State Personnel Board Revokes Dismissal of CHP Dispatcher
No Evidence Dispatcher Affirmatively Misrepresented Medical Condition to Obtain Workers' Compensation Benefits
In what is hoped to be an end to a two and a half year ordeal, on November 5, 2007 the State Personnel Board issued a decision revoking the dismissal of California Highway (CHP) Patrol Dispatcher Barbara Fogarty.
In May 2005, CHP dismissed Fogarty, a ten year veteran from employment as a dispatcher working out of the Redding Communications Center. The Notice of Adverse Action alleged Fogarty was dishonest when she completed her employment application in May 1995 and had fraudulently pursued claims for workers' compensation benefits during the course of her employment with CHP.
Concurrently with Fogarty's dismissal, the Shasta County District Attorney's Office filed a criminal complaint charging her with ten counts of workers' compensation fraud based on an investigation which was conducted by CHP. The administrative case was held in abeyance pending resolution of the criminal matter.
The California Statewide Law Enforcement Association Legal Defense Fund (LDF) appointed Joe Gazzigli, an LDF Panel Attorney in Redding, to represent Fogarty in the criminal case. Given Gazzigli's reputation with the DA and Superior Court judges, it was an advantage to have a local attorney with a proven reputation handle the case. Fogarty was pleased when she learned Gazzigli had been assigned to represent her as she knew he was one of the most reputable criminal attorneys in the area.
At the preliminary hearing, Gazzigli elected to take a gamble on his defense strategy. Normally, it is only the prosecution which presents evidence at a preliminary hearing in order to determine whether there is sufficient evidence to try the defendant on the charges. The defense generally uses the preliminary hearing as a means to gain some discovery on the prosecution's case. Gazzigli elected to present a defense case and called Fogarty as well as her treating physician, physical therapist and rehabilitation specialist.
The judge dismissed eight of the ten counts of alleged fraud and the DA withdrew the remaining two counts in the interest of justice. And although CHP threatened in the administrative case that the criminal case would be re-filed, it never was. Thus, as a result of the skill and expertise of the CSLEA Panel Attorney, Fogarty was never required to stand trial for alleged criminal conduct.
Once the criminal case was resolved, the discipline case was set for hearing. I served as lead counsel and was assisted by other staff attorneys who co-chaired Fogarty's representation. The SPB case took nine days to try. 23 witnesses testified, 9 who were medical experts. Hundreds of pages of medical records were introduced.
Our theory of the case was that Fogarty had not lied on her employment application, an allegation which was also time-barred by a three-year statute of limitations. Further, the various injuries for which she submitted claims were all admitted by CHP as legitimate work-related injuries and there was no evidence that the treatment Fogarty received, including multiple surgeries, was unnecessary or excessive. Finally, we argued that all of Fogarty's co-workers, treating and evaluating physicians were to some extent aware that she owned, cared for, and rode horses.
On December 31, 2006, the Administrative Law Judge (ALJ) issued a Proposed Decision recommending the dismissal be reduced to a formal letter of reprimand. The ALJ concluded Fogarty was not dishonest in statements made to her physicians but was incorrect in two statements amongst numerous allegations spanning more than a decade.
On January 9, 2007, the SPB rejected the Proposed Decision and elected to decide the case based on the record. The SPB ordered transcripts of the administrative proceeding, invited written argument from the parties, and heard oral argument on September 4, 2007. On November 5, 2007, the SPB issued its decision revoking the dismissal and instead imposed a 10-day suspension.
The Board adopted the factual determinations of the ALJ and concluded Fogarty had made omissions during two of numerous examinations by physicians over a near ten-year time period. The Board found that Fogarty was forthcoming about her horse activities in numerous other examinations and that the examining physicians were less than diligent in questioning Fogarty as to the extent of such activities.
The SPB ordered the revocation of the dismissal and awarded Fogarty all back pay and benefits she would have received had she been suspended for 10 days instead of dismissed.
Upon receiving word of the SPB decision, Barbara Fogarty was ecstatic: "I want to thank Joe Gazzigli and the CSLEA Legal team for all they have done on my behalf. Without thier assistance making it through this traumatic experience would have been devastating. It proves the importance of being a CSLEA member. I thought that I was a good employee and never imagined I would need to utilize legal defense. Thanks to my sister for encouraging me to become a full member years ago."
For those who are interested, copies of the closing brief filed on Fogarty's behalf as well as the ALJ and SPB decision are attached at the links below.
No Evidence Dispatcher Affirmatively Misrepresented Medical Condition to Obtain Workers' Compensation Benefits
Source: Kasey Christopher Clark, General Manager/Chief Counsel
Date: 11/20/2007
In May 2005, CHP dismissed Fogarty, a ten year veteran from employment as a dispatcher working out of the Redding Communications Center. The Notice of Adverse Action alleged Fogarty was dishonest when she completed her employment application in May 1995 and had fraudulently pursued claims for workers' compensation benefits during the course of her employment with CHP.
Concurrently with Fogarty's dismissal, the Shasta County District Attorney's Office filed a criminal complaint charging her with ten counts of workers' compensation fraud based on an investigation which was conducted by CHP. The administrative case was held in abeyance pending resolution of the criminal matter.
The California Statewide Law Enforcement Association Legal Defense Fund (LDF) appointed Joe Gazzigli, an LDF Panel Attorney in Redding, to represent Fogarty in the criminal case. Given Gazzigli's reputation with the DA and Superior Court judges, it was an advantage to have a local attorney with a proven reputation handle the case. Fogarty was pleased when she learned Gazzigli had been assigned to represent her as she knew he was one of the most reputable criminal attorneys in the area.
At the preliminary hearing, Gazzigli elected to take a gamble on his defense strategy. Normally, it is only the prosecution which presents evidence at a preliminary hearing in order to determine whether there is sufficient evidence to try the defendant on the charges. The defense generally uses the preliminary hearing as a means to gain some discovery on the prosecution's case. Gazzigli elected to present a defense case and called Fogarty as well as her treating physician, physical therapist and rehabilitation specialist.
The judge dismissed eight of the ten counts of alleged fraud and the DA withdrew the remaining two counts in the interest of justice. And although CHP threatened in the administrative case that the criminal case would be re-filed, it never was. Thus, as a result of the skill and expertise of the CSLEA Panel Attorney, Fogarty was never required to stand trial for alleged criminal conduct.
Once the criminal case was resolved, the discipline case was set for hearing. I served as lead counsel and was assisted by other staff attorneys who co-chaired Fogarty's representation. The SPB case took nine days to try. 23 witnesses testified, 9 who were medical experts. Hundreds of pages of medical records were introduced.
Our theory of the case was that Fogarty had not lied on her employment application, an allegation which was also time-barred by a three-year statute of limitations. Further, the various injuries for which she submitted claims were all admitted by CHP as legitimate work-related injuries and there was no evidence that the treatment Fogarty received, including multiple surgeries, was unnecessary or excessive. Finally, we argued that all of Fogarty's co-workers, treating and evaluating physicians were to some extent aware that she owned, cared for, and rode horses.
On December 31, 2006, the Administrative Law Judge (ALJ) issued a Proposed Decision recommending the dismissal be reduced to a formal letter of reprimand. The ALJ concluded Fogarty was not dishonest in statements made to her physicians but was incorrect in two statements amongst numerous allegations spanning more than a decade.
On January 9, 2007, the SPB rejected the Proposed Decision and elected to decide the case based on the record. The SPB ordered transcripts of the administrative proceeding, invited written argument from the parties, and heard oral argument on September 4, 2007. On November 5, 2007, the SPB issued its decision revoking the dismissal and instead imposed a 10-day suspension.
The Board adopted the factual determinations of the ALJ and concluded Fogarty had made omissions during two of numerous examinations by physicians over a near ten-year time period. The Board found that Fogarty was forthcoming about her horse activities in numerous other examinations and that the examining physicians were less than diligent in questioning Fogarty as to the extent of such activities.
The SPB ordered the revocation of the dismissal and awarded Fogarty all back pay and benefits she would have received had she been suspended for 10 days instead of dismissed.
Upon receiving word of the SPB decision, Barbara Fogarty was ecstatic: "I want to thank Joe Gazzigli and the CSLEA Legal team for all they have done on my behalf. Without thier assistance making it through this traumatic experience would have been devastating. It proves the importance of being a CSLEA member. I thought that I was a good employee and never imagined I would need to utilize legal defense. Thanks to my sister for encouraging me to become a full member years ago."
For those who are interested, copies of the closing brief filed on Fogarty's behalf as well as the ALJ and SPB decision are attached at the links below.
Downloads:
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