By Joyce Miles<br><a href="mailto:joyce.miles@lockportjournal.com">E-mail Joyce</a>
Lockport Union-Sun & Journal
June 19, 2009 12:53 am
—
Another fight over disability compensation is erupting between the Tucker Administration and Lockport Professional Fire Fighters Association.
The spark: The paid sick leave of Lt. Michael A. Collette, who hasn’t been at work since March 20 due to a back injury he says he suffered on the job.
The city is refusing to treat Collette’s absence as a firefighter disability case. Every day that Collette hasn’t worked, Chief Thomas Passuite has charged him 10 or 14 hours of accrued sick pay. Those are the lengths of shifts that firefighters work.
If Collette hasn’t returned to work by the time his sick-day account is emptied later this month, Passuite intends to start drawing down Collette’s accrued vacation time.
Once that’s gone in mid-July, if Collette still remains off duty on a physician’s excuse, he’ll be referred to Worker Compensation and could see his roughly $67,000 city income reduced by one-third.
Collette hasn’t been approved for firefighter disability leave — a state in which an injured firefighter is paid his salary in full, tax-free, and his sick and vacation accruals are untouched — because city officials don’t believe his injury merits that treatment.
Their suspicions are fueled by questions from the city’s health insurer, as well as entries Collette made on his Facebook page the past few months.
While Collette maintains he’s too injured to report for fire department duty, officials point to Facebook entries since March 20 in which Collette writes about yachting on the Hudson River, traveling to Florida, buying a home and opening a second MAC Limo outlet in Naples — and planning a month-long “Great RV Tour” of the western United States.
If he wasn’t too injured to do these things, the officials argue, it’s difficult to believe he’s too injured to work.
Collette, an 18-year veteran of Lockport Fire Department, is outraged to think his employer would question the circumstances, and/or the severity, of his injury.
“It’s a slap in the face. I was injured at work; it’s on the record,” he said. “Plain and simple, the city has been illegally using my sick days. ... They’re jeopardizing my career, my future, my retirement and my hard-earned benefits.”
LPFFA is preparing a formal grievance against the city for refusing to hold a hearing
see claim on Page 10A
on Collette’s claim that he’s entitled to “207a” firefighter disability coverage, union President Randall Parker said this week.
Collette, 44, didn’t hurt himself fighting a fire, or treating a patient in the course of paramedic duty. Last October, he reported to Passuite that he’d strained his back while lifting a box of files bound for city storage. When he went on sick leave in mid-March, he tied ongoing spinal/nerve issues to that incident.
Administrators argue Collette’s claim should be handled through worker compensation, not the 207a program. They think the latter ought to be reserved for firefighters injured in the line of rescue duty, not office work.
“I’m not so sure we agree Mike got injured at work,” Mayor Michael Tucker said. “I’m not making light of his injury, but I think the city has a different position on it than Mike does. If he was injured in the line of duty, saving other people’s lives, he certainly should be justly compensated. But it’s a lot different fighting a fire than lifting a box.”
The back story
The city had Collette summoned for an independent medical exam earlier this week. It wants a determination, from a physician not of Collette’s choosing, what the extent of his disability is and whether it can order him back to work.
Collette reported hurting himself lifting the box of files on Oct. 3. He was taken to the emergency room at Lockport Memorial Hospital from work the same Friday. The examining physician wrote a note excusing him from duty through the weekend.
Since the incident, Collette said, pain in his lower back has progressively worsened and now he’s suffering numbness throughout his left leg. Visits to a chiropractor and an acupuncturist didn’t help, he said; by February he was limping and taking pain medication. He’d been hoping since October that all he suffered was a pulled muscle and the pain would eventually go away, he added.
A mid-March visit to a specialist brought a diagnosis of nerve damage to Collette’s left leg. An MRI suggested “moderate” lower disc herniation, Collette said. He got the physician’s note excusing him from work and started physical therapy. The specialist later told him therapy might ease the pain but only surgery would put the herniated disc back in place, he said.
Because Collette’s health complaint is tied to a workplace incident, the city’s health insurer has greater approval rights over his treatment. Collette claims it’s been stingy with the approvals and basically is delaying his ability to get better and return to duty.
“If I played football or hockey, the day after I got hurt there’d be no question about the necessity of treatment,” Collette said. “If I was an athlete I’d already be back in the game.”
Online journal raises red flags
Shortly after Collette’s leave took effect, Tucker began receiving anonymously e-mailed tips about Collette’s activities off duty.
The tipster sent screen shots from Collette’s Facebook page, on which there are photos posted of him playing volleyball, riding a yacht, touring the Naples, Fla., zoo and attending a party at Iron Island Museum in Buffalo.
The posting dates are all after March 20, but there’s no indication when the photos were taken. Collette says many of the hundreds of photos posted on his Facebook page — including the photo in which he’s shown playing volleyball — are older than his injury.
It’s not just the photos that city and insurance officials are questioning, however. Dated text on Collette’s Facebook has him self-reporting yachting with friends on the Hudson River, taking an 8-hour limousine ride with his wife and friends, touring Iron Island Museum and traveling to Long Island to take in his young daughter’s violin recital, all in the month of May.
Around June 1, the anonymous tipster sent Tucker, and the Union-Sun & Journal, a screen shot from Collette’s Facebook detailing “Michael’s Great USA RV Tour.” Collette wrote he was planning a four-week, solo “mystery tour” of the south, Midwestern and western United States, from June 2 through July 10, 2009; the itinerary read, in part, “6/2 leave-6/3 Cleveland & Toledo maybe Detroit ... 6/14 New Orleans ... 6/24 Cheyenne Wy ... July 1 Grand Canyon, July 2 Denver, July 4th back home ... .”
In a Facebook entry dated June 1, Collette wrote that he was packing for the “BIG trip.” On June 2, he began writing about back trouble and told his Facebook friends he was going for testing at a hospital. On June 3, he wrote, “it looks like I have to hold off on my trip.”
Collette does not deny planning the RV trip — or his intention to take it, had he been physically able. He’s aware questions are being asked about him but asserted he canceled the trip because of his back, not the questions.
“It never came to fruition because of doctor’s appointments, physical therapy ... . It was wishful thinking, me sitting around bored out of my mind,” he said. “Believe me, if I could do (the tour) I would.”
Collette says he’s trapped by his back injury. He’s not bedridden or wheelchair bound; in fact he’s quite mobile once his daily pain medication kicks in. The city won’t let him return to work, he says, because he’s not able to perform all of the functions of a firefighter including heavy lifting.
He suggests he should not have to act like an invalid in order to justify the disability pay.
“The problem is that I can do many things like walk, drive, swim, travel, cook, ... travel in my RV, enjoy life and do many things without too much trouble, as long as I am taking the pain medication,” he said. “These things don’t make me any less injured.”
Collette: ‘Light duty’ is doable
Collette maintains he’d be back on the job if the city had a “light duty” policy for employing injured firefighters.
There is such a policy for members of the Lockport police union. By contractual agreement, injured officers are assigned only specific light tasks, such as communications and paperwork, in lieu of being tagged “disabled” because they can’t perform patrol duties.
There is no such written policy for firefighters.
“We have either full duty or no duty,” Collette said. “I’d come back tomorrow if they let me do dispatch, and I’d do a good job. I love being a paramedic; I can do first aid, I just can’t lift the patient into the ambulance. ... I’ve asked for (light duty) and I was denied.”
Chief Passuite said Collette never asked him about light-duty placement. If Collette had, he said, “I absolutely would consider that. It’s not a contractual item, so I’d be glad to take it to the fire board, and the union, and see if we can work something out.”
The city has, in several instances in the past, had firefighters assigned to dispatch duty exclusively when they’d lost their emergency medical technician certification and needed time to get re-certified before going on ambulance calls again, according to City Clerk Richard Mullaney.
The LPFFA contract makes passing reference to light duty but does not define it. Parker, the union president, insists the city has to “negotiate” terms before the union would allow a disabled member to be employed differently.
“The city has to negotiate (a clause), which they have absolutely refused to do,” he said. “We would entertain light duty if they want to negotiate the terms. We just don’t want the city to impose their version of it.”
According to Tucker, the prospect of light duty has been raised from time to time but the discussion doesn’t go anywhere.
“We’re certainly open to negotiating anything. The problem is, you’re not ‘negotiating’ with the firefighters unless you’re agreeing to everything they want,” he said.
The city is incurring costs beyond Collette’s sick and vacation time in order to keep his position on the second platoon covered, according to Passuite.
From March 20 through June 11, the city paid Collette $13,228, the value of 30 days sick time. It also paid about $9,800 to other officers to fill in for Collette, because the LPFFA contract requires two officers work each shift and each platoon only has three officers. When one is on a scheduled day off and Collette also is off duty, an officer from another platoon has to be called in at 1.5 times his regular rate.
A worker compensation case file has been opened on Collette but a judge hasn’t yet ruled on the claim, Mullaney said.
The last time the city argued with LPFFA about compensation for disabled firefighters, it lost.
In mid-2007, the Public Employment Relations Board ruled the city engaged in an improper practice when it cut off medical benefits a year earlier for two firefighters who were off-duty long term on disability claims.
The administrative judge in the case said if the city wanted to withhold fringe benefits such as paid health insurance from a member, it had to negotiate the exclusion with the union. She ordered the men restored to the city insurance roll and compensated for any expenses they incurred while they were uninsured.
Copyright © 1999-2008 cnhi, inc.