A fired fire captain has filed a lawsuit against the city and a doctor who treated him while he was out on workers compensation leave.
James Reyes filed the lawsuit on Dec. 21, 2018. He claims the city has refused to let him return to work after he appealed his termination with the state and won the case. He was terminated following a surveillance operation that purported to show him lifting and shoveling snow while out on injury leave.
On Jun. 22, 2016, he stepped out of his fire vehicle and landed on an uneven pavement and twisted his torso, according to his lawsuit. The next day, he began reporting to ImmediCenter, an urgent care facility for firefighters injured on the job, for treatment. He was run through a magnetic resonance imaging (MRI) scan and referred to orthopedist Robert Kayal for further treatment on Jul. 11, 2016.
For the next months the doctor administered sciatic injections and pain medications. While he received treatment, Kayal provided him doctor’s notes excusing him from work. Reyes received notes from Aug. 10, 2016 through Dec. 9, 2016.
In Dec. 2016, Reyes had a conversation with battalion chief Gabriel Abouyan. He told Abouyan he was in too much pain to return to work on modified or light duty, according to the lawsuit. Reyes also told Abouyan the doctor had not cleared him to return to work. At this point, Reyes had been out of work for six months.
Samir Goow, risk manager at the time, ordered surveillance against Reyes. Reyes was surveilled for 11 days from Dec. 9 through 23, 2016 for 10 to 12 hours per day, according to the lawsuit.
Private investigators found 13 instances of alleged fraud. He was recorded shoveling snow and lifting cases of water.
Goow sent surveillance footage to Kayal.
Kayal called Reyes into his office on Jan. 11, 2017 and confronted him with the videos. Prior to the confrontation the doctor had cut off Reyes’ physical therapy and cancelled his injections for Jan. 2017, according to the lawsuit. Kayal wrote a letter dated Jan. 11, 2017 to the city’s third-party workers compensation insurance administrator, Claims Resolution Corporation, alleging the videos contained “indisputable evidence” Reyes could perform his work duties.
On Jan. 23, 2017, the city brought disciplinary charges — incompetency, inefficiency, failure to perform duties, conduct unbecoming a public employee, neglect of duty, and violation of municipal injury and sick leave policy — against Reyes.
Reyes’ case was also referred to the Passaic County Prosecutor’s Office which declined to prosecute, says the lawsuit.
Reyes was terminated as of Feb. 23, 2017. As a result, he lost his medical benefits and his condition began to “deteriorate” forcing him to use a cane to walk, says the lawsuit.
On Mar. 11, Reyes appealed the termination with the New Jersey Civil Service Commission. His case was assigned to administrative law judge Barry E. Moscowitz.
Moscowitz held three hearings in Oct. 2017.
The city argued Reyes could have returned to work on modified or light duty. He did not tell his doctor modified or light duty assignment was available to him to defraud the city, alleged the city. The city argued no one told Reyes light or modified duty was available, but that everyone in the fire department knew light assignments were available. Municipal injury and sick leave policy fail to spell out if the onus is on the injured employee to request or seek modified or light duty.
Goow testified Reyes’ termination sent a message to other employees.
“You know how many firemen went back to work after Mr. Reyes was terminated? Ask me that question. All of them. You know why? They said, ‘Oh, my God, somebody’s – somebody woke up in City Hall,’” Goow told the judge.
On Aug. 1, 2017, Reyes was examined by orthopedist David Weiss, an independent medical examiner, who determined Reyes could bend forward, but not backward without pain due to his injuries.
The judge heard from Weiss at the hearing.
“Weiss explained at the hearing that his physical findings meant that Reyes could bend forward, but not backward, without pain, and that none of the activities he saw Reyes perform on the videos, including the shoveling of snow and the lifting of water cases, contradicted his medical profile, because the shoveling of snow and the lifting of water cases involved bending forward, not backward,” wrote the judge in his decision.
Kayal provided inconsistent testimony to the judge, who did not find him credible, according to the lawsuit. For example, at one point he said workers compensation patients were two-percent of his practice. Later he said it was 1.5-percent and then less than 1-percent.
Kayal did not respond to a call for comments on Tuesday.
On Mar. 20, 2018, Moscowitz ruled in favor of Reyes. He stated in his opinion fire officials did not inform Reyes that light assignments were available to him.
The judge also did not see any evidence that stated it was common knowledge among firefighters that modified or light duty was always available. His decision states Reyes could have returned to work on light duty in Dec. 2016. He also notes the city never made Reyes take a fitness for duty exam.
On May 25, 2018, the Civil Service Commission accepted the judge’s decision. It reversed the termination by dismissing the disciplinary charges against Reyes. The city was ordered to conduct a fitness for duty exam prior to reinstating the fire captain.
On Jul. 3, 2018, Reyes had surgery to repair his left hip torn labrum. He has been cleared to return to full duty, but the city has yet to return him to work, according to the lawsuit.
The lawsuit alleges the city “stone walled” Reyes’ requests to return to active duty. He had been working for the city since 1993. His salary was $110,000 prior to his termination, according to city records.
Mayor Andre Sayegh last week said he is requesting a report from the fire chief about Reyes’ situation when contacted by the Paterson Times.
Reyes is seeking unspecified amounts in damages from both the city and Kayal.
Reyes’ attorney Charles J. Sciarra did not respond to a call for comment for this story.
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