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Date: Oct 25, 2005

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Disabled fireman racing stock cars City uses videotape to build case By Lynne Slack Shedlock 11/11/2002 Email to a friend Printer-friendly Retired firefighter chauffeur Tom Gervasi's 1995 accident left him disabled with pain in his back and shoulder. The injuries led him to retire from the city fire department, unable to work but not unable to race stock cars. Retired firefighter chauffeur Tom Gervasi climbs out of his stock car this summer at Five Mile Point Speedway in Kirkwood, NY, in images taken from surveillance videotape shot by Insight Investigators Inc. Mr. Gervasi, 49, of Mark Avenue, retired last year on a work-related disability, meaning he collects about $46,000 a year, roughly 116 percent of his active-duty salary. But he continues to race stock cars, a hobby that has attracted the attention of a skeptical city administration. "This gentleman can still collect 110 percent of his salary tax-free, but he can still be engaged in this type of recreational activity," observed Lisa Moran, the city's human resources director. The city, she said, is building a case against Mr. Gervasi with the goal of finding him a job suitable to his abilities so his workers' compensation can be reduced. "I'm not required to lay in bed all day," Mr. Gervasi shot back, arguing that his racing activities are within his physical limitations and what's more within the boundaries of the law. "However, if they wish to drag my personal life through the media to spark public perception and promote their political agenda, they better think again," he said. "Ultimately, the taxpayer will bear the burden of their ineptitude." Mr. Gervasi was injured in December 1995 when the firetruck on which he was riding was broadsided by a car. The impact smashed his foot, popped his knee out of joint, in- jured his shoulder and herniated several discs in his back. Unable to work, he eventually claimed a work-related disability and retired, receiving a standard lifetime compensation for uniformed city employees who are permanently injured on the job. He receives 50 percent of his former salary in a disability pension, amounting to about $385 a week. He also receives city-paid workers' compensation of about $500 per week, equal to 66 percent of his former salary. The weekly total, which amounts to 116 percent of his active-duty salary, is about $885 and is tax-free. But for the past two racing seasons, a city-hired investigative firm has videotaped Mr. Gervasi racing his stock car on the quarter-mile dirt track at Five Mile Point Speedway in Kirkwood, N.Y. In one tape made this summer, Mr. Gervasi is seen climbing out of the car's window after taking several laps. He has raced on at least five occasions this year, according to the track's Web site. During a Sept. 28 race, Mr. Gervasi crashed, leaving his car upside down in the path of oncoming traffic. At least one other car slammed into his, but none of the drivers was hurt, according to a report posted on the track's Web site. Mrs. Moran insisted the city's goal is not to bring Mr. Gervasi back to the fire department. The city's contract with the firefighters' union currently prohibits light-duty assignments. But it is seeking to find him a job suitable to his abilities, so that his workers' compensation can be reduced. To her knowledge, the city has never accomplished that before with a retired worker. His is one of four surveillance cases the city is pursuing. Mrs. Moran declined to release the other names. "Currently, our workers' compensation attorney is looking into litigating this issue, but workers' compensation judges have more frequently sided with the employee," she said. The city is represented in workers' compensation cases by attorney Tom Nealon, partner of Mayor Chris Doherty's brother, attorney James A. Doherty Jr. Mr. Nealon said no litigation has been filed yet involving Mr. Gervasi's racing. Mr. Nealon said of the tape: "It seemed like physical activity that was inconsistent with someone who was suffering from a chronic disability and pain syndrome." Mr. Gervasi said if city officials want to have a hearing examiner review his case under Pennsylvania workers' compensation laws, that's their prerogative. His attorney, John Minora, said virtually 100 percent of those collecting workers' compensation can still drive a car. "Race car driving isn't football," Mr. Minora said. "It's stepping on the gas and steering the wheel." Mr. Gervasi said his stock car is equipped with a seat designed by a chiropractor that includes features intended to insulate him from jarring or other actions that could cause injury. Once strapped in, he said, "You don't move at all. I have more pain driving to the track than I do at the track." Mr. Gervasi said he generally drives two half-hour races when he goes to the speedway. Meanwhile, city doctors and ergonomics experts are reviewing the tape with an eye toward proving Mr. Gervasi is capable of performing light- to moderate-duty jobs, Mrs. Moran said. Mrs. Moran said the city has sent Mr. Gervasi on a number of job interviews that should be within his physical capabilities. "Firefighting and police work are obviously heavy-duty, but obviously there are a lot of jobs that are not heavy-duty," Mrs. Moran said, referring to Mr. Gervasi and the others under scrutiny. "It doesn't necessarily mean they can't do any work. What incentives do they have to take another position?" Mr. Gervasi said he has gone to at least a dozen city-arranged job interviews -- and has also sought jobs on his own -- but none has panned out. He is continuing to pursue other work that requires some training. Mr. Minora also insisted his client has cooperated. He said the city's release of the tape is "only an attempt to embarrass him." "If they were convinced he was healthy, they would have filed a termination (attempt), and they didn't," Mr. Minora said. Pennsylvania's workers' compensation laws differ, depending on the date of the injury. In more recent cases, municipalities only have to do a job survey and indicate there is work available within a former employee's abilities to have the workers' compensation amount reduced. But Mr. Minora said Mr. Gervasi falls under the old state law, so the only way to reduce his payment is if he actually gets another job. Mr. Gervasi also maintained he was "thrown out" of his job because the administration of former Mayor Jim Connors planned to take his case to arbitration to rule he was permanently, not temporarily, disabled. At the time, he was off from work on the state-mandated Heart and Lung program for uniformed workers with temporary disabilities. "(The city's) doctor said I couldn't work there anymore," he said. To retire on a job-related disability, workers must obtain three doctors' opinions, one each representing the pension board, city and the workers. At least two must give an opinion that the individual is disabled in order to get the pension, which basically then entitles the retired worker to workers' compensation. Mr. Gervasi said in his case all three doctors agreed on his disability. In general, the city's 150 workers' compensation claims produce a drain on the budget, particularly those involving permanent disabilities. Mrs. Moran said the city relies on tips from neighbors and others to ferret out potential targets of investigation. "It's very costly to do surveillance," she said. "We can't send someone out arbitrarily." Even with tips, it is not always easy to prove a case. First, activities must be in a public setting that can be taped. Mrs. Moran said the city also has to prove numerous, consecutive occurrences of an activity so the individual cannot claim he was simply "having a good day." That is the reason surveillance of Mr. Gervasi took place over two seasons at the track, she said. Mrs. Moran said the investigation actually began during Mr. Connors' administration, and Mr. Doherty learned of it when he took office. *D.C.T. Motorsports* *#zer0 Tom Gervasi* *358 Modified* Driver: Tom Gervasi Home Town: Madison Township, PA Years in this class: 2 Web Site:D.C.T. Motorsports *Racing Moment* Winning Late model track championship Lake Moc-A-Tek Speedway, 1984 __________________

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