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Ex-Official Told To Repay $411,688 In Disability Pension Funds

Jon Lender

Government Watch

2:08 PM EDT, August 25, 2012

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A longtime deputy state environmental commissioner was allowed to retire in 2006 at age 50 with an $85,000-a-year lifetime "disability pension" because of a degenerative spinal condition — but now he's been told to give back $411,688 in pension payments, after a ruling that he wasn't sufficiently disabled in the first place.

David K. Leff, now 57, of Canton, is fighting the Feb. 15 decision of the state Medical Examining Board, which conducted a hearing on his case last Dec. 9. Leff says that his disability causes him constant pain and that the board is ignoring medical evidence submitted by his doctor of 21 years. A hearing is to be held in November on his request for the board to reconsider.

The medical board is rescinding his disability pension retroactively to the day it started: April 1, 2006.

"The board concludes … that Mr. Leff should not have been awarded a disability retirement benefit in … 2006 [and] … that Mr. Leff had and has a significant work capacity," Timothy Silvis, a physician who is the board's secretary, wrote in the decision. The action came roughly two years after state retirement officials apparently began investigating a tip, records show.

Leff — who was a state employee for 28 years, the last 11 as deputy commissioner of the Department of Environmental Protection — lately had been receiving a monthly pension of $8,241, for an annual amount of $98,892 after years of cost-of-living adjustments. But since the Feb. 15 decision, the amount has been reduced to $5,914 a month; that cut was based on a calculation of what he would be receiving now if he had waited until he turned 55 on April 9, 2010, and had taken a regular (non-disability) early retirement.

In addition, Leff was told in a Feb. 28 letter that he needs to give back an overpayment of $411,688 that he received for the period from April 1, 2006, through Feb. 29, 2012. He could make a "lump-sum payment" or go on a 10-year repayment plan reducing his monthly pension payment by $3,430, as stated in a letter from the Office of the Comptroller's retirement services division.

However, that repayment question has been held in abeyance until after the November hearing.

In its Feb. 15 decision, the medical board noted that Leff is a productive writer and lecturer on nature and the environment, penning four books since his 2006 retirement. He also writes on his Internet website — http://davidkleff.typepad.com/home/ — and for various publications including The Courant, which, the board pointed out, has published dozens of pieces by him in its opinion section since 2006.

Board 'Shocked'

The board also mentioned a big canoe trip Leff took two years before he retired, and cited five physical examinations from 2005 to 2010 pronouncing Leff "medically fit" to be a volunteer fireman at his local department, as an "exterior firefighter" who does not enter buildings. "The results of these annual physical examinations were shocking," Silvis wrote.

"The board finds when viewed in its entirety, the information presented and testimony given at the December 9, 2011 hearing shows that Mr. Leff was not entitled to a disability retirement benefit in March 2006. Testimony … indicated that Mr. Leff was working at his position [of DEP deputy commissioner], performing all the duties of the position and had taken no time from work due to his impairment."

The board had granted the disability retirement application with the expectation that his physical limitations would worsen, and "the evidence shows it did not."

"Had the Board in March 2006 been made aware of Mr. Leff's lengthy canoe trips in the summer of 2004, the extent and depth of Mr. Leff's volunteer activities … and the results of his … 2005 physical examination, ….the outcome of its March 10, 2006 decision might have been different."

But Leff says that his physical condition has deteriorated since his 2004 canoe trip — in which he limited his exertion by having a partner who could do heavy lifting — and he has since given up canoeing.

He also said that he serves as "safety officer" for the local fire department, a job that requires no serious physical exertion and involves such tasks as observing fire scenes and making note of who entered a burning structure, to be sure they came out again. Leff said he cannot even wear a regular fireman's helmet, but instead is allowed to wear a lightweight construction helmet.

Also, an area medical director for the health care firm Concentra, which performs the medical examinations for the fire department, wrote a March 22 letter in Leff's behalf saying that his annual physicals "do not include a functional capacity or a work skills assessment," and have cleared him for duty "based on the physical restrictions given to him by his treating orthopedic specialist."

Leff and his lawyer, Andrew Houlding of the Hartford firm Rome McGuigan, said in an interview Thursday that Leff's chronic back pain prevents him from a full-time job because he can't sit or write for more than two or three hours, and needs interruptions for walking around and stretching.

Leff said he was in such pain from his spinal stenosis — a narrowing of the spinal canal — that he had to have a podium to stand at in his state office, along with an ergonomic chair for his desk, and an extra-long phone cord to enable him to pace around as he spoke, relieving his pain somewhat. He said he takes eight ibuprofen pills and six acetaminophens a day. He said he's had two spinal surgeries.

He is right-handed and displayed that hand. It has a flat web of skin, instead of the flesh, between the thumb and index finger. The finger has no lateral strength, he said.

In a May 25 letter, neurologist Peter B. Wade of Enfield, Leff's doctor for two decades, wrote: "I strongly disagree with their opinion that his ability to engage in various activities … implies that he could function effectively in his previous full-time high-level functioning position."

"I'm very much a by-the-rules guy," Leff said, but he added that retirement officials didn't play by the rules.

He said they "tricked" him by telling him that the hearing last Dec. 9 wasn't a formal hearing. He produced a transcript of the proceeding in which a comptroller's office attorney said it was "not a hearing," but instead was "a fact-finding conference" and "not an adversarial proceeding." Despite that, Leff noted that the board's Feb. 15 decision cited evidence and testimony from "a hearing … on Friday, December 9, 2011."

Leff said if he'd been told it was a formal hearing on which his future depended, he would have made sure to be represented by an attorney. He said he would have submitted to an exam by a state-appointed doctor but was never asked to do so.

Houlding said the state's procedures have been illegal and rife with due-process violations

"In our view it's fundamentally unfair to say [the medical board] made a decision which now they say is incorrect, and that he is to be charged with that error," Houlding said. "There is no basis in the law for a medical examining board to retroactively revoke a disability pension."

He said a board can typically decide that a pension recipient is no longer disabled and can reduce his pension accordingly in the future. But he added that if a retiree always provided accurate information and answered questions truthfully — as he said Leff did in the original application and in a 2008 review — he should not be subject to such a devastating, retroactive penalty just because a board changes its mind.

Generous Benefits

Beyond the individual circumstances, the case sheds light — yet again — on the unusually generous fringe benefits enjoyed by state employees in comparison to those in the private sector: Leff's spinal condition is not work-related, but that doesn't matter in the world of work for Connecticut government employees. He still received a "non-service connected disability retirement."

It's fairly common for correction officers and police to receive work-related disability pensions after suffering on-the-job injuries. But, even without a work-related health condition, a state worker with 10 years on the job can still receive a disability pension if he or she supplies medical proof.

This can help a person in at least two ways: You can retire before you reach the age of eligibility, and your pension is often higher than it would have been if you had no disability. (Disability amounts can be reduced in later years after Social Security kicks in.)

And so Leff was not only able to retire a little more than four years before the normal early-retirement age of 55, but his pension amount was about $20,000 more a year than it would have been.

This, by the way, is another one of those provisions that was negotiated in past years by the state administration with state employee unions, and then approved by the legislature. Once the unions negotiate such a benefit, it generally is given to non-union managers — such as Leff, in this case.

The rationale for fringe benefits has always been that when you come to work for the state, you are making a trade-off: lower wages in exchange for better benefits, including a secure retirement.

But many observers say the lower-pay part isn't always true anymore, and that as state wages have risen and private-sector pay has stagnated, many state workers make more even in straight salary than their counterparts at private businesses. Most often cited are the proliferating number of $100,000-plus administrators at state agencies.

Mistaken Identity

The Leff case has several twists — including the fact that it started with a case of mistaken identity.

In 2010, someone contacted the comptroller's office, which administers state employee pensions, to report that a David Leff was receiving a disability pension and yet was actively practicing law.

It turned out to be the wrong David Leff – attorney David A. Leff of New Haven (wrong middle initial, wrong town, wrong everything).

Houlding recounted the episode in a May 29 letter to retirement officials: "Sometime in 2010, the Retirement Services Decision was erroneously informed that [Leff] was practicing law in New Haven." He noted that his client, Leff, "is an attorney, but does not and has not practiced law. …This initial false information apparently led the Division to investigate [Leff, his client's] activities."

Information gathered by the retirement division, and submitted to the board, included "all the books, articles and editorials published by Mr. Leff since 2006," the decision said. "Mr. Leff has published three books since 2006 and a fourth book" was due out in June 2012.

A 2009 book, "Deep Travel," chronicled Leff's canoeing in summer 2004 on rivers traveled by the transcendentalist writer Henry David Thoreau in the 1800s, the board said, "although his testimony to the Board made it clear that his canoeing activities declined after 2004 and he does not do any canoeing at present."

The board continued, ""[T]he volume of writing in the years since his retirement has been quite high. … Mr. Leff testified that he spends 20-25 hours a week writing his books and articles."

Leff said Thursday that he types with the index finger of one hand while hitting the space bar on the keyboard with his other thumb.

The board, in its decision, also noted that Leff attends "monthly and quarterly meetings" of volunteer boards or commissions, and travels "for the purpose of giving talks and lectures."

Leff said in all his activities, deadlines and the obligation to show up — even for a fire with the volunteer department — take a back seat to pain. He said his doctor told him that if he did not get out of the high-stress job at the environmental agency — or the obligations of any full-time job at such a level — he would not enjoy "any quality of life" as the years went on.

Jon Lender is a reporter on The Courant's investigative desk, with a focus on government and politics. Contact him at jlender@courant.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter@jonlender.