr.
Racette as well as the other members of the committee about whether or not the advice
you had received from the rehab specialist may not be appropriate as it relates to Mr.
Vedia. Ms. Papageorge:I spoke to Dr.Racette about the case.The employee has a real
concern the limitations,surgery;yes I did speak to him.Mr. Smith: Dr.Racette,did he
give you any sense to know that Mr. Vedia could perform as an employee if he were to
be careful about recognizing his limitations.Ms.Papageorge:Through the months we
had many conversations,we talked about his restrictions,we did have a conversation
about the employee was being very limited as far as looking for jobs because of the 10
lbs restriction to the right side imposed by his physician we discussed his medical.
Mr.Smith:When Mr.Vedia applied for the positions on-line,you got an opportunity to
view those because you can go to the internet and pull that information up. Ms.
Papageorge: That is correct.They give you a little information concerning the job and
then they were in contact with Viola's office concerning the positions he was interested
in.Mr. Smith: The information available on line does not provide you with any specific
information that would suggest to Mr.Vedia that he would not be able to perform those
duties based upon his limitations.Ms.Papageorge:No it doesn't.Mr. Smith: In fact,that
would be something you would need to pull up with the specific job descriptions and
point out where the limitations my impact his ability to perform the job. Ms.Papageorge:
Yes.Mr. Smith: But with the jobs he applied for you never sat him down and point out
where in the job description he could not perform based on his limitations set by his
doctor?Ms.Papageorge:No,Viola's office did because he was in contact with them. Mr.
Smith passes the witness.
Ms.Knox: I just want some clarification;you don't just work on the files during the
meetings with the DRC committee do you?Ms Papageorge:No,we work the files the
entire time as long as someone is being covered under the policy.Ms. Knox: So you had
conversations with Viola and Dr.Racette outside the DRC meetings. Ms.Papageorge:
Yes,all the time.Pass the witness.
Mr. Smith: I have no further questions for this witness.
Ms.Knox reserves Ms.Papageorge on rebuttal.
City witness#2—Dr. Guy J.Racette,4025 SPID,Corpus Christi and is licensed to
practice medicine in the state of Texas.Received license in 1988 from the University of
Montreal.Is a member in good standing of the Texas State Board of Medical Examiners.
Texas Medical License#:Texas H5040.
Ms.Knox asks Dr.Racette if Concentra Medical Center was the city's designated
medical provider.Dr. Racette responds,yes.Ms.Knox:Do you work at Concentra
Medical Center,Dr.Racette responds,yes.Ms. Knox:What are your specialties?Dr.
Racette:Board certification is in family practice and my practicum has been for the last
18 years has been limited to occupational medicine and industrial medicine for a large
employer across the bay. Ms.Knox:Are you the designated physician for the City of
Corpus Christi,Dr. Racette responds yes for about 10 yrs.Ms.Knox:What are your
primary responsibilities as the city's designated physician: Dr.Racette: To review and
endorse recommendations when people from the city are given restrictions,taking off
work,resuming work,going off of restrictions or adjustments to those restrictions;I
evaluate the individual for the appropriateness of the recommendations and write
instructions to H/R dept.to try to clarify and specify due to often doctors stating light
duty without saying anything further as to what light is and one of my functions is to
clarify that with the injured workers or if necessary by calling the treating physician to
get those kinds of clarifications. Ms.Knox:Are you familiar with the medical services
provided to Mr. Vedia in 2006?Dr.Racette:From approximately the time of the initial
onset of symptoms and up until the month of May,in addition to that function as the City
of Corpus Christi's designated physician I was Mr.Vedia's choice as treating provider.
Ms.Knox:And as some point did your role as treating provider end?Dr. Racette: Yes,
Mr.Vedia no longer kept up his attendance to follow up appointments and as I later
learned was getting treatment elsewhere.Ms.Knox:Could please briefly summarize the
medical services you provided to Mr.Vedia as his treating physician?Dr.Racette: Yes,
this was the most challenging case. On his initial evaluation there was a specific
complaint about the pain which was associated with a balling or mass effect in the right
biceps area which Dr. Cullen initially evaluated and suspected to be a biceps tear. This
initial diagnosis subsequently resolved without further evidence of problems but through
the course of investigation over several weeks different tests were done different imaging
studies were obtained demonstrating that pathology in question was not that simple.
Treatment including physical therapies were initiated and with very poor success,anti-
flamitory medications,muscle relaxants that sort of thing was prescribed initially until a
re-evaluation proved to be necessary and we needed to step back and rethink our strategy
since things were not going as they normally do. We expanded the diagnostic
investigation to several.different areas and found problems in those different areas. Ms.
Knox: Could you summarize what services you provided as the city's designated
physician to Mr. Vedia.Dr.Racette: As treating physician Lam both the one determining
the restrictions and endorsing them.Ms.Knox:After you found out Mr.Vedia was
receiving treatment elsewhere did you continue to have to see Mr.Vedia as the city's
designated physician?Dr.Racette: Probably,but I have no specific recollection of how
much follow up we have done and how many visit occurred after the final visit as treating
doctor. Ms Knox: As the city's designated physician did you review the treating
physician's record?Dr.Racette:From time to time without any specific recollection of
what the recommendations were and how they were endorsed or approved.That
information can be located I just don't have it off the top of my head. Ms. Knox:As the
city's designated physician,did you perform the fitness for duty medical evaluation on
Mr.Vedia?Dr Racette: Yes.Ms.Knox:Was Dr.Whitenburg Mr.Vedia's treating
physician?Dr. Racette:I believe so. Ms.Knox:Did Dr.Whitenburg assign restrictions to
Mr.Vedia?Dr.Racette:As I recall he had him off work for a period of time,I would
have to go back and look at my records,but I don't believe Dr.Whitenburg wanted Mr.
Vedia to do anything.
City exhibit#5 -Letter signed by Dr.Whitenburg specifying Mr.Vedia's restrictions,
dated November 16,2006.
Ms.Knox offers exhibit#5 into evidence.Accepted.
} Ms.Knox:According to city exhibit#5 what are Mr. Vedia's limitations?Dr. Racette:
There is no lifting over 10 lbs,no overhead reaching,no flexion straight and front with
the right arm and no abduction straight out to the side with the right arm.Ms.Knox: Can
you determine from city exhibit#5 whether or not Mr.Vedia has use of both arms.Dr.
Racette:He has no restrictions on the left arm,the final lines in Doctor's letter indicate
his grip, stamina,and his abilities to walk and move are no way hindered but he has
specified some clear limitations all pertaining to the right arm.Ms.Knox: Did you refer
to city exhibit#5 when you performed the fitness for duty medical evaluation on Mr.
Vedia.Dr.Racette:Presumably,I don't have that information off the top of my head,but
yes that would be no doubt my standard practice.Ms.Knox: Did city exhibit#5 give
enough latitude to get Mr.Vedia back to his regular job as a water distribution
technician?Dr.Racette: That is where the problem we had some functional limitations
• that directly affected his ability to carry out the essential functions of that job description.
Ms.Knox:Did you review the job description for the water distribution technician?Dr.
Racette:Yes.Ms.Knox: Was a status report generated when you met with Mr. Vedia for
his fitness for duty medical evaluation on 11/16/06?Dr.Racette: Presumably.
City exhibit#6—Generated form from Dr. Center to clarify for employers the work status
with as much detail as necessary which pertains to Mr. Vedia.
Ms.Knox offers exhibit#6 into evidence. Accepted.
}
Ms.Knox:Does city exhibit#6 document Mr.Vedia's medical status?Dr. Racette: It
does. Ms. Knox: What were the results of Mr.Vedia's fitness for duties medical
evaluation?Dr. Racette: Restricted activity which is in effect until the next physician
visit.Returning to work on this day 11/16/06 with the following restrictions:No lifting
over 10 lbs,no pushing or pulling over 25 lbs of force and under remarks with no
overhead reaching with right arm,no lifting over 10 lbs with right arm,no pushing or
pulling maximum 2 hrs per day,no ladders. With hyphen,unable to perform essential
functions as a water distribution tech. Ms. Knox:As of Nov. 16,2006 was Mr.Vedia
release to full duty to resume his regular job duties?Dr.Racette:No. Pass the witness.
Mr. Smith:Dr.Racette when you prepared Mr.Vedia's work status report listed as city
exhibit#6 when was the last time you had seen Mr.Vedia.Dr.Racette: That day.Mr.
Smith: Did you conduct an examination of him on that day. Dr.Racette:Not necessarily,
I don't recall specifically if I did or did not.Mr. Smith: Can you represent to the
committee today whether or not on November 16,2006 if you had Mr.Vedia undergo
any tests.Dr. Racette: I did not.Mr. Smith:Prior to the preparation of city exhibit#6 you
had previously received or had an opportunity to review the subject matter contained in
city exhibit#5 prepared by Dr. Whitenburg.Dr. Racette:It would probably have been
brought in Mr.Vedia on that day.Mr. Smith: In the Nov..16,2006 letter from Dr.
Whitenburg that you believe perhaps Mr.Vedia brought in to you during his visit,did
you review that letter?Dr.Racette: Yes. Mr. Smith: Was there anything in that letter that
you thought was inappropriate or would not be suitable for Mr.Vedia.Dr. Racette: Lets'
review.No I don't believe so.Mr. Smith: You testified previously in the last paragraph
you seemed to read his grip is not limited by the restrictions that Dr. Whitenburg had
observed or determined. Dr.Racette:Pertaining to the left arm.The assumption is
because of the limitations above on the right arm he's stating his grip is not affected but
clearly it is with the 10 lbs lifting recommendation. Mr. Smith: Lifting and gripping are 2
different things.Dr.Racette:Depends how you define grip,but if he is saying and it is
my belief Mr.Vedia probably has grip which is a forearm function may have normal
strength in that capacity:however,whenever you attaching that grip to something in
excess to 10 lbs according to Dr.Whitenburg's estimations he would be unable to
manage a weight of such. So however much or little emphasis you want to put on the
word grip there are no limitations specified here that pertain to the rest of his body but his
right arm is certainly affected by his condition.Mr. Smith:And from this letter if at all
his grip in his right arm may be affected to some degree.Dr.Racette: I would think it
might be. Mr.Smith: His stamina as well?Dr.Racette: Well that is where Dr.
Whitenburg specifically says it is not.Mr. Smith:It specifically talks about the ability to
walk and move about. Dr. Racetee: Should not be hindered according to Dr.Whitenburg.
Mr. Smith: When you prepared and submitted your physician activity status report you
indicated that there was no repetitive lifting over 10 lbs,now was that to include his left
arm?Dr.Racette: Yes,the recommendation is no lifting over 10 lbs comes from Dr.
Whitenburg. Mr. Smith:But I believe did you not say that referred to his right arm?Dr.
Racette:Right.Mr. Smith:When you examined or say Mr.Vedia on the 16th you didn't
see any need to see restrict lifting with his left arm did you?Dr.Racette:No, sir.Mr.
Smith: You didn't see any need to restrict any pushing or pulling on the left arm did you?
Dr.Racette:No.Mr. Smith: So far as you understood you thought the restrictions should
) apply to Mr.Vedia's right arm?Dr.Racette: Correct.Mr. Smith:The examinations you
performed on Mr. Vedia as his treating physician that occurred when in 2006,when did
first resume that capacity?Dr.Racette:It may have been a week or 10 days after Mr.
Vedia's recorded onset of symptoms. I cannot tell you for a fact how long after Mr.
Vedia's problems began was the first visit with us.Mr. Smith: So if he were injured on
about 1/31/2006 you probably saw him sometime after that. Dr.Racette: Yes. Mr. Smith:
Between that point and May of 2006 when you served as treating physician and in that
capacity you had opportunities to evaluate and run tests on him about his condition. Dr.
Racette: Yes,numerous. Mr. Smith:I believe it is your testimony that it was determined
there was a need for reevaluation of his condition.Dr.Racette: Yes.Mr. Smith:Is that
because the treatment that had been provided previously did not seem to address his
medical needs.Dr.Racette:Yes,but not only that his symptoms seemed to be migratory.
Mr. Smith:Migratory by that do you mean it seemed to go manifest its way to the neck
area. Dr. Racette:New complaints,not only cervical but about the shoulder which
brought us a long distance away from where we began which was an isolated issue with
the right bicep on his initial presentation according to Dr. Cullen's history in clinical
finding. Mr. Smith: Was it later determined he had had a pinched nerve in his neck. Dr.
Racette: It is a little more complicated than that,a lot more complicated than that.Mr.
Smith:When you say the need to reevaluate you did find the cause of the lack of
movement in his arm cause some level of atrophy and than that then caused some other
problems and that worsened his medical condition.Dr.Racette: I can't say that last part is
correct,but the jest of it was he started off with a ball in his biceps as an isolated
complaint and then he had complaints or problems and pain around the shoulder girdle
the muscles around the shoulder blade and ultimately it was noted over the course of just
a few weeks he developed atrophy to those same muscles that indicated to us that the
problem was more extensive and involved in fact narrowing of the cervical canal which
was ultimately discovered and proven. It is not as simple as a pinched nerve,it's not a
single isolated injury or incident;it's is a diseased process that has a lot of complicated
interrelated issues.Mr. Smith: You found nonetheless that this discovery of his
conditions it was work related. Dr.Racette:Up until that point we were treating it as such
and because there was an exasperation of symptoms that were related to a lifting incident.
Had we gone on I am not sure I would have maintained positions due to the subsequent
findings that were identified on imaging studies,but his current treating physician has
maintained that it is still a work related problem. Mr: Smith: You have not found
anything that would dispute or cause you to come to a different conclusion?Dr. Racette:
Only through reading the records that have been submitted subsequently,the imaging
findings that we have are compellingly suggestive of something that is not work related,
that we have a disease process. Mr. Smith:But a generative condition none the less that
can be aggravated by a pull of a heavy weight that was the precipitating factor that caused
is injury. Dr.Racette:The symptoms there of can be exasperated.The aggravating word
which is a loaded word in our environment has not been demonstrated,but it is not for me
to say because I am no longer treating him.Mr. Smith:Now,as a city physician you were
part of the disability review committee that is in place under the city's limited duty
assignment policy.Dr.Racette:Yes.Mr.Smith:You have an opportunity to speak and
work with Ms.Papageorge in her capacity as the DRC coordinator. Dr. Racette: Yes. Mr.
Smith: As it relates to Mr.Vedia did you have any occasions to confer or speak with Ms.
Papageorge about what if anything Mr.Vedia might be able to do as far as work. Dr.
1 Racette: Yes.Mr. Smith: What did she share with you about what she needed from you in
•
determining what jobs if any Mr. Vedia might be able to perform?Dr.Racette: The
clarification of the work restrictions from Dr. Whitenburg which initially weren't
presented with this degree of specificity and having obtained those at one point. We
compared those restrictions to job descriptions both in the context of disability review
committee meetings and in discussions pertaining to Mr. Vedia's suitability for positions
we were considering him for.Mr. Smith: Did Ms.Papageorge ever talk to you about any
specific jobs that Mr.Vedia applied for?Dr. Racette:Yes,but I don't recall what specific
job.Mr. Smith: Did she discuss with you about a custodial worker position with the city.
Dr. Racette:That may have been it. Mr. Smith:What if anything did you discuss with her
about whether or not Mr. Vedia would be able to perform the duties of a custodial worker
for the city. Dr. Racette: The job description was lined up against these job restrictions
from Dr. Whitenburg and they did not seem compatible so he was not a candidate for that
position. Mr. Smith: What specific job duties of the custodial worker did you review and
compare with the restrictions noted by Dr. Whitenburg that you believe Mr.Vedia would
not be able to perform. Dr.Racette: I don't have the job description with me presently but
the essential job functions,the essential physical capabilities and the job were
inconsistent with these restrictions. Mr. Smith:Do you recall what the specific essential
job functions were for the custodial worker position with the City of Corpus Christi that
Mr.Vedia applied for. Dr.Racette: I don't.I don't remember what the details were. Mr.
Smith:As to any position that Mr. Vedia may have applied for while he was under city's
policy for limited duty assignments are you aware of any of the essential functions for
each of those positions which he applied for?Dr.Racette: What they will do is fax me or
transmit in some way job descriptions which I will set up on my desk and put it up
against the restrictions that the treatingdoctor has specified and I don't have those details
in each job description that the city has but they would be supplied on a as needed basis.
Mr. Smith:For example,did Ms.Papageorge or anyone else tell you some of the
common activities that an individual might have to perform as a custodian with the City
of Corpus Christi?Dr Racette:They would have simply provided me with a job
description not told me what the functions were.Mr. Smith: Can you tell us today
whether or not Mr. Vedia could not have performed any of those functions using his left
arm.Dr.Racette: It is not question of if he could have performed them the question is if
the job description specifies a certain level a capability and it doesn't match Mr. Vedia's
restrictions as specified by his treating provider than he can't be approved for that
position. Mr. Smith: You would agree if it required lifting of 20 lbs the job description
does not say whether or not it must be done with one ann or another.Dr. Racette:Usually
it doesn't say how it is to be done. Mr.Smith: So as it relates to Mr. Vedia you're not
telling us today that if he needed to lift 20 lbs he couldn't have done it with his left arm.
Dr.Racette:That specific function assuming that the job does call for 20 lbs is probably
within Mr.Vedia's current capabilities.Mr. Smith: In fact,you're not representing today
that you are aware of any specific task that Mr.Vedia would have had to perform that he
could not have done it with his left arm.Dr.Racette: Well you have to manipulate the
mop into the bucket,you have rinse it out,you have to press the lever and then you have
to scrub and move the mop with some force,I'm not sure I could do that one handed. Mr.
Smith: But you don't know and are not representing to this committee that he could not
have done it with his left arm. Dr. Racette: I am not representing any specific thing
without the job description,but apparently I found some functions within the job
description that he could not do otherwise I would have recommended.The whole
purpose of my evaluating Mr.Vedia is to try to find him a position that he could do,but
that wasn't one of them.Mr. Smith: You didn't tell Ms. Papageorge,listen why can't Mr.
Vedia do these jobs with his left arm,did you?Dr. Racette: I would not have asked such
a question.Mr. Smith: So as it relates to any job he applied for you don't recall any
specific conversations where you asked whether or not Mr. Vedia could have discharged
his responsibilities using his left arm.Dr.Racette:No sir.Mr. Smith:Did you review any
documents prepared by the vocational rehab person assigned to Mr. Vedia.Dr.Racette:I
believe we did in the DRC meetings.Mr. Smith: Do you recall any specific discussions
with the DRC about whether there should be some effort to see whether Mr.Vedia might
be able to perform some job that he perform using his left arm?Dr.Racette: That is one
of the essential functions of the DRC is people who are disqualified for whatever reason
from their usual normal job the attempt or purpose of the committee is to try to find them
suitable work for those folks remaining abilities. Mr. Smith: So you don't recall any
specific recollection about what particular job Mr.Vedia might be able to perform using
his left.Dr.Racette: You brought up the custodial worker position and I believe I
dismissed that one as a possibility because of something I found in the job description.
Mr. Smith:But you can't tell us what you found. Dr.Racette: But I can't think of any
other jobs that were presented to me,but that doesn't mean they were not.Mr. Smith: Do
you recall the position of a street inventory inspector?Dr.Racette: Honestly I don't at the
moment.Mr. Smith:What about a trade's helper. Dr.Racette: Yes.Mr. Smith: What
were you able to ascertain about what limitations that were suggested by Dr. Whitenburg
that Mr.Vedia would not be able to perform. Dr. Racette: Again in essence it was going
to be very difficult due to the dysfunction of the right arm and weight limitation.Mr.
Smith:What about the wastewater collection tech. Dr. Racette: I don't recall the details
of that one off hand. I know several positions were considered,but each one had some
disqualifying issues that Mr.Vedia could not perform in my estimation.Mr. Smith:But
you can't tell us specifically what that disqualifying element was as it relates to that job.
Dr. Racette: It would be fairly easy to look up. Pass the witness.
Ms.Knox:reserves Dr. Racette on rebuttal
City witness#3—Ann Jaime called and states business address as 122 Elizabeth,Corpus
Christi.Educational background is a registered nurse with a master's in nursing with
emphasis on rehabilitation nursing. Current profession is a rehab nurse,consultant,case
manager and life care planner.
Ms. Knox:Are you familiar with the city's limited duty policy?Ms.Jaime:Yes.Ms.
Knox:How long have you managed the medical cases for the city?Ms.Jaime: Started
back in.1988.Ms.Knox:What are your responsibilities as a medical case manager: Ms.
Jaime:My office is assigned cases of occupational or non-occupational clients and we
assist them with medical management and make sure they are getting the care that they
need and assist with return to work.Ms.Knox:Are you familiar with Mr.Vedia's case?
Ms.Jaime:Yes.Ms. Knox:Did Ms.Papageorge refer Mr. Vedia's file to you?Ms.
Jaime: Yes she did.Ms.Knox:Briefly summarize the work you did on Mr.Vedia's case.
Ms.Jaime: The case was first assigned in May 19111,we met with Mr.Vedia in the office
on May 23rd and at that point we were looking at his medical status related to a job injury.
,1 A month later he informed us he had an attorney,we contacted his attorney asking his
•
permission to continue working with Mr.Vedia because any time a client is represented
by an attorney we have to have the attorney's permission and in his case his attorney
never responded to us therefore we could not actively help him with medical case
management.Ms.Knox: Who was that attorney you were referring to?Ms.Jaime: Mr.
Wayne Wright from San Antonio. Ms. Knox:According to your records did Mr.Vedia
know that if he did not return to work by Nov.24,2006 his employment with the city
would be terminated?Ms.Jaime: Yes he did.Ms.Knox:Just to clarify,since Mr. Wayne
Wright was involved did that effect what you could do as a medical case manager.Ms.
Jaime: Sure,because we could not actively contact Mr.Vedia and talk to him to see if
there was anything they could do to help him.Eventually through vocational
rehabilitation we were able to as requested by the city for job placement we were able to
get the job restrictions from his attending physician. Ms.Knox:Was Mr.Vedia offered
the same or similar medical rehabilitation that is given to other city employees who are
placed under the city's limited duty policy.Ms.Jaime:Yes.Ms.Knox: As the medical
case manager have you done everything you can do Mr.Vedia's case?Ms.Jaime:We
have. Ms .Knox:Did Mr.Vedia's treating physician Dr. Whitenburg assign restrictions to
Mr.Vedia?What were those restrictions?Ms. Jaime: Yes,on Nov. 16,2006 the
restrictions were no lifting over 10 lbs with the right arm,no overhead reaching with the
right arm,no flexion straight in front of him with the right arm and no abduction with the
right arm.Ms.Knox: Were those the same restrictions assigned to Mr.Vedia at the time
he was terminated on December 7,2006. Ms.Jaime:According to the records they were.
Ms.Knox:Did you ask Dr. Whitenburg if the restrictions were permanent. Ms.Jaime:
Yes we did.Ms.Knox: What did Dr.Whitenburg say?Ms. Jaime:His response to us was
that based on the current medical condition the restrictions would be permanent if no
surgical intervention was attempted.His opinion if surgical intervention was done he
would probably have a favorable outcome perhaps he would not have permanent
restrictions.Pass the witness.
Mr. Smith:Ms.Jaime as the medical case manager for Mr. Vedia,did you ever learn
whether or not his ability to perform any essential job functions could not be discharged
by the use of his left arm.Ms.Jaime:My vocational counselor Ms. Viola Lopez can
address that in detail.Mr. Smith:Did you personally ever find out.Jaime:No vocational
issues are addressed by the vocational counselor. Pass the witness.
Ms.Knox:In reference to Dr. Whitenburg's correspondence to you with regards to the
surgery,has Mr. Vedia had the surgery to date?Ms.Jaime:Not to my knowledge.Pass
the witness.
Ms.Knox reserves Ms.Jaime on rebuttal.
City witness#4—Viola Lopez called and states business address as 1122 Elizabeth,
Corpus Christi,TX.Educational background consists of Bachelor's in Liberal Arts and a
Master's in Counseling with her current profession being a licensed counselor in the state
of Texas,I am a rehabilitation counselor.
Ms. Knox:Are you familiar with the City of Corpus Christi's limited duty policy?Ms.
} Lopez: Yes. Ms.Knox: How long have you provided vocational rehabilitation services
•
for the employees of the City of Corpus Christi?Ms. Lopez:Since the late 80's. Ms.
Knox: What are your responsibilities as a vocational counselor?Ms Lopez:As a
rehabilitation counselor my job duty is to interview the employees,I get a good
understanding of what their background is,their work history,and their educational level.
I do vocational testing to understand their literacy level,their arithmetic, and their math
level.I review medical information briefly to understand what the physical restrictions if
any are currently placed upon the employee and lastly to understand very thoroughly the
job that theyy have with the City of Corpus Christi,their position. Ms.Knox:Do you also
offer testing,training and other referrals to the Texas Rehabilitation Commission in an
effort to help employees secure employment again someday. Ms. Lopez: If our efforts
within the City of Corpus Christi are not successful in relocating the individual then a
referral is made,information is given to the individual regarding English as a second
language class if that is what they need,high school for GED preparation,information
regarding the closest DARS office and also information regarding the Texas Workforce
Commission.Ms.Knox:Are you familiar with Mr.Vedia's case?Ms.Lopez: Yes.Ms.
Knox: Did Ms.Papageorge assign Mr.Vedia's file to you?Ms. Lopez: Yes.Ms.Knox:
How many vocational counselors work in your office?Ms.Lopez: There are 3.Ms.
Knox:Please provide a brief summary of the vocational rehabilitation work that was
done on Mr. Vedia's case?Ms.Lopez: The first time I spoke with Ms.Papageorge
regarding the file was on September 1,2006 and on Sept 6th she faxed all of the pertinent
information to my office. On Sept. 7th was the initial interview with Mr.Vedia in our
offices.At that time there was no release to return to work and we were unclear as to
whether or not any restrictions had been placed or if they were permanent because of the
possibility of surgery;that was the understanding at that point.Then the next time we
spoke with Mr.Vedia was approx. a month later on Oct. 3,2006 at which time our
understanding was Dr. Whitenburg had placed restrictions of 10 lbs lifting,restricted use
of the left shoulder,restricted overhead reaching,restricted push,pull,twist or rotating of
the head.A report was issued I think on the 17th of Oct. with the initial written
assessment being done on Sept.20,2006.We followed up by phone with Mr. &Mrs.
Vedia during Oct.with a report being issued November 3,2006 at which time we
reported that Mrs. Vedia stated he was awaiting surgery and that no permanent
restrictions as of yet had been assigned.Then throughout November we continued
contact,sent a letter during November to Mr. Vedia regarding the department of
rehabilitation and about TX Workforce Commission.We had contact with Mrs. Vedia
during that month also regarding Mr. Vedia's depression and so we got information
regarding theemployee assistance program and put that in the letter also and sent it on so
they could have that information to which to make contact with them. Then our next
report was issued out Nov.28,2006 which at this point the understanding was he was
released to return to work with restrictions by Dr. Whitenburg the restrictions being the
same from October.Then we continued with services case management vocational
rehabilitation services looking online at the City of Corpus Christi website for whatever
openings are available to review them to see if there was anything that was appropriate
based on his work history which was a water technician,as a security guard and with an
understanding of what the physical restrictions were,his reading,spelling and arithmetic
levels which was border line illiterate,well functionally illiterate and so these were all of
the jobs that were pulled off the city online website. After Dec. 12,2006 Ms.Papageorge
said to continue looking for anything because he still was a city employee and so we
should continue to see what possibilities there were for;him. We had more contact with
} Mr.Vedia and Mrs.Vedia during December. We submitted a report December 22,2006
stating what our continued contact was and the restrictions still were released to return to
work with restrictions as we understood.Then in January we had contact with Mr.Vedia
and Mrs. Vedia and also with the head of one of the departments because there was a job
and through all of this Mr.Vedia was informing us as was his wife that he was applying
for different jobs within the city and we would discuss these jobs individually with the
job descriptions and inform Mr.Vedia what was appropriate and what was not
appropriate based on his restrictions and all of the jobs we looked at and that he
considered and applied for were not appropriate because they required more physical
ability than what physician had given him during this time.There was one the was
interested in,Street Inventory Inspector, so we contacted that department and talked to
Mel Sanchez because that job might be appropriate but it required that he be able to use a
sledge hammer that weighed"X"amount of lbs which was over the 10 lb limit not only
the 10 lb limit,but the restrictions that said no use of the right shoulder,no reaching
overhead and when se spoke to Mr. Sanchez he stated using the sledge hammer was an
essential function and could not be accommodated. With ADA we consider what type of
accommodation might be possible,if it is reasonable and if it could be something the
department can do.Then our last report was January 10,2007 we were still working
under the same assumption that the release to return to work with restrictions that Dr.
Whitenburg on Nov. 16,2006 that they were still in place.Ms.Knox: You continue to
' refer to reports,so there are actually reports generated from your office regarding Mr.
Vedia's vocational status?Ms.Lopez: Yes,there are 7 reports.
•
City exhibit#7A through#7H—Vocational reports,letter and updates on behalf of the
employee dated from September 20,2006 through January 10,2007 which are used in a
customary practice of you office and used to memorialize the vocational rehabilitation
services provided to Mr.Vedia?Accepted.
Ms.Knox:I think you already summarized what is in these reports,correct?Ms.Lopez:
Yes. Ms. Knox:Vocational testing was administered to Mr.Vedia: Ms. Lopez: Yes.Ms.
Knox: What were the results of those tests?Ms.Lopez: Testing was done October 3r1 and
the tests that were administered included the wide range achievement revision 3 which
measures reading,spelling,and arithmetic,the raven standard of matrices and the Perdue
peg board.With regards to reading he measured at the 3x1 grade equivalency,the spelling
was 2nd grade, and arithmetic was 4th grade.The raven measures abstract reasoning
abilities intelligence which he measured average.The Perdue measured below average as
well.Ms.Knox:Did Mr.Vedia's treating physician Dr. Whitenburg assign restrictions to
Mr.Vedia.Ms.Lopez: Yes. Ms. Knox:At what level did these restrictions place Mr.
Vedia?Ms.Lopez:According to the Dept.of Labor as restriction of 10 lbs would be a
sedentary level. Sedentary work requires the ability to lift up to 10 lbs occasionally and
smaller amounts such as a file or paper and it does not require any overhead or reaching;
essentially the best way to describe it is a desk job.Ms.Knox:Did you ever receive
anything from Dr.Whitenburg requesting Mr. Vedia be reassigned from his previous job
title Water Distribution Technician?Ms.Lopez:No. Ms.Knox: Does an individual's
personal profile determine the individual's possibilities for job placement?Ms. Lopez:
Yes.It depends on their work history,skills they have,level of education and what their
•
literacy level is.Ms.Knox: With Mr. Vedia's profile and medical restrictions you able to
find any job positions for him.Ms.Lopez:No. Ms.Knox: With regard to the jobs Mr.
Vedia applied for could he have performed those jobs using his left arm only. Ms. Lopez:
No,none of those jobs were sedentary and they all required the use of both upper
extremities.Ms. Knox: In your professional opinion was Mr. Vedia given the same or
similar vocational assistance that is given to other city employees placed under the
limited duty policy.Ms.Lopez:Yes. Ms.Knox: Did you continue to look for jobs for Mr.
Vedia after Dec. 6,2006?Ms. Lopez:Yes.Pass the witness.
Mr. Smith:When you refer to the Dictionary of Occupational Titles as it relates to
evaluating what jobs Mr. Vedia might be able to perform,nowhere does it specifically
say this job requires the use of both extremities?Ms. Lopez:It only gives a generic
definition,depending upon the job you have to look at that particular job and understand
• what the requirements would be for that job.Mr. Smith: So you're not representing that
you referred to the source Dictionary of Occupational Titles that said each job that Mr.
Vedia applied for required the use of both extremities.Ms.Lopez:No,what I used the
dictionary for is to identify what level of physical ability was reflected based on the
limitations set by Dr. Whitenburg.Mr. Smith:.When you make reference to the
restrictions placed by his doctor you do not account for whether or not that is limited to
one or both extremities do you?Ms.Lopez: Some of the reports he gave address that he
is not able to use the right arm.Mr. Smith: In fact,throughout your entire evaluation of
Mr. Vedia you were only provided information related to his right arm.Ms. Lopez:I
don't know what it related to but it is giving me restrictions.Again,I am not the medical
person on it so the restrictions I have are for the lifting,use of the right shoulder,
• overhead reaching,ext. If it just included one extremity or something else I can't answer
that...I don't know.Mr. Smith: You would agree that when you tried to determine what
level of work an individual might perform,you necessarily need to know what the doctor
has suggested or indicated as the extremity that is problematic.Ms.Lopez: Correct and I
have that in this TWC 73 which refers to his right arm.Mr. Smith:In the entire work that
you did in relation to your evaluation of Mr.Vedia you were not able to make any
.specific determination to decide if he could perform jobs with the use of his left
extremity.Ms.Lopez: Yes sir that is part of my job.As a rehabilitation counselor I have
to consider the jobs and what the duties are of that job and they required use of both
upper extremities.Mr. Smith: With regard to the position as a Wastewater Collection
Tech,were you able to review the job description.Ms. Lopez: Yes.If it was available to
Ms. Papageorge I would have viewed it and if she didn't have anything I would have
looked at it as far as the Dictionary of Occupational Titles. Mr. Smith:Then you go back
to a source that does not differentiate whether or not that requires the use of one or both
extremities. Ms.Lopez: It would,in my determination that job would require the use of
both extremities.Mr. Smith: You cannot point to any particular activity of the job that
Mr.Vedia could not have performed with the use of his left arm.Ms.Lopez:Yes,he can
use his left arm,but it would require the use of both.Mr.Smith: Would you agree that at
no time did you ever tell Ms.Papageorge or Dr. Racette or any member of the DRC that
Mr.Vedia specifically could not perform jobs if he was able to use his left arm.Ms.
Lopez:What I said was from all of the jobs I reviewed they required the use of both arms
and this person would not be able to do that. Plus you are looking at the 10 lb restriction
1 and jobs you are talking about including the water collection technician the requirements
of that job exceed the 10 lbs restriction that he has. Mr. Smith: He had no 10 lb restriction
on his left arm,did he?Ms.Lopez:It says right arm.Mr. Smith: So he had no restriction
on his left arm.Ms.Lopez:No. Mr. Smith:The definition of whether or not he was
limited to sedentary work would change if you based it on his left arm.Ms. Lopez:No,
because if you are talking about medium or heavy work those jobs are physically
demanding. I don't know anyone who could lift 100 lbs using one arm.Mr. Smith: Some
people have problems lifting 100 lbs using both arms.Ms.Lopez: Correct.Mr. Smith: So
the reality is if he is not given the opportunity to perform with his left arm you won't
know as a fact whether or not he could actually perform the job do you.Ms. Lopez: As a
rehabilitation counselor I would never ever recommend that a one armed person be given
a chance to do a job that after his physic an has limited him to 10 lbs lifting.It would be
outside of my scope. I think it would bdw eck less. wouldn't do it. I understand your
question,but I cannot agree with you.Mr. Sm�fact,you didn't bother to call Dr.
Whitenburg and say listen his left arms seems fully capable and intact do you recommend
or restrict his ability to perform using his left arm.You never took that step did you?Ms.
Lopez:That is not my job;I am not the medical personnel on the file.Mr. Smith: You
never suggested to anyone to find that out did you?Ms. Lopez:No,I wouldn't because as
I said to you I would not recommend anyone going into a job that is either medium,
heavy,or very heavy with just the use of one arm.Mr. Smith: So you agree that you
made no recommendation to Ms. Papageorge or the committee did you make specific
reference of possibilities of performing jobs with his left arm did you?Ms.Lopez:
. Absolutely not,nor would I.Mr.Smith: In fact you never made that suggestion as part of
an accommodation that might be suitable under certain circumstances for Mr.Vedia to
perform jobs.Ms.Lopez:Again,I would not recommend that,not with the level of work
that they do and the physical demands.You are risking that person injure something else
if you are asking them to do that job with one arm.Mr. Smith:There are people who are
limited to one arm who are able to function and perform some jobs aren't there?Ms.
Lopez:It depends on their own profile,their on background. What kind of work they
have done in the past,their work history,what their educational level is,if they have
skills that transfer to other work.Everyone is different.Mr. Smith: You would agree that
for whatever reason some individuals loose a limb or become incapacitated but none the
less with restrictions are able to perform some duties of their job.Ms. Lopez: Again,it
depends on the person.Mr. Smith:You never learned or provide Mr.Vedia an
opportunity to use his left to do sweeping.Ms.Lopez:No. Pass the witness.
Ms.Knox:Just wanted to clarify if there was not a job description provided by the city
• there is a generic description somewhere that you look at?Ms.Lopez: Yes.Ms. Knox:
Where is that?Ms.Lopez:The dictionary of occupational titles.It is a US Dept.of Labor
publication.Ms. Knox:And according to those generic descriptions with regards to the
specifically to the jobs Mr. Vedia has applied for,both upper extremities were required.
Ms.Lopez:Yes.Ms.Knox:Did you talk to Mr. Vedia about why those positions he
applied for were inappropriate.Ms.Lopez: Yes. Ms.Knox:And at any time did Mr.
Vedia or his wife ask you why can't he do it with his left arm?Ms.Lopez:No,in a
number of instances they agreed he couldn't do that job,wouldn't be able to do that job.
Pass the witness.
Mr. Smith:Mr.Vedia and his wife spoke with you about what job they thought he could
•.� perform,didn't they?Ms.Lopez:Yes,and after a discussion about why it wouldn't be a
good idea because of the functional restrictions they agreed.Mr. Smith: Functional but
not physical restrictions. Ms.Lopez: Well functional,physical it's the same.Physical
restrictions translate into functional limitations and if your physical restrictions translate
into such functional limitations that you are not able to do the job then the restrictions are
functional limitations.Vocationally that is what is pertinent.Mr. Smith:Which job did
Mr.Vedia and his wife tell you he thought he could perform?Ms.Lopez: Building and
grounds custodian/gardener and after we reviewed them they required heavy/physical
ability and were not appropriate for him. On several times they were counseled to be
sure to look for those jobs within the restrictions.Refuse collection and street inventory
inspector were discussed and explained how they exceeded his limitations and they stated
they understood.Mr. Smith:Would it be moreaccurate summary that Mr.Vedia wanted
an opportunity to take on some of these jobs and you made the determination that he not
be given that opportunity.Ms.Lopez:I did not make that determination that he not be
given the opportunity,my determination was the job based on the physical demands of
that job and his level of restrictions was not appropriate,but it is not my decision to allow
someone or not allow someone to try a job. Mr. Smith: You testified earlier that you first
had your initial interview with Mr.Vedia sometime in Sept.2006,why did you get
involved at that point after he had been injured on or about January 31,2006.Ms. Lopez:
I can't answer that question.That is when I was referred the case.Pass the witness.
Ms.Knox reserves Ms.Lopez on rebuttal.
} City witness#5—Danny Ybarra called and states his business address P.O. Box 9277.
Has worked for the City of Corpus Christi for 20 years with his current position being the
Assistant Director for the Water Department with primary responsibilities being:to
provide water to wholesale and city customers.
Ms.Knox:As the assistant director is it your responsibility to issue discipline when an
employee violates a city policy?Mr.Ybarra: Yes.Ms.Knox:Who is the director of water
operations?Mr. Ybarra: Eduardo Garana.Ms. Knox:Is Mr. Garana also responsible for
issuing a discipline when a city employee violates a city policy?Mr.Ybarra: Yes.Ms.
Knox:Is it standard procedure for the H/R dept to keep your dept. informed to insure the
cases involving your employees who come under the limited duty policy are handled in
accordance with the terms of the limited duty policy?Mr. Ybarra: Yes.Ms. Knox:Did
your dept.work with H/R dept to ensure that Mr. Vedia's case was handled in accordance
with the terms of the city's limited duty policy.Mr. Ybarra:Yes.Ms.Knox:Is it standard
procedure for the H/D dept to inform your department that your employees under the
limited duty have exhausted their time under the city's limited duty policy?Mr.Ybarra:
Yes.Ms.Knox: Did the H/R dept inform your dept that Mr.Vedia exhausted his time
under the policy. Mr.Ybarra:Yes. Ms. Knox:Did your dept. issue a contemplated
termination action letter to Mr. Vedia?Mr. Ybarra: Yes.
City exhibit#8—Contemplated termination action letter addressed to Mr.Vedia dated
November 17,2006.
1 /
Ms.Knox offers exhibit#8 into evidence.Accepted.
Ms.Knox: Did your dept.issue a termination letter to Mr.Vedia?Mr. Ybarra: Yes.
City exhibit#9—Termination letter dated December 7,2006 addressed to the Civil
Service Board which was mailed to Mr.Vedia.
Ms.Knox offers exhibit#9 into evidence. Accepted.
Ms.Knox: Is it standard procedure for your dept..to.issue a document like city exhibit#8
&9 after an employee has exhausted his time under the city's limited duty policy.Mr.
Ybarra: Yes.Ms. Knox: Considering the fact Mr.Vedia was not released to full duty and
the city was unable to place Mr.Vedia in an alternate position when Mr. Vedia exhausted
his time,do you believe Mr.Vedia's termination is fair and justified?Mr. Ybarra:Yes.
Ms.Knox: Are you asking the civil service board to uphold Mr.Vedia's termination?Mr.
Ybarra: Yes. Pass the witness.
Mr. Smith:Did you during the course of Mr.Vedia's limited duty status meet with the
DRC,if so when?Mr.Ybarra:Yes,I don't recall the date.Mr. Smith:What suggestions
if any did you make to the DRC concerning Mr. Vedia? Mr. Ybarra: We follow the
recommendations from the H/R dept.based on the city physician and vocational
representative.We follow their recommendations for direction.Mr. Smith:Before you
put your signature either on city exhibit 8 or 9 had you personally spoken with Ms.Lopez
about what if anything she had done to review Mr.Vedia's employment status.Mr.
Ybarra:No,sir.Mr. Smith: Had you prior to the signing of exhibits 8 or 9 spoken with
Ann Jaime about the work status of Mr.Vedia?Mr. Ybarra:No,sir. Mr.Smith:In fact,
before you signed the notice of contemplated termination and letter of termination had
you personally spoken with Ms.Papageorge about Mr. Vedia's work status.Mr.Ybarra:
Just in that one DRC meeting.Mr. Smith:You didn't personally review any information
in connection with the limited duty status that Mr.Vedia was placed on,did you?Mr.
Ybarra:No,sir.Mr. Smith: You didn't make an independent determination as to whether
or not there was sufficient evidence made available that was used in support of the
decision to terminate Mr. Vedia?Mr.Ybarra:No,sir.Mr. Smith:In your capacity as the
asst.director of the water dept. you have some authority to provide input as to what if
anything ought to be done with an employee who is contemplated for termination,don't
you?Mr. Ybarra:Yes,sir.Mr. Smith:In fact,you have authority to decide whether or not
a specific violation of the city policy has been committed in relation to whether or not to
discipline or terminate an employee, don't you?Mr. Ybarra:Yes sir.Mr. Smith:You
would agree as,part of your responsibility duty to discharge your decision in connection
with the termination of an employee,you should verify the information used to take that
step. Mr. Ybarra:I should review the information presented to me.Mr. Smith: You didn't
call or confer with Dr.Racette concerning Mr.Vedia's status.Mr.Ybarra:Just in that
one DRC meeting.Mr. Smith: You didn't personally sit down with Mr. &Mrs.Vedic to
discuss with them if there was some way that you believe Mr. Vedia could be in
compliance with the city policy as it relates to limited duty assignments. Mr. Ybarra:No,
sir.Pass the witness.
Ms.Knox:In the capacity as Assist.Director are you required to comply with city
policies?Mr.Ybarra: Yes.Ms.Knox:Were you informed that Mr.Vedia had failed to
comply with the city's limited duty policy?Mr.Ybarra: Yes. Ms.Knox:Pursuant to the
city's limited duty policy what was the result with Mr. Vedia' failure to comply with the
city's limited duty policy?Mr. Ybarra: The policy dictates what the actions are based on
whether they comply or don't comply.Ms.Knox: Pursuant to the guidelines of the city
policy there was a recommendation for termination,is that correct?Mr.Ybarra: Yes.
Mr. Smith: In connection with that policy what did you do to satisfy your mind that the
city was unable to place Mr.Vedia in a position with the City of Corpus Christi?Mr.
Ybarra: We utilize our H/R dept to process those functions of making sure that we
comply with the policies and it is their responsibility to make sure every effort is being
made to do that.Mr. Smith: What I want to know is what you did to determine and verify
the city was not able to place Mr.Vedia in a position. Mr. Ybarra:I conferred with the
appropriate dept.which is the H/R dept in this case to make sure that it's being done. Mr.
Smith:That was at that meeting you referred to earlier?Mr. Ybarra: At that meeting and
when these letters are presented to me I ask our representative that all that has taken
place.Mr.Smith: You spoke with that representative?Who was that representative?Mr.
Ybarra: Yes,Regina Lee.Mr. Smith:You spoke with Regina Lee and asked her to verify
that?Mr.Ybarra: Yes,sir.Mr. Smith:But you personally didn't do it?Mr.Ybarra: Yes,
sir because she brings me these to sign and when I sign them we discuss them. I am
familiar because of the DRC meeting with these cases. I know those efforts are already
being made and before I sign them I make sure and verify with her that those efforts are
being made.Mr. Smith: To verify those efforts are being made,what documents did you
review in support of that?Mr. Ybarra:I don't review documents.Mr. Smith: So you
don't know what if anything she may had as a recommendation in support of this is
accurate or not. Mr.Ybarra:Of course,not.Mr.Smith: When it comes to whether or not
he violated the city policy you cannot sit here and explain what document you looked at
medical or otherwise and say this is an inappropriate decision because the city was not
able to place him in an appropriate position.Mr. Ybarra:No, sir.
Ms.Knox:During the DRC meeting you did attend was there only discussion or were
there documents. Mr.Ybarra: Yes there is documentation that is presented to us
pertaining to the cases being discussed.
Ms.Knox reserves Mr. Ybarra on rebuttal.
City rests.
10 minute break time 12:50 pm.
Resume hearing,time 12:57 pm.
Ms.Knox:The city objects to the testimony of Mrs.Vedia for the reason Mr.Vedia did
not designate Mrs.Vedia as a witness and pursuant to Article 4,section 3A at the rules
and regulations of the civil service board the request to subpoena witnesses for the
hearing must be received with the appeals notice or be provided within 5 working days
•
following the date of the notice and they did not provide any information that Mrs. Vedia
was going to be a witness.
Mr. Smith:I don't think that applies to this particular case.To present his claim he is able
to bring forth those individuals who can provide information to rebut what they provided
and an opportunity to get a complete review of what the circumstances are in connection
with his claim.
Ms. Knox:The city would just like it noted on the record the objection.
Mrs.Vedia called as a witness for Mr.Vedia.
Julie Diana Vedia, spouse to Mr.Gerardo Vedia.Mr.Vedia has been with City of Corpus
Christi for 10 years.
Mr. Smith:When did Mr.Vedia's injury occur?Mrs. Vedia:January 31,2006.Mr.
Smith: During the time Mr.Vedia was placed under the limited duty assignment was he
under medical care and who was his initial primary physician?Mrs. Vedia: Yes,Dr.
Racette up until around May 2006.Mr. Smith:Did you husband after May get another
physician?Mrs.Vedia: Yes,Dr.Whitenburg which still remains as his primary
physician. Mr. Smith:During the course of your husband's assignment to the limited duty
has he made any efforts that you are aware of to secure other employment with the city.
Mrs.Vedia: Repeatedly. Mr. Smith: Can you explain to the committee what steps you are
aware of that your husband took to attempt to get other employment with the city.Mrs.
Vedia:Towards the latter part of his limited duty,he went to city to apply online. He
would look to see what was available and would put into the basket to apply. There were
several: street inspector,refuse collector,and those were two I figured because I read the
job descriptions on both of them and seemed to me he could do those jobs but was
denied.Mr. Smith: How do you know he was denied?Mrs.Vedia:The street inspector
stood out the most because Cindi Papageorge and Viola Lopez he didn't qualify because
it involved a sledge hammer. Other indications were measuring cracks in the street and
putting out stakes and the stakes it didn't say the size of and where to put them it just
indicated the use of a sledge hammer which he couldn't use due to the limitation on his
right arm.Mr. Smith: Was there any discussion either with Ms. Lopez or anyone else
with the city about whether or not he could discharge his responsibilities with the use of
his left arm.Mrs. Vedia:No,during his 6 month limited duty assignment and his 90 days
no work his limitations stayed the same,never changed yet worked his limited duty
assignment.Mr. Smith: What work was he doing during the initial 6 month period that he
was during his limited duty assignment?Mrs.Vedia: Simple tasks like picking up
garbage,watering grass,running errands for the water dept.Mr.Smith: Was he paid at
the same rate to do those jobs?Mrs.Vedia: Yes.Mr. Smith:Did the restrictions Dr.
Whitenburg give prevent him from discharging those responsibilities using his left arm?
Mrs.Vedia:No,not the limited duty ones.Mr. Smith: You stated Dr. Racette lied to you
husband,what are you referring to?Mrs.Vedia: He more or less told him during a series
of tests he went through it was a tom muscle,a sprained arm and when it came to it it was
a pinched nerve in the neck.They all missed the boat on the diagnosis. Mr. Smith:After
you changed doctors,what month did that occur in?Mrs.Vedia: Toward the end of
.
May/June. Mr. Smith: After you got your second doctor,Dr.Whitenburg did you then
have an opportunity to speak with Ms.Papageorge about finding suitable employment for
your husband with the city?Mrs.Vedia:Not until his 90 days towards the end.Mr.
Smith:Do you know if Dr. Whitenburg provided any info to the city regarding your
husband's restrictions.Do you know if anyone from the city or Ms. Lopez ever talk to
you in regards if you husband could do work using his left arm.Mrs.Vedia:No.His left
arm was never brought up. All they focused on was the limitations on his right arm.Mr.
Smith:Do you believe the city did all it could to try to place your husband to a position
where he could use his left arm?Mrs.Vedia:No,because they wanted him to go find
himself a job online and they would just look in the computer. There were jobs I thought
he could do because he didn't have limitations on his left arm nor did it affect his ability
to walk, squat or sit.Mr. Smith:Did you have an opportunity to speak with Mr. Ybarra?
Mrs.Vedia: Yes,I went with my husband on Dec:4th.What it came down to was he was
a good employee for 10 yrs,never written up,never got into trouble and did what he was
suppose to,but it was a policy.They had to go by the policy. It was a very emotional
time,he was about to lose his job,everything he worked for:retirement,health benefits,
everything.Pass the witness.
Ms.Knox:No questions.
Mr. Vedia called to testify on his own behalf.Mr.Vedia sworn in.
Mr. Smith: Mr.Vedia how are currently employed?Mr.Vedia:Right now I am still with
the City of Corpus Christi.Mr. Smith: What job do you hold there?Mr.Vedia: I used to
work for-the water dept. as a water technician. Mr. Smith:What were your job duties that
you performed?Mr.Vedia: We worked from fire hydrants to running crews,helping with
the customers,breaks,we mostly did it all.Mr. Smith: You got injured sometime in Jan.
2006 and on account of that injury that affected your ability to work in the position you
held.Mr.Vedia: That is where it started. First it was a torn bicep,then a torn rotator cup,
then arthritis and finally a pinched nerve. We've been back and forth with these doctors
and I'm sick and tired of it.Mr. Smith:In regards to the limitations that you were placed
under did you ever receive any info from you doctors that you shouldn't work with you
left arm. Mr.Vedia:No,I was working for 6 months lifting as much as I could.There is
always a job out there;it's up to the city if they want to find me a job.Mr. Smith:Did
you at any time learn from an official with the city that you could not perform jobs
because you had to use both your left and right arm.Mr. Vedia:No they never did tell me
that,just with the limitations with my right shoulder and that was it.Mr. Smith:.You
applied for custodian position.Mr.Vedia: Yeah,I've tried everything labors and
whatever they had down there. Give me a vacuum and I'll vacuum the whole city,city
hall for you. I've got one good arm.But later on I just started giving up on them. Mr.
Smith:Do you think in regards to the custodial position,you could have performed that
job with the use of your left arm?Mr.Vedia: Oh,.yeah.Mr. Smith: Did you apply for a
position with the street as inventory inspector.Mr.Vedia: Yes,they never called me. Mr.
Smith:The duties connected with that job,are you familiar with them?Mr.Vedia: Oh,
yes sledge hammer,but I got strength down here, not up here. I can't hammer so you
•
gonna put a stake on the floor you gonna put it on the floor. Mr. Smith:You believe with
the restrictions on you right arm you could have utilized that?Mr.Vedia: Yes. Mr. Smith:
•
Did you ever discuss that with any city officials?Mr.Veida:No,because they never sent
me over there.They never called me for that position.Mr. Smith:Do you recall how man
specific jobs you did apply for?Mr.Vedia:I think about 7.Mr.Smith: Of those 7 jobs
were you ever called by the city to see if you could perform any of them.Mr. Vedia: The
only one that called me was wastewater. I went to an interview.It was a lot of digging;
the same as with the water dept. I wish I had use of my other arm. I don't blame the water
dept.because I don't have a job,but there is always a job out there. Mr.Smith: With
regard to the trader's helper,did you apply for that job.Mr.Vedia:Yes,I forgot what it
required.My wife takes care of it;I just deal with the pain all day. Mr.Smith:Do you
recall at any time for any jobs you applied for that you were told that you could not
simply use your left arm to do the job?Mr.Vedia:No.Mr.Smith:Do you think given the
opportunity to work with your left arm you could have done some of these jobs.Mr.
Vedia:Give me a 5 gallon bucket of water I can pick it up.I can't raise it up.I can mop
all this here,but they never called me.Mr.Smith:Did you want the opportunity?Mr.
Vedia:Yeah.Pass the witness.
Ms.Knox:Isn't it true that your treating physician still has not released you to full duty.
Mr.Vedia:He sent a letter to Papageorge.I wouldn't know that.Ms.Knox: So you're
capable of doing every essential function of your job?Mr.Vedia:My job right now,no.
I'm telling you about mopping here,what ever. But I can't go to my old job.I know that
job is heavy;I've been there for 10 years.Pass the witness.
Ms.Knox: I have a rebuttal witness: Cindi Papageorge.
Ms.Knox:With regards to limited duty assignment Mr.Vedia did was that a permanent
position that the city had?Ms.Papageorge:No it was placed with the supervisor Arnold
Longoria. It was watering,going to service center,picking up vehicles,picking up papers
around the yard;it was just limited duty tasks. Ms. Knox: So it is not a permanent
position.Ms.Papageorge:No.Ms. Knox:Mr.Vedia testified that he hasn't been hired by
the departments for the multiple jobs he's applied for.Do you have any idea why he
hasn't been contacted by the departments he's applied for.Ms.Papageorge:No,the
technicians handle recruitment here at H/R.It is all done online now.The techs refer
applicants to the dept and the dept decides who they want to interview or not.Ms.Knox:
So it is up to the specific dept.who they want to interview?Ms.Papageorge: Yes.Pass
the witness.
Mr. Smith:As the DRC coordinator part of your responsibility is to coordinate job
opportunities with the departments and Mr.Vedia?Ms.Papageorge: Yes. Mr. Smith:
You're not limited to wait on them to contact you,you can contact them if you are aware
of a positions if you are aware of a position suitable for Mr.Veida to work in aren't you?
Ms.Papageorge: Yes,a vacancy that he may be able to do,I can contact them.Mr.
Smith:In fact,part of your responsibilities to identify the available positions he might be
able to work in and to see whether or not there are conditions for which he could then
satisfy the responsibilities of that job.Ms. Papageorge: Yes.Pass the witness.
Ms.Knox:No further questions.
Closing statements:
> Ms. Knox: The city's Limited Duty Policy is very clear;an employee will be
recommended for termination if he/she has not returned to any type of work even limited
duty with or without accommodations within 9 consecutive months beginning the first
day the employee was referred to the disability review coordinator or has been in the
limited duty pool for six months and has not been placed in an alternate regular duty job
during an additional 90 day period.To date,Mr.Vedia has elected not to have the
physician recommended surgery and his restrictions continue. In the case before you
today several witnesses confirmed the city's limited duty policy was properly executed in
Mr. Vedia's case.Ms.Papageorge testified on or about Feb.24,2006 Mr.Vedia came
under the city's limited duty policy because he was released to limited duty with
restrictions.Ms.Papageorge confirmed that Mr.Vedia was given his allotted 9 months
under the city's policy. Ms.Papageorge further explained that Mr.Vedia was given the 6
month limited duty assignment period which expired on Aug.24,2006 and following the
6 month limited duty assignment period Mr.Vedia was given a 90 day period at home
which expired on Nov.24,2006.Ms. Papageorge also testified that Mr.Vedia did qualify
for leave under the Family Medical Leave Act in 2006 which ran concurrently with the
90 days at home.Additionally Ms.Papageorge stated that prior to Nov.24,2006 Mr.
Vedia was advised multiple times by the H/R dept.when his time would expire under the
city's policy.Dr.Racette testified he say Mr.Vedia on Nov. 16,2006 as the city's
designated physician for a fitness for duty medical evaluation. Dr. Racette further
testified Mr.Vedia was unable to perform the essential functions of a water distribution
technician.When Mr. Vedia's time under the city's policy expired on 11/24/06 neither
Mr. Veida's treating physician nor had the city's designated physician released Mr.Vedia
with or without accommodation. You heard Ms. Ann Jaime as the medical case manager
summarize her work on Mr.Vedia's case.Ms.Jaime testified that her ability to provide
medical case management to Mr.Vedia was hindered by his attorney Mr. Wayne Wright.
Ms.Jaime confirmed that Mr.Vedia's treating physician Dr.Whittenburg still has not
released Mr.Vedia to full duty with or without an accommodation.Also,Ms. Viola
Lopez as a vocational counselor summarized her work on Mr.Vedia's case.Although
Mr.Vedia was not released to work by Dr. Whitenburg with permanent restrictions Ms.
Lopez testified she had been looking for alternate positions for Mr.Vedia. In fact,Ms.
Lopez stated that she has continued to look for alternate positions for Mr. Vedia even
after Mr.Vedia exhausted his time under the city's policy.Ms.Lopez testifies the city
has been unable to find another job for Mr.Vedia because of his restrictions and because
of his limited personal profile.Ms. Lopez testifies that the jobs Mr.Vedia applied for
require the use of both upper extremities.Ms. Lopez also testified that placing an
individual in a position which conflicts with the assigned restrictions would be reckless.
The city has done all it can to assist Mr.Vedia returning to work.In fact,the city has
continued its efforts to search for jobs for Mr.Vedia.The evidence shows that Mr.Vedia
was fully aware that he would be recommended for termination if he was not released to
full duty with or without an accommodation on or before 11/24/06. However,Mr.Vedia
was unable to comply with the city's policy;therefore we believe the evidence supports
Mr. Vedia's termination and we ask that you uphold the termination.
Mr. Smith:This is a case that the city has tried to mechanically apply policy to a situation
? that requires the use of its ability to think outside the box. In this particular case the
policy is in 2 essential parts: 1 —deals with the limited duty assignments,that's
reasonable because it deals with on the job or non job related injuries for which an
employee may not be able to perform the essential functions of his position,but in
connection with that is an essential part of that policy that deals with reasonable
accommodations.They have demonstrated by the testimony that has elicited today that
they refused to consider reasonable accommodations for Mr.Vedia and that's important.
Why?Because the policy if it is to be applied in the negative should also apply in certain
circumstances that require that they be held to the standards that this policy dictates. And
it provides that under those circumstances where the individual has not been able to.come
back to work then the reasonable accommodations policy would come into effect.A
policy that is rather specific as to what the circumstances are and it talks about what the
reasonable accommodations are. The testimony we heard today is that the city refused to
consider how if they were to allow him to work jobs not from some theoretical construct
but the actuality if he could discharge the duties with the accommodation to use his left
arm. They speak of these technical situations where under some instances where there
may be the need for some large heavy object,but there is no evidence that that is a
significant part of the job.In fact,we don't know if it was something that was routinely
part of any job that he applied for.They do acknowledge that he did apply for various
jobs but they seem to find excuses not to put him into a job and then say now that we
don't put you in we're gonna fire you. That is not the purpose of the policy.The policy
says that you are to make the effort and if you are unable.Unable is to suggest that you
cannot under various reasonable circumstances.He's testified;the witnesses were unable
to contradict that he could work with his left arm.The doctor didn't find any problem
with it.Dr.Whitenburg that would say that there could be no use of his left arm. It may
seem obvious,it could have been an oversight but he shouldn't be penalized for that.That
is to simply say because he had restrictions on one side would forgo what we know to be
true from our own experiences that people have limitations in any number of ways
through vision,through walking,hearing yet they function and they are able to be
productive citizens within their community.All Mr.Vedia asks is that he be given the
same consideration that is consistent with this policy that he not simply be viewed as
someone that cannot work because he has a problem with one extremity and to overlook
what he is able to do. But they didn't want to know.It's one thing to say it would be
inappropriate to say to put someone to do something but when you have a human being
who's given 10 yeas of good dedicated service does he not deserve the opportunity. That
he was denied. That was inconsistent with the policy. They are required under the policy
to see if he was able because to be unable is to say you cannot do.They didn't give him a
chance so they cannot rely upon the fact that they were unable to place him because they
didn't give him the opportunity to be placed to perform to use his left arm to do the job
which he applied for and we believe based on that he should be restored fully in his job
with the city,to be place in a job in which he could use his left arm and be a productive
citizen with the City of Corpus Christi.
Time is 1:30 pm and the civil service board will go into closed meeting.
Time is 2:00 and the civil service board has ended their closed meeting.
Jose Moncada:I recommend that Mr.Vedia be extended the opportunity to be considered
for job vacancies through the end of March 2007. If a functional capacity test has not
S 4
been administered,I recommend that one be conducted to determine his ability to use his
left arm;this of course to be done in concurrence with his physician.I ask that the H/R
dept.consider how frequently essential tasks are performed in the positions that are
considered.In addition,I ask that reasonable accommodations be made when possible.If
after the end of March 2007 no suitable position is found for Mr.Vedia I recommend that
the termination be upheld.
John ilv d Eileen Butler agree all in favor.
Ms.Knox: Can I get clarification for the record.If for some reason the termination is
upheld at the end of March is there any type of appeal process at that point?
Jose Moncada: I am not sure if there is an appeal after an appeal.I can't really say.
Ms.Knox:Normally pursuant to ordinance if there is an appeal of the board's decision
then it gets appealed to council.Would that be the next step?
Jose Moncada: I would think it would go to City Council.
Jose Moncada: Continuing with further business,we need to review and approve the
minutes for the 537th Civil Service Board.
Minutes are approved.
Monthly hearings are discussed. Agreed to have meetings on the 2nd Thursday of the
Month if necessary.
Jose Moncada states it is 2:05 pm and the meeting is adjourned.
d..,
1,;;:j
Cyn a C.Carica,Director of Jose Moncada,Chairperson
Human Resources Civil Service Board
6?7iije„r„....)J P. Silvasber Eileen Butler,Member
1 Service Board Civil Service Board
}