ALJDEC decisions subject to certification as final

19F-001-DMFD · Daisy Mountain Fire District · 2021-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jerry Knorr

Appellant,

vs.

Daisy Mountain Fire District,

An Arizona Fire District,

Respondent Agency

No. 19F-001-DMFD

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 4, 2021

APPEARANCES: Dale F. Norris, Esq. for Appellant; Jeffrey C. Matura, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On May 11, 2020, Daisy Mountain Fire District (“District”) issued a Notice of Hearing setting this matter for hearing on June 23, 2020.

The issue for hearing is Appellant Jerry Knorr’s appeal of the District’s decision to terminate then Capt. Knorr’s employment. That decision was made by Chief Mark Nichols on February 21, 2019 and was affirmed by the District’s Board on February 24, 2020.

Because of COVID, the parties agreed to several long continuances and the matter was convened on September 23, 2021. The record was then held open for submission and consideration of written closing argument.

The District presented the testimony of Mark Nichols, the District’s Chief during times at issue, who was retired as of the hearing date; and Daniel Jarrett, Deputy Chief, Medical and Health. Capt. Knorr testified on his own behalf.

As pertinent to this matter, Capt. Knorr was terminated for his failure to remain physically fit and his failure to abide by a Last Chance Agreement entered into on September 4, 2018.

Capt. Knorr began working full time for the District on February 1, 1994, and was a volunteer before that date. He started as a firefighter and rose to the rank of captain. Capt. Knorr’s last performance evaluation occurred in December 2016, and he scored all fours and fives, with five being exceptional and four being between meets expectations and exceptional.

In November 2019, Capt. Knorr applied for workman’s compensation, but his claim was denied in December 2019. In March 2020, Capt. Knorr applied for and was subsequently approved for disability retirement benefits effective in September 2021.

The District’s Rules of Conduct require firefighters to keep physically fit.

To his recollection, Capt. Knorr had never been told that his performance was not adequate based on his conditioning.

In 2017, the District adopted a written Health Center Policy that requires its employees to meet certain fitness standards. The Policy became effective in January 2018.

Chief Nichols testified to the effect that while the Policy was under consideration, labor representatives were out talking to the employees and the employees were all aware that a new policy was coming. Contrary to the Chief’s testimony, Capt. Knorr testified that he had no conversations with the union or labor representatives and he learned of the Policy in October or November 2017 when he found a draft copy of it. About a month later, Chief Jarrett emailed notice showing that the Policy would be implemented in 2018.

The District adopted the Policy in response to an upward trend in industrial accidents. Chief Nichols supported the Policy because unfit firefighters endanger themselves, their coworkers, and the public.

The District relies on the expertise of medical personnel at an outside Health Center or clinic for the medical aspects of the Policy, including conducting the medical assessments.

The Policy is in conformity with National Fire Protection Association Standards 1500 and 1582, and OSHA Fire Brigade Rules. These authorities are not law and the District was not required to follow their guidance.

Medical information obtained in furtherance of the Policy is confidential.

Under the Policy, all employees are required to undergo a yearly evaluation to assess their level of fitness. The evaluations are conducted during the month of the employee’s birth.

Employees are rated in Tiers, with Tier 1 being the fittest and Tier 4 the least fit.

A Tier 4 rating means the employee is not fit for duty.

Tier 4 employees are taken “off the trucks” and put on a light duty “40-hour week” and are retested in 60 to 90 days.

The goal is to have Tier 4 employees improve their conditioning during this time so that they can return to active duty.

Tier 4 employees are given two hours paid time per day to exercise.

Employees can stay on Tier 4 status for six months after which time the employee may be subject to discipline, including termination.

Capt. Knorr was the only employee over 50 who initially failed the fitness test and did not subsequently pass after being placed on 40-hour duty.

METs are a measure of aerobic capacity and a person’s ability to handle a work-load.

The Policy includes an age-adjusted METs level. District firefighters over 50 are required to have a MET of twelve or greater. National Fire Protection Association research with firefighters shows that twelve METs is needed for safe fire ground operations.

Employee’s METs are determined using the Gerkin Treadmill Protocol that requires the employee to run on a treadmill. There was however an option to take a walking test. Capt. Knorr asserts that the District failed to adequately advise him of this second option.

After learning of the new Policy, Capt. Knorr started to prepare. In his mind, the policy was not clear as to its meaning, but it called for a treadmill test so he began to run on a treadmill. There was no evidence adduced showing that Capt. Knorr sought clarity before he began running.

Capt. Knorr testified that running was not part of his regimen and he had not engaged in it since boot camp, but at the time he began running, he was walking five times a week and hiking.

According to Capt. Knorr, running worked at first, but then he had a foot problem.

On January 31, 2018, Capt. Knorr turned 50.

On January 31, 2018, Capt. Knorr underwent his annual evaluation and had a MET of 9.3. Consequently, Capt. Knorr was put on a 40-hour week and on February 6, 2018 he signed an agreement identifying the general expectations of his assignment. The agreement called for Capt. Knorr to be retested in or about May 2018.

The District made available to Capt. Knorr resources to help him in attaining a fitness level that would allow him to go back to active duty. These resources included working with Jensen Schell, a peer fitness coordinator. Mr. Schell is not a doctor or physical therapist.

Capt. Knorr met with Jason Schell and completed a Health Assessment Form on February 7, 2018. In the Assessment Form, Capt. Knorr reported that he was exercising three to four times per week, that he had had success running in the past, that his weight “often” affected his daily activities, that “nagging injuries” were a barrier to exercising, and that he was being treated for bone or joint problem that restricted him from engaging in physical activity.

Capt. Knorr testified that he told Mr. Schell about his physical therapy and that he had a foot injury. Mr. Schell acknowledged that Capt. Knorr had informed him, but the evidence shows that Mr. Schell was not sure if this occurred on February 7th. According to Mr. Schell, Capt. Knorr did not say how his foot injury occurred.

Capt. Knorr filled out an insurance verification form dated February 7, 2018 as a precursor to being seen by OSR Physical Therapy.

On February 12, 2018, he underwent a Full Initial Evaluation at OSR Physical Therapy. Capt. Knorr’s diagnoses included Achilles tendonitis in both legs and planter fascial fibromatosis.

On March 5, 2018, Capt. Knorr had a MET of 9.01, but this was not an official test or score.

It is not clear how many treatments or therapy sessions Capt. Knorr had for his Achilles tendonitis and planter fascial fibromatosis, but as of March 26, 2018, he was attending his sixth session. At that time, he reported that his right heel was pretty good, but the left continued to bother him.

On March 27, 2018, Capt. Knorr was admitted to the Deer Valley Honor Health facility at 19829 North 27th Avenue. He was discharged on March 28, 2018.

Capt. Knorr’s chief complaint was pain on left hip radiating to left leg. The history of present illness, provided by Capt. Knorr, shows pain in left hip that radiates down the leg.

Capt. Knorr’s final diagnoses were pain in left hip and thigh, diverticulosis of large intestine, ventral hernia without obstruction, and pain in left leg, although it is clear that the hernia was operated on prior to the March 27, 2018 hospitalization.

Capt. Knorr was also found to be chronically obese.

On April 3, 2018, Capt. Knorr had a second “initial” evaluation with OSR Physical Therapy with his chief complaint being left sciatic pain. That record shows that he was not able to walk for more than five minutes and that he was unable to perform recreational exercise.

Between April 3 and August 27, 2018 when he was discharged, Capt. Knorr had 37 visits for therapy. It appears that he did not allege pain in, or other issues related to, his Achilles tendons in any of these visits, but rather his back and leg pain was the problem.

The record for Capt. Knorr’s May 9, 2018 visit with OSR shows that the plan was to add more functional lifting and work specific activities because he was to return to work in three months.

On May 22, 2018, Capt. Knorr signed a 40-Hour Agreement 90-day with the District in which he waived his 90-day MET retest and agreed to stay on a 40-hour assignment with a retest to occur on or around August 7, 2018.

The 40-Hour Agreement 90-day shows that Capt. Knorr could be subject to the disciplinary process at the end of 180 days on 40-hour assignment.

The 40-Hour Agreement 90-day memorializes a May 7, 2018 meeting of Chief Nichols, Deputy Jarrett and Capt. Knorr, but does not include any information about Capt. Knorr’s ongoing physical therapy for lower back pain, nor does it show that he had Achilles tendon issues.

The record for Capt. Knorr’s May 31, 2018 visit with OSR shows that he had jogged across the street to avoid being hit by a car, during which he felt his left knee was going to give out. The plan was to continue with the existing plan and to add in more functional lifting.

The record for Capt. Knorr’s July 5, 2018 visit with OSR shows that the plan was to start return-to-work activity.

The record for Capt. Knorr’s July 16, 2018 visit with OSR shows some discomfort in firefighter-training drills and that his cardiovascular endurance needed work due to severe deconditioning.

The record for Capt. Knorr’s July 23, 2018 visit with OSR shows that there was no firefighter drills, with the concentration being on cardiovascular endurance.

The record for Capt. Knorr’s July 25, 2018 visit with OSR shows that the firefighter drills were resumed.

The records for Capt. Knorr’s July 30 and August 1, 2018 visits with OSR show that the firefighter drills were continuing with increasing endurance with the Gerkin Treadmill Protocol.

The record for Capt. Knorr’s August 6, 2018 visit with OSR shows that he was to see the MD on August 20, 2018 for a treadmill test and hopefully a return to work.

The record for Capt. Knorr’s August 8, 2018 visit with OSR shows that he was to see the MD on August 20, 2018 for a treadmill test and that the physical therapist anticipated discharging him the following week because his back was doing well.

Capt. Knorr’s OSR discharge record shows that he was discharged on August 27, 2018, that his treadmill test had been rescheduled for September 6th, that there was no limitation on walking, he ambulated with a normal gait pattern, he had normal Achilles reflex, he hoped to return to work but had to take the test on September 6th, he had performed the firefighter physical exam and done well in therapy, and that he had met all his treatment goals including improved left peroneal strength.

On September 4, 2018, Capt. Knorr and the District entered a “Last Chance Agreement” that gives the criteria required for Capt. Knorr to return to active duty and shows that the agreement was the result of his failure to comply with the Policy. The Last chance agreement also shows that Capt. Knorr would retest on September 6, 2018.

Under the terms of the Last Chance Agreement, if Capt. Knorr scored 12 or more, he would be returned to active duty, but if did not score 11 or more on the MET test, he would be placed on a 90-day unpaid suspension and be retested after 90 days.

On September 6, 2018, Capt. Knorr retested, but did not achieve a MET of greater than 12, and although not explicit in the record, he did not score more than 11 either.

On September 7, 2018, Capt. Knorr was transported and admitted to JCL Deer Valley hospital, where his diagnoses were bradycardia unspecified, syncope and collapse, headache, and gout. He was discharged the following day.

Through an email dated September 18, 2018, Capt. Knorr asked Mr. Schell if he had information about the walking treadmill test. Mr. Schell responded to the effect that he had no specific information, but was of the understanding that there had been few positive outcomes with that test, he urged Capt. Knorr to reach out to employees who had taken the walking test, and he told Capt. Knorr to reach out to him if the Capt. wanted to work out or take any MET practice runs.

There was no evidence showing that Mr. Schell did provide Capt. Knorr with any additional information regarding the walking test and there was no evidence adduced to show that Capt. Knorr followed up with his peers or with Mr. Schell.

On September 27, 2018, Capt. Knorr had an Initial Evaluation with Harper Physical Therapy at which time his diagnoses included pain in left ankle and foot and Achilles tendinitis in left leg. He reported that his symptoms had been increasing over the last month as he had been trying to train/run for an upcoming firefighter physical-performance test. The physical therapist classified this as a new injury.

Capt. Knorr reported to Harper that his primary goal was to achieve pain relief and improved calf strength to transition back to running and firefighter training activities; he denied any past injuries that would affect the plan of care. The therapist called for physical therapy two to three times per week for four weeks.

Between September 27 and December 18, 2018, Capt. Knorr received therapy at Harper twenty-four times.

On November 1, 2018, Capt. Knorr submitted a worker’s compensation claim. As a result, Chief Nichols stopped any pending disciplinary action.

On or about November 2, 2018, Capt. Knorr saw William D. Fishco, DPM at which time he reported pain in his Achilles and the back of his left heel and that his foot had been a problem since he had to start running for the fire department. He also reported that he had had a similar problem in 2009. He was given a note showing he was to do no running.

Capt. Knorr’s Harper Physical Therapy notes show that on December 18, 2018 he reported that he was feeling steady improvement in Achilles tendon pain and that he was getting closer to returning to work as a firefighter.

Capt. Knorr’s December 18, 2018 visit to Harper was his last until he underwent a second “initial” visit in May 2019.

On December 18, 2018 the District’s insurance carrier informed Capt. Knorr and the District that Capt. Knorr’s workman’s compensation claim had been denied. The denial information shows that the claim could be reopened if new information came to light. Capt. Knorr had 90 days to file any appeal with the State. Capt. Knorr did not file any appeal.

On January 10, 2019, Capt. Knorr, Chief Nichols and others had a meeting at which they discussed two options: that Capt. Knorr would retire or he would take a year of unpaid leave during which he could to train to pass the MET test.

Through an email dated January 15, 2019, Capt. Knorr informed the Chief that he was declining both options, stating that he did not believe the Policy was fair. Capt. Knorr requested to be put on either a 40-hour or 56-hour schedule or that a hearing with the Board be scheduled.

On January 19, 2019, Chief Nichols, through Deputy Wilson, informed Capt. Knorr that he was required to retake the Gerkin/MET test on January 24, 2019, and that if he did not, or if he did not score 12 or more, he would be subject to discipline including being fired.

Through correspondence dated January 22, 2019, Capt. Knorr informed Deputy Wilson that he would not be taking the test and as to his belief that he was not cleared by his doctor to do so.

Through emails on February 20 and 21, 2019, District personnel including Deputy Jarrett and Mr. Schell discussed with medical personnel from the clinic/health center the walking option, which was identified as the Balke test. Linda Filion, RN informed them that the health center used that test on rare occasions and only for those who have legitimate chronic lower extremity issues that they do not want to aggravate.

Ms. Filion noted that the health center did not like the Balke test for many reasons, including that it is a maximum test. She also noted that although there was a perception that the walking test made it easier to hit the METs, this was not correct, in many ways it is more difficult, and the center was finding that it was not a good option even for those with chronic ailments. Most people who took the Balke test failed to hit the METs required, just as they would have under the Gerkin test.

Ms. Filion added that the Gerkin test was developed specifically for use with public safety/firefighters. She added that the center never offered the Balke test, but considered it only when asked, and in those cases they tried to educate the member as to why that test is not a good option. The center had recently adopted a CPET/bike test and would no longer be offering Balke to anyone.

In a February 21, 2019 email to Mr. Hyland at the clinic/health center, Deputy Jarrett summarized a discussion the two had about the issue and confirmed that the Gerkin running test would be the default and preferred test, but employees could be prescreened and then approved for the walking test after being properly educated about the two tests. The belief was that an employee who was fit should be able to pass either test. Mr. Hyland confirmed that the Deputy had properly summarized their discussion. He added that the belief was that the walking test was not as safe as the Gerkin test and that safety was always the first consideration.

Through a February 21, 2019 Memo of Termination, Capt. Knorr was informed that he was being terminated for reasons including failing to comply with the Last Chance Agreement and violating Policy 102.01 #9 that requires firefighters to keep themselves physically fit.

Chief Nichols informed the Board that Capt. Knorr had been issued the termination notice and that Capt. Knorr alleged that an injury hindered or prevented him from achieving a passing MET score.

Through an email dated April 24, 2019, the Chief was informed that the Board was calling for an independent medical exam of Capt. Knorr.

On May 16, 2019, Capt. Knorr had a second “Initial” Evaluation with Harper Physical Therapy at which time his assessment included Achilles tendinosis in left leg. Between May 16 and September 8, 2019, Capt. Knorr had fourteen physical therapy sessions with Harper. Capt. Knorr was discharged from Harper on September 8, 2019 for lack of compliance in that he was missing appointments and not responding to the Harper’s attempts to contact him.

As requested, Chief Nichols arranged for an IME that took place on June 5, 2019.

On June 6, 2019, the IME physician issued a Fit for Duty Examination Report. That report shows that the purpose of the IME was to see if a left ankle injury would prevent preparation to successfully pass the required evaluation.

The Fit for Duty Report shows that Capt. Knorr’s current diagnoses included chronic obesity; tight hamstring and Achilles tendon complexes with contracted equinus deformity of both Achilles tendon insertions (preexisting); posterior calcaneal heel spurs; plantar heel spurs; and Achilles insertional tendonitis, rule out micro-tearing.

The IME doctor concluded that Capt. Knorr’s symptomology did prevent him from preparing for and passing the required evaluation, but he noted that Capt. Knorr’s gross obesity was a factor in that conclusion.

The IME doctor recommended an MRI to rule out the Achilles tendon tear. Chief Nichols arranged for the MRI.

The IME doctor then prepared a June 17, 2019 Supplemental Fit for Duty Examination Report showing that Capt. Knorr’s left heel symptomology was a direct result of factors including severe obesity, overall total body deconditioning, unusually tight hamstrings, and chronic preexisting Achilles tendinosis.

The IME doctor recommended giving Capt. Knorr another chance to pass the MET evaluation, with at least eight weeks to train.

At a meeting on December 19, 2019, the Board agreed with the IME doctor’s recommendations and offered Capt. Knorr that opportunity.

On December 20, 2019, Capt. Knorr informed the Board that he was declining its offer.

At the meeting on February 24, 2020, the voted to uphold Chief Nichols’ disciplinary action terminating Capt. Knorr’s employment.

On March 12, 2020, Capt. Knorr filed with the Public Safety Personnel Retirement System an Application for Disability Retirement. Capt. Knorr gave as the nature and cause of his disability that he had injured his back, left leg and foot, and was not able to pass the District’s physical standards.

As part of the PSRS disability determination, Capt. Knorr underwent an IME on April 28, 2021. That IME showed that Capt. Knorr reported that his injury occurred between 2018 and 2019, but the doctor concluded that his specific injury occurred in November 2019.

In a Determination dated August 4, 2021, PSRS determined that Capt. Knorr qualified for an accidental disability effective as of September 1, 2021.

The District’s Personnel Injury Management Policy requires reporting injuries to supervisor as soon as possible, getting medical care, or reporting to the administration.

The parties disagree whether Capt. Knorr complied with the Personnel Injury Management Policy, with Capt. Knorr pointing to his interactions with Mr. Schell and the records related to those interactions and the fact that while he was on the 40-hour assignment, Chief Nichols was his supervisor and he knew that Capt. Knorr was going to physical therapy.

The District’s position is that it was not aware until November 2019 that Capt. Knorr was alleging any injury that would hinder his ability to pass the Gerkin/MET test.

Deputy Jarrett testified that he would not have been informed of Capt. Knorr’s medical information obtained during his interactions with Mr. Schell because that information is confidential.

Capt. Knorr presented no evidence specifically showing that he had complied with the Injury Policy.

CONCLUSIONS OF LAW

The Office of Administrative Hearings and the District have an Intergovernmental Agreement (“IGA”) that calls for OAH to conduct hearings for the District. See Ariz. Rev. Stat. § 41-1092.01(J)(allowing such agreements).

The IGA and District Policy 102.04C (Grievance Process) show that hearings are to be conducted following A.R.S. Title 41, Ch. 6, Art. 10 and A.A.C. Title 2, Ch. 19, Art. 1.

The parties disagree who bears the burden of persuasion.

This matter is essentially one of discipline, which is in essence a penalty. Consequently, the District bears the burden of persuasion. See Ariz. Rev. Stat. § 41-1092.07(G)(3) (agency bears the burden of persuasion on the imposition of penalties). But a party asserting an affirmative defense bears the burden of proving that defense. Ariz. Admin. Code § R2-19-119(B)(2).

The standard of proof an all issues is that of the preponderance of the evidence. Ariz. Admin. Code § R2-19-119(A).

A preponderance of the evidence is evidence that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary 1373 (10th ed. 2014).

Substantial evidence is evidence that a reasonable mind would use to reach a conclusion. See Mealey v. Arndt, 206 Ariz. 218, 76 P.3d 892 (App. 2003).

The District made a made a prima facie showing that its decision to terminate Capt. Knorr’s employment was appropriate based on his failure to maintain physical fitness and the terms of the Last Chance Agreement. Capt. Knorr did not present substantial evidence to overcome the District’s showing.

The District’s Policy is based on guidance from the National Fire Protection Association and the OSHA Fire Brigade Rules, and the evidence shows that firefighters with METs of less than 12 are not safe. Although Capt. Knorr asserts that the Policy is not sound because it initially allowed only 90 days to come into compliance, he presented no substantial evidence to support that assertion. And in this case, Capt. Knorr was not terminated until February 24, 2019, over a year after he first failed the fitness test.

Capt. Knorr asserts that the Gerkin test was not appropriate, but that assertion is undercut by the fact that he was training for that test while in physical therapy at OSR and by the health center email showing the Gerkin was specifically designed for firefighters and safety personnel.

Capt. Knorr also asserts that he was injured because he was running to comply with the Policy, but the medical records show that any injury was caused at least in part because he was obese, he has a host of other medical problems, including Achilles tendinosis, and he did not qualify for workman’s compensation.

Although Capt. Knorr did qualify for a disability retirement, the PSRS IME records show his disability did not occur until November 2019, which was after he was terminated and about twenty months after he first failed the MET test.

Capt. Knorr asserts that the District should have told him about the walking test, but he knew about that test in September 2018 and there is no evidence to show that he followed-up to learn more about that option or that he made any request to take that test. Moreover, the District was justified in using the Gerkin test in light of the clinic/health center’s position and considering the Gerkin test was designed for firefighters.

The District has met its burden to show it was justified in terminating Capt. Knorr’s employment.

ORDER

IT IS ORDERED that the District’s decision to terminate Jerry Knorr’s employment is affirmed and that his appeal is denied.

-54864001

001

-137160-45720000Done this day, December 6, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Brian Tobin, Fire Chief

Daisy Mountain Fire District

41018 N. Daisy Mountain Dr.

Anthem, AZ 85086

Jeffrey C. Matura

Barrett/Matura, P.C.

8925 E. Pima Center Parkway, Suite 100

Scottsdale, Arizona 85258

Dale F. Norris

Law Office of Dale Norris, LLC

517 W. Monte Vista Rd.

Phoenix, AZ 85003

-54864001

001

-137160-45720000