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CITY OF MIAMI. FLORIDA
INTER -OFFICE MEMORANDUM
JTseph Grassie
City M-��"�'r
Oe age F. Knox, Jr.
City torney
bATE December 9, 1976
sufitct: Gustavo Zeno2
'EI46L6SUttEb:
;h reviewing Mr. Gustavo Zenoz's file, it appears that:
1. He had a hearing before the Pension Board of the City
of Miami on February 27, 1975. Attached is a cover sheet used in
that hearing. Based on that cover sheet, it appears that Mr.
Zenoz's application for disability pension was denied.
2. A rehearing was requested and granted Mr. Zenoz, and
the rehearing was held on April 25, 1975 before the very same board.
At that rehearing the board instructed the secretary to send the
medical reports back to the doctors for further clarification.
3. Following the submission of the medical clarifications,
`there was another hearing on May 30, 1975. At that hearing the
System Board voted to deny Mr. Zenoz an accident disability pen-
sion.
PILE:
4. On July 24, 1975, Mr. Zenoz had another full rehearing
on his case. At this rehearing he was represented by Mr. Norman Ciment,
Esquire. A full transcript of this hearing is available. After
rehearing all the evidence presented by Mr. Ciment, Commissioner
Plummer asked the board: "Is there a motion?" Since no board
member responded, apparently no one on the board wished to either
rehear the matter or change the board's previous decision.
5. The City Commission apparently requested that the City.
Attorney's Office look into the matter of Mr. Zenoz's application.
On April 2, 1976, former City Attorney John Lloyd sent a memo
to Commissioner Manolo Reboso, which once again re-examined the
facts. That letter is attached herein.
7
40§tph Orassie, City Manager
December 91 197e
6. On August 29, 1975, the City of Miami, et al., was served
With a lawsuit, filed by Mr. Zenon regarding this matter. That
suit continued until October 28, 1976, at which time the city`s
tbtion for summary final judgment was granted by Judge John Red bake,
terminating legal action in Circuit Court.
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PM ‘t.. MIAStl, VI.(iit11).k 33135
PRbith hAMnN LOPgi_,
IttliNA MALL
ti.kMitNft INCLAN
HONORABLE MANOLO REBOSO
City Commissioner
City of Miami
nO0 Pan American Drive
Miami, Florida
Re: GUSTAVO ZENOS vs. CITY O' MIAMI
tr
TELEI'll()N1::11,Silt.i.Ctil;.11:13 $
Dtember 13, 1976
Dear Mr. Reboso:
Please be advised that our law firm has been
retained by Gustavo Zenos, to represent him in connection
utith the above captioned matter.
It is our understanding that Mr. Zenos has written
you a letter requesting that this matter be set on the
Agenda to be heard at the Commissioners' meeting scheduled
on December 18, 1976.
The purpose of this letter is to request that the
matter be taken off the Agenda and be rescheduled to be heard
at the next Commissioners meeting, due to the fact that we
have just been retained as counsel and therefore we have
not had sufficient time to prepare our argument.
matter will be most appreciated.
Your courtesy and cooperation in rescheduling this,
Very truly yours,
LOPEZ & SALDISE
Teresa Saldise
HAND'DELIVERED
iM9111,
!MK
!Milk
Tat
ON APPL)C../ .TION f=OR DI5A13iL 1l-Y RE
5nard of trustees
The Miatni Ciy Ernploye.rs' Retlrr.tpnent System
fw{ie yi, Florida
F Pb rL. wT",' 12
(bATEE OF APPLICATION)
19.75.
the
(TITLE A3 IT APPEARS ON PAVROLLI
SUb2equent to the above date, applicant was examined by Doctors:
• .� 1 1 n r .
IrfEM N T
u
A
Gustavo it. Zer.o�
!NAME OC APPLICANT)
Pr1l,1t^P
- • -t , '1 ... -' ,r
IOEPARTMENT A CIv15ION1
Irs
And os the result of such examinations, and after due consultation, the Medical Board respectfully reports
and recommendations:
)C DIAGNOSIS
its conclusions
rd .-q I.L-i s.,� cp '"� Q�� e&4
r
POSITIVE PHYSICAL FINDINGS:
czat
FILL iN "A" IN ALL CASES, AND ALSO "l3" or "C", WHICHEVER 15 APPLICABLE,
AND PERMANENTLY DISABLED.
- A. State here wh!•ther or not applicant is totally end permanently incapacitated for further
Police 3er-� nt
IF APPLICANT I5 TOTALLY
performance of duty, as a
Date:
3/2 tS% Yes
ries17— No
STATE YES OR NO
CROSS OUT ON
Yes.? — No
(Fide copi•s of this report are enclosed. Two copies are to be signed
One copy is retained for each Doctor's file.)
MD
M.D
M.D
r`etoord Secretary.
B. If disability is the result of a specific accident occurring in the line of duty, so state here, and *hot accident.
C. If disability is
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the result of heart disease, hypertension, or tuberculosis, so state here. �! //t
' t 1
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V
CITY OF hIAMI
RETIRMENT BOARD MEETING
In the Matter of:
GUSTAVO ENOS,
-vfi
CITY OF tLIAItIIIPLOYBg8 .e:
RETIRIZIEtir sYSTM4.
-46 .... 4 .. . 66 66 r 66 4 4 4 66 64 46 4 66 46 4 416,
Transcript of proceedings had in the above -
styled matter, heard at Dinner Key City Ha11, Miami, Florida,
on Friday, July 25, 1975, commencing at or about 2:00 o'clock
P.M., with the following umbers of the Board present:
ALSO PRESENT:
J. L. Plummer Chairman
Joel La rken
Edwa rci
D. Prince
Vinc e Grimm
RA)bert Jennings
Robert Birtzel
Char les Salerno ,
RON SILVER, ESQ.,
Assistant City Attorney
NORMAN CINENT, ESQ.,
on behalf of Employee.
BERNICE SESS, Court Reporter.
aglINICE $ESS
COURT 'FIEPORTE11
tql1AMI sses.c.H I-LC*110A
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WHEREUPON, the following proceedings were had:
Mr. Plummer read a letter from Norman Ciment,
Esq., dated June 26, 1975, requesting a rehearing.
MR. PLUNDER: We're always happy to have
someone from across the bay come and join us, so if you will
proceed, sir, in making your request.
MR. cn1ENT : I'ru Norman Ciment of the firm of
Grover, Ciiuent, Weinstein & Stauber, 820 41st Street, Miami
Beach, Florida. I thank you for the opportunity you've
accorded us in cowing here today and requesting this rehearing.
I would like to briefly, in chronological
order, give you a short synopsis of the history concerning
Sgt. Zenos.
His original accident took place on October
12th, 1962, which is approximately thirteen years ago. It seem
to we from perusing the material that was given to me that ther
was a question at the last Board Meeting as to what Doctor
Harry Bel ler weant when he wrote his opinion on this report.
Subsequent to that, this Couauission saw fit to
turn it back to Doctor Beller asking him for a clarification
as to why he wrote in his last report exactly what he did.
I would like to read to you from his reply to
your request.
He states in the letter dated May 5, 1975:
"You will note though in the reports of both
Doctors Cullipher and Gregory the indefiniteness of findings
to substantiate this pathology".
RERNICE SESS
COURT REFOPITLR
MIAMI BEACH 0,LORIt7A
Now, because of that one statement, I want to
give you the chrohologic:a1 history of what has taken place.
As fat back as 1968 Doctor Duke Baird found nu atrophy, and
I'd like to explain, and I'll take it upon myself.
Atrophy is an objective finding, gentlemen,
it's not subjective. What atrophy means is that if a person
has a fifteen inch thigh, and the other thigh is thirteen
inches, it's something that he couldn't have created by himsel
it had to cou:e about from something.
He found no evidence of atrophy in 1968, but
he diagnosed that far back the possibility of a disc.
MR. PLUMMER: Excuse me Mr. Ciment, let we put
this in prospective, sir, you're arguing the case.
MR. CIMENT: No sir, because 1 would like to
repeat to you if I ► ay, Mr. Chairman, the specific item that
Doctor I3e11er bases his opinion on
MR. PLUMMER: Excuse me, let me put it in more
prospective, sir, so that I may help you. I'm only doing it
for proper procedure, that I believe before we hear from you
we will have to have a motion of this Board to reconsider, and
it would be based on your contention of a misinterpretation of
the medical reports.
Then if this Board wishes to listen to you,
then we would listen to you argue the case. I didn't realize
it, but I believe proper prospective would be, because we are
'under a six month rule for re -application.
I understand the particular merits of your
t3ERNICE SESS
COUrtT HEPONTtU
tdIAMI Ea ACti FEOHIUA
client's case that he wishes, of course, to be considered unde
the old rules. So since the previous action of this Board was
negative for your client, I think the Board would have to
entertain a motion for reconsideration before I can allow you
to argue the case.
At this time you heard Counsel state he feels
there were certain discrepancies involved in the original hear-+
ing, and it will be the ruling of the Chair, unless otherwise
over -ruled, that we'll take a motion for reconsideration at
this ti►e to allow Counsel to argue the case.
Is there a motion at this time for reconsider-
ation?
MR. LARKEN : The last time the Board heard the
case what status was it in at that point? Was it merely to
request that we receive additional medical reports?
r1R. PLUMMER If I'm not mistaken, Mr.
Secretary, correct me, that it was a denial by this Board, and
that's where it presently is, a denial or this Board.
Let me say to the members of the Board, just
because we make a motion to reconsider doesn't necessarily mean
whether we agree or disagree, it's just a formality of allowing
this wan to present his case.
Once again I ask is there a reconsideration by
this Board to reopen the case of Gustavo ?.epos?
MR. LARKEN: I would like to suggest that
perhaps the Secretary be instructed to provide this Board with
'eat s.:l,: material that pertaf r.s to this case. I don't have any-
C..t CE SESS
t ;,UfiT I-terO111FR
.. At.. _ i Ft
thing in my rile to give dignity to Counsel's remarks of what
took plane.
MR. CTi1INT: I have prepared for you gentlemen
a complete synopsis. of the reports of all his treating doctors,
and the basis for our request is very simply this.
I firmly believe, it's not that I believe, it's
that five other doctors who have been authorized by your City
td treat this man wrote reports that were misinterpreted, u►is-
Construed, and u►isquoted by Doctor Beller.
And if you went back and asked Doctor Beller
for a clarification, which he did nut give you, and I have it
in his own writing, and that's the sole basis that we're here
today is requesting that you reconsider what took place at the
lAst hearing.
MR. LARKEid: Mr. Chairu►an, I'd like Mr. Prince
to determine at this point legally, si:ice this Board has denied
this application, as to whether or not we can even have a
motion to reconsider to take any action that was legally put
in the form of disability.
MR. PLUMMER: Mr. Silver.
MR..SILVER: The determination is that the
Board does have the discretionary authority under circumstances
such as these, where we're not going to have any additional
information presented, but we're just reviewing what has been
press:rated where Counsel has brought forth that we may have
'misapplied or misinterpreted a particular position, only under
Oloie c2 rCt!!vstancs .
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1
We cannot hear any additional evidence, or any
additional presentation other than what we had already received,
but we can, if this Board does desire, and it's within its
discretion whether or not to grant the reconsideration based
upon what Counsel has in writing.
MR. PLUMMER : In other words, in simple language,
he will just have the opportunity to reopen the case is what
you're saying?
MR. SILVER: No, we're not going to reopen the
case:. What we're going to do is if you grant a rehearing, only
reconsider what has been presented.
MR. PUJi•li•1ER: Once again I ask is what is the
pleasure of this Board?
MR. JARENKO: I'd like to offer a possible
solution to this. What if Doctor Gordon reviewed these
opinions, and made a recommendation to the Board next week?
MR. PLUMMER: Is that within the purview?
MR. SILVER: No. Mr. Chairman, these are the
old rules, and the only people that can render an opinion about
this is the Medical Board. Now, if somebody on the Medical
Board wants to put it to Doctor Gordon, they can.
MR. PRINCE; In other words, another way would
be, correct mU if I'm wrung Mr. Silver, for this Board to
accept and waive the six months waiver or rule, and allow him
to ►;:eke: application, which then he would come under the new
'rule, and then Doctor Gordon could review this case, is that
correct/
LiERNICE SESS
coUNT h PONTF.N
MIAMI BEACH FLOHIDA
1I . g1LVI R: That's correct.
111(. P1IR1z•MER: That would be the option Of the
MIt.' GfMEN'T : That's not what we're requesting.
MIS. SALERNO: To accept the motion to reconside
Would that have to come from a Board member that voted origi-
nally?
MR. SILVER: (No. )
MR. SALERNO: I move to reconsider.
MR. PUJ U1ER: There's been a motion to
reconsider by Salerno, is there a second?
MR. PRINCE: I1r. Silver just gave a ruling
that parliamentary procedure is such that it does require one
who has voted to wake this motion for reconsideration.
If we're operating unuer the rules of
parliamentary procedure: and following the rules of the Board,
then I tLink, 1.1r. Silver, your ruling; is in error.
MR. SILVER: I'm trying to ascertain whether
or not we are reconsidering the vote, or just granting the
hearing to consider an interpretation of the evidence.
MR. PLUMMER: Do you want to reopen it and hear
what the attorney has to say, or don't you? Isn't that
essentially your motion, whether it's to reopen it, or re-
consider, or whatever it is, essentially Mr. Salerno's motion
is to listen to the attorney make his presentation today.
What is the pleasure of this Board?
I+IR. lARKEN : The question is what is this Board
BERNICE SESS
COUNT t1ENOkT1 H
++, Aj4I t,EACN FL OHHIOA
nio•IIIIM•I111
ecpected to do afters the presentation?
Mk. PLUMMER: In other Words as I understand it
this mat Would like to put in additional evidence supporting
his case that. this Board did not act properly in the evaluation
of the medical report, and I'm sure that the attorney has
evidence which he feels will justify that position. Additional
information, not additional evidence, additional justification
of why this Board did not act correctly.
MR. IARKI N : Well, would this Board then take
that inforaation under. advisement? These files don't reflect
the original contents of the case.
MR. CIJ•IENT : What I'ui saying is if you let me
present it to you, you can take it under advisement. You can
even ask your own physician to help review with you and give
yuu an opinion that you can render the next time you meet.
MR. SILVER: They cannot give it to Doctor
-
MR. PLUM MER: The motion is seconded by Mr.
Prince. Call the roll.
MR. LARKEN: Is the motion to listen to the
presentation and take it under advisement, is that the motion?
MR. PL.UMMER: No -- the motion is to listen to
the attorney make his presentation. Whatever this Board wishes
to do after that, take it under advisement, reopen it, or
whatever cue are legally empowered to do we can do, but all he
wants to do now is to have the opportunity to present socue
different justification why he thinks this Board acted in error
BERNICE SESS
COURT REPORT ER
MIAMI HEAC>I FLO$IIA
that's ail he wants to do,
Gall the roll. The VOt°e Waa five to two in
favoti of the motion.
hllt. C1ditENT: Basically, I want to just repeat
one sentence:
You will note though in the reports of both
Doctors Gullipher and Gregory the indefiniteness of findings
to substantiate this pathology.
That is what Doctor Beller quoted from their
reports, and that's what he based his opinion on.
Briefly in short chronological history, in
1968 Doctor Duke Baird found no evidence of atrophy on this
individual.
In 1972 Doctor Ortiz said that the patient
h.id symptoms of a disc rupture.
In 1975 of May, Doctor Ledford Gregory, one
of the physicians that Doctor Beller quoted, states that in
his exLu in«tion it reveals that objective corroboration of a
herniated d_i:;c appears. Objective corroboration this is
not subj`ctive.
you cannot
Subjective is where someone says in person
measure pain. Objective is something that you can
medically see for yourself as an objective finding. This is
Doctor Gregory.
Doctor c.ullipher in 1larch of 1975 recommended
reti;'eaaent. He found that there was a tremendously large
psychological overlay on this particular individual. He
BERNICE SESS
COUNT REPORTCR
♦1�AMI 9EACH FLORIDA
r
1014
4.„
foufid objective findings of atrophy which did not exist in
1068 when Duke haird examined him.
He found extreme tenderness, and stated that
this patient, and I'quote, "probably has a lumbar disc".
Doctor Diaz-Padron, a neurosurgeon who had beet
treating him, ordered an electromyographic study to be taken
of Sgt. Zenos. The el,dctromyographic studies were positive,
gentlemen, an objective finding.
Ue fouad positive evidence of atrophy, sub
sac what Doctor Culliphet found. The question of
atrophy i vil$:ro one vhigi- is taller than the other, and over
vi...4o'ri le c.::.-omx.crene of 'ills thigh has
, now cmo,' 1)0te.:LI CWO and three inches
ii
One of the key reports is Doctor Ledford
Uregory wherein he stated; "In my opinion the wan should 'have
a myelogram, ad should consider himself for surgery, as I feel
the odds are fairly good that he might be rehabilitated to
continue his duty as a policewan.
However, one cannot wake a wan do that. In the
event this wan refuses a myelograw and surgery, it is still my
opinion :Ifter review of Doctor Beller's further report that he
is incapacitated fur further duties as a police officer.
Incidentally, my own findings reveal objective
corroboration of the diagnosis of a herniated disc".
Gentluelen, with all due respect, there are five
!-:C'AVA rh, Utt14.,10 a disc in this
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man. mats . Aft electrotuyographic study clearly shows that there are
positive Findings -., atrophy is evident and has been increasint
and one of the: reports that Doctor Kurzner issued he stated
that if this condition were to continue without. Sgt. Zenos
submitting to surgery, and you have the report in his files,
his condition would become irreversible. This man could blow
a disc and become paralyzed because he doesn't do something
about it.
Now, for Doctor Beller to take reports that
all you gentlemen have in your file, and to actually misquote
objective findings and say that none exist, is something that
Y cannot fathom.
And it is because of this, and because of all
the objective findings that du exist, and for one other reason,
you are bound by the code that was created by the City Conrnissi
which states that if two out of three doctors who are on the
Examining, Board find that a man is incapacitated, this man
should be retired.
And two out of the three physicians did exactly
that. They found that he should be retired because he had
objective findings of a disc.
That's aside froiu the fact that there were
three other doctors, one of which is a neurosurgeon, who also
found objective findings, and said that this man does have a
disc.
And it is because of this, gentlemen, that I
respectfully request that you reopen this case, review the
F7._- A••'CL SESS
CO•s is REF•CRTcR
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12
teports that I have quoted, and render a decision that is fair
for a man that has put: its as many years as he has with the
City. I thank you.
MR. PLUM11ER: What is the pleasure of this
'hoard at this time?
MR. I.ARKEN : I have a question. Although he
has had an electromyogram, has he ever submitted to a myelograu
MR. CIFIENT : No sir.
MR. PLUMMER: Do you wish to expound on that
as to why?,
MR. CIMENT : Yes sir, I would like to expound
Gentlemen, here is something that I happen to
have: more personal knowledge about than probably most of you.
I sat as a Judge in the Industrial Claims Court for three years
which deals with nothing but cases like this, Worktens' CQwpen-
sati.on, and t Le two biggest problems that you rind with people
like Sgt. Zeno are:
Number one, fear that they could become further
incapacitated, which as you know, nobody can tell you that
you're guaranteed a cure if you go under the knife.
And secondly, and worse than that I hate the
fact that he's in the room, but they could go into a psychiatri
overlay as a result of the injuries that they sustained if they
don't undergo surgery.
Doctor Padron, as well as the other doctors,
submitted that they will not perform a utyelograw unless he sign
OE_RNice sgss
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13
and agrees to go for surgery immediately thereafter. A
Inye1ogruru is an extremely dangerous procedure. It's a matter
of putting you on a table and inserting a dye into your spine,
and there's a lot of complications that could come about as a
result of it, and they will not do it unless he'll agree to the
surgery thereafter.
MR. LARKEN : Would you expect him to risk the
chance if the pain would be diminished?
MR. CIAIENT : A myelogre.ru is not a cure.
MR. LARKEN: I didn't say that. If the
myelogram, came up positive: then of course there would be no
question at all. If he then went into surgical intervention,
of course then perhaps there would be a chance that his dis-
ability would be diminished,
MR. CIMENr: That's a very good chance. There'
also a chance that it could come about that it could be worse
for him.
But the problem is that if you check with the
Industrial Claims Court, I have had fifteen thousand cases go
through my particular court in three years, and I would say
that everyone who had a disc that was diagnosed by eug, or with
objective findings such as atrophy and what have you, these are
objective: findings, these are things that just don't come about
by themselves, you can't wake atrophy on a thigh.
You cannot produce false resaits on electric
frum an etcctrou►yuLraphic study.
Pal. i V: me: to you -- there's a doctor
r3 Rts:.E S .SS
CUUFtT ftEFOHTLFt
MIA113 6eACH f'LOHtDF
14
here, and I'm sure he can verify it off the record, a
myelogram is only eighty five percent accurate. There are many
many cases that have discs that are not found on myelograais,
and subsequent to the taking of a myelogram which is negative,
a docior will say We want to do an exploratory, and it's only
then :het- they will actually find the damage, if any, that
exists.
So that a myelogram is not a hundred percent
procedure, whereas an electrontyograph is between fifty and
sixty five percent, and here they found objective findings on
this man.
Board?
MR. PLUNL•II R: What is the pleasure of this
No action -- it doesn't take a vote. If I
hear no motion I will assume there is no action to be taken.
Is there a motion? Is there a motion?
Mr. Ciuuent, there is no motion.
MR. CIAtrar : Gentlemen, I thank you for the
privilege.,
A
Thereupon, the hearing was concluded.)
SCSS
COURTREPORTFR
M AM1 UEACH FLORIDA
MN
1 1171-1
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CERTIFICATE OIL REPORTER
STATE OF ORIUA
LSS t
COUNTY OF DADE ).
is BERNICE SESS, a Notary Public for the State
of Florida at Large, do hereby certify that the preceding 14
pages constitute a ti.ue and correct transcription of my
stenographic notes of proceedings had before the City of Miami
Retirement board in the foregoing viatter, in the City of Miami,
County of Dude, State of Florida.
Dated this 2nd day of August, 1975.
itRNICE SESS
TO
CrtY OF P".‘.j FI_.Or'�la
INTEEtxCiFFICE MEMORANDUM
#onOra ile Menolo p,eboso
CeitiMiesioner
'ohm 8. Lloyd
City Attorney
April. 2 t 106
Disability retirement of
Gus Zenos
tNCLosuaEC.
PILL
We have reviewed the file concerning Mr. Zenos' application for ac-
i.dental disability retirement.
As provided in the ordinance governing retirement benefits, Mr • Zenos
was submitted to a medical board of three doctors for examination and
recommendation concerning his claimed total disability. The function
Of the medical board was to determine: (1) did Mr. Zenos suffer from
a total permanent disability which was continuous and (2) if so, was
that disability the result of an accident occurring on duty at a
specific time and place.
The medical bc.-rd reported their opinion that Mr. Zenos was suffering
from a degree of disability and specifically rejected any finding
that the disability was the result of an accident occurring at a
specific tire and place. Two of the three doctors indicated on the
cover sheet of their report that Mr. Zenos was disabled and should
be retired. However, a reading of the entire narrative report of
the doctors revealed that their opinion did not support a conclusion
that Mr. Zenos was totally and permanently disabled. The medical
board did recommend further examination by a psychiatrist because
of their concern that Mr. Zenos problems could be psychosomatic.
Mr. Zenos was advised at the hearing, by Mr. Silver, the legal ad-
visor, that the medical board had not found him to be totally dis-
abled as the result of an accident and therefore the board did not
consider approving Mr. Zenos' application for accidental disability.
The board did review the entire file and found, by a majority vote,
that Mr. Zenos was not disabled to the extent required to entitle
him to be retired for ordinary disability.
Mr. Zenos, throujli his attorney, continues to reiterate that he
is disabled and should be retired. He has initiated a lawsuit
litigating this position. He is suing for accidental disability
retirement to which he is not entitled.
EMBE
f
mONIF
:1
Ro ibrab1.e Manol-o Ro iote5
Commissioner
At this time Mr. Zenos has several altern ti esf by d MayUrtntit 1
with his lawsuit and have his case disposeddisability or acci�
Zenos might also reapply for either ordinary rovidt that cn
dental disability at this time since the rules p
employee may reapply after an interval of six months since that
hearing of his initial application. Due to the possibility
Mr. Zenos' condition may have changed duringthe
inteughivals he
might
well now be entitled to ordinary disability
that the necessary facts could now be found to entitle him to an
accidental disability retirement.
Should Mr. Zenos determine to reapply it will, of course, be
necessary for him to dismiss his lawsuit. rvMt'
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