
    Daniel P. ZIEGLER v. DEPARTMENT OF FIRE.
    No. CA-0062.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1983.
    Rehearing Denied Feb. 24, 1983.
    
      Louis L. Robein, Jr., New Orleans, for plaintiff-appellant.
    Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellee.
    Before SCHOTT, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision by the Civil Service Commission upholding the dismissal of Daniel P. Ziegler from the New Orleans Fire Department based on his alleged inability to perform his duties as a result of his alcoholism.

Ziegler had been with the Fire Department for seventeen years. Although he testified that he had been drinking heavily since he was fourteen, there was no evidence that his alcoholism interfered with his duties as a Fire Captain, other than one seizure that he suffered at the station house. He had tried to seek professional help to quit drinking, but was unable to remain with a program for any length of time.

Ziegler suffered an injury when he struck his head during a seizure he suffered at home in March, 1981. He consulted Dr. Jack Ruli for treatment of his head injury. Dr. Ruli was the physician for the New Orleans Fire Department. Ziegler returned to work in May, 1981.

On June 25, 1981, Ruli sent a report to William McCrossen, Superintendent of the Fire Department. The letter stated in part:

“My opinion is that Mr. Ziegler be considered totally and permanently disabled from performing fire duty. This is based on the diagnosis of severe alcoholism which has caused him to have a seizure problem, abnormal brain findings and liver disease....
“I would like to make the following recommendation. That Mr. Ziegler be maintained in long-term rehabilitation program with careful supervision. (This has failed in the past!) If this can be accomplished successfully he may possibly improve sufficiently for re-evaluation at a later date.”

As McCrossen testified at the Civil Service Commission hearing, the basis for the dismissal was the letter from Ruli, stating that Ziegler was unable to return to Fire Duty. Ziegler was told to make arrangements with the Fireman’s Pension Board.

Because Ziegler had been with the Fire Department for just seventeen years, he was only eligible for a medical pension. He was denied a pension by the Board, because in its opinion, Ruli’s letter showed that Ziegler was not totally and permanently disabled.

Ziegler appealed the decision of Superintendent McCrossen to the Civil Service Commission. After a hearing, the Commission upheld the decision to terminate Ziegler’s employment. He has appealed from that decision to this court.

On appeal, Ziegler has urged two errors: (1) Dr. Ruli’s testimony was inadmissible based on the patient-physician privilege, and (2) based on the evidence, the Civil Service Commission should not have upheld his dismissal.

PATIENT-PHYSICIAN PRIVILEGE

Ziegler argues that the evidence presented by Ruli should have been excluded because Ruli was his physician, and he did not waive the patient-physician privilege.

The defense asserts that: (1) the privilege did not exist between Ruli and Ziegler and (2) assuming arguendo that communications between them were privileged, Ziegler waived the privilege by not asserting it timely.

In McConkey v. Pinto, 305 So.2d 469 (La.1974), the Louisiana Supreme Court held that the patient-physician privilege was waived when a patient failed to claim it at trial or to object to testimony on that basis. Id. n. 3 at 471. See generally La.R.S. 13:3734.

At no time during the hearing did Ziegler or his attorney assert that any communication between plaintiff and Ruli was privileged. It is not necessary, therefore, for us to determine whether any communication between Ziegler and Ruli was privileged; Ziegler cannot now assert that it was.

This argument is without merit. DISMISSAL

It is clear from the record that the only evidence upon which McCrossen based his decision to terminate Ziegler’s employment was the letter from Dr. Ruli.

Ruli’s letter appears to be inconsistent. He stated that Ziegler was totally and permanently disabled. He also stated, however, that Ziegler might possibly be able to return to work after being re-evaluated at a later time. This inconsistency is highlighted by the Pension Board’s refusal to find Ziegler disabled on the basis of the letter.

We find that Ziegler was not permanently disabled. The only evidence that he might not eventually return to work is Ruli’s letter, which was supported equivoca-bly by his testimony at the Commission hearing. At the hearing (and to an extent in his letter), Ruli said that if Ziegler could quit drinking for a year, or possibly less, then he might be able to return to the position of Fire Captain.

The testimony presented at the hearing to the effect that Ziegler has participated in a rehabilitation program and has successfully controlled his drinking for a number of months was uncontradicted. Furthermore, testimony indicated that Ziegler’s seizures were a result of his drinking, and once his drinking was under control, he would no longer suffer the seizures.

According to testimony at trial, Ziegler had accumulated almost one year of statutory sick leave. Ziegler argues that he should be allowed to use his sick leave to recover. Although the Superintendent MeCrossen testified that it was difficult to maintain a full force because of the various leaves allowed to the employees, that consideration alone cannot be sufficient to terminate employment if the employee is entitled to take sick leave and is not totally and permanently disabled. The solution to this apparently difficult problem lies in reform of the leave policy, not the dismissal of employees who are not totally and permanently disabled.

Ziegler is a seventeen year veteran of the Fire Department who is statutorily entitled to approximately 300 days of sick leave. From the vast majority of evidence presented, it appears that he may eventually be able to function in his position. The only evidence against this assertion was contradicted by the same person who presented it. Ziegler may or may not eventually be able to return to the Fire Department. Furthermore, there was no evidence presented upon which the Civil Service Commission could determine that Ziegler’s alcoholism was the result of his own negligence or culpable indiscretion. He should be allowed his accrued sick leave to rehabilitate himself so that he may return to work. If he is unable to do so, then clearly he should be entitled to his medical pension.

For the foregoing reasons, the decision of the Civil Service Commission upholding the dismissal of Daniel P. Ziegler on the basis that he was totally and permanently disabled is hereby reversed. Ziegler is to be reinstated, and the time elapsed since his dismissal is to be considered as statutory sick leave.

REVERSED.

CIACCIO, Judge,

dissenting.

The majority finds that Mr. Ziegler was not permanently disabled, and therefore concludes that his dismissal was improper. This is the wrong test, the correct one being the inability of the employee to perform the duties of his position. Civil Service Rule IX provides in part, that “when any regular employee in the classified service is unable or unwilling to perform the duties of his position ...” the appointing authority shall take action warranted by the circumstances to maintain the standard of effective service.

The grounds for plaintiff’s dismissal was the June 26,1981 letter from Dr. Jack Ruli which indicated that Mr. Ziegler be considered totally and permanently disabled from performing fire duties based upon the diagnosis of severe alcoholism which had caused him to have a seizure problem, abnormal brain findings and liver disease. The Civil Service Commission upheld the dismissal, after finding that “At the time the appellant was dismissed, it is clear that cause existed.” The record fully supports this finding.

The fact findings of the Civil Service Commission are to be accorded the same efficacy as a finding of fact made by a trial court. Gallardo v. Department of Fire, 399 So.2d 626 (La.App., 4th Cir., 1981). The appellate court is not at liberty to make findings of fact the effect of which would necessitate a different result, unless it appears that the trier of fact committed manifest error. Gallardo v. Department of Fire, supra. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978), Canter v. Koehring Co., 283 So.2d 716, (La., 1973).

The Commission, in its opinion, stated: “The precise issue is therefore the propriety of the position taken by the Appointing Authority that appellant should be given no further opportunity to resolve his problem with alcoholism while in the employ of the Fire Department. The evidence is uncontradicted that the Department had cooperated with appellant for a number of years, at least since 1977, in dealing with alcoholism. This is therefore not a case of an insensitive and uncaring employer refusing assistance to its employee. Despite these earlier efforts, at the time of his dismissal appellant was still drinking and continued to do so until August, 1981.”

Under these circumstances, this Court should not substitute its opinion for that of the Superintendent, and should not require the Fire Department to reinstate the appellant and to undertake further rehabilitative efforts which have no guarantee of success, at a risk to the well being of the employee himself, his fellow employees and the public. Further, the right to reinstate such a discharged employee is reserved to the appointing authority, with the approval of the Commission. C.S.C., Rule VI, § 4.6.

Although the opinion indicates that Mr. Ziegler returned to work in May, 1981, this is incorrect as he was on sick leave at the time of his dismissal. He had not stopped drinking as of this date and, by his own testimony, did not seek help until August of 1981, several weeks after his discharge. The plaintiff’s condition after the date of his dismissal should not be considered by this Court, and it is clearly wrong for this Court to vacate the dismissal on the basis of subsequent events.

Moreover, I further disagree with that portion of the majority opinion which would allow the plaintiff to use accumulated statutory sick leave to recover.

The applicable statutory provision dictates the following conditions concerning the accumulation of sick leave:

Louisiana Revised Statute, Title 33 Section 1995:

Every fireman in the employ of a municipality, parish or fire protection district to which this Sub-part applies, shall be entitled to full pay during sickness or incapacity not brought about by his own negligence or culpable indiscretion for a period of not less than fifty-two weeks. As amended Acts 1962, No. 132, § 1. (Emphasis Supplied)

It is my opinion that the plaintiffs condition was a direct result of his own “culpable indiscretion” which precludes him from claiming the benefits of R.S. 33:1995.

Appellant admits to drinking heavily since the age of fourteen. Although he has served satisfactorily in the New Orleans Fire Department for nearly seventeen years and no evidence was presented that he ever drank on duty, his drinking problem had grown progressively worse in recent years, to the point where he occasionally suffered short seizures or black-outs, one of which occurred while on duty. On several occasions the Fire Department’s physician, Dr. Ruli, examined appellant and detected various physical abnormalities attributable to his alcoholism. Appellant participated in various alcoholism treatment programs over a period of time but prior to March, 1981 had not been successful in controlling his condition.

Appellant’s failure to control his drinking habit and his failure to cooperate with prior rehabilitation efforts amounts to “culpable indiscretion.”

The majority recognized that Ziegler was suffering from the effects of alcoholism which prevented him from performing his duties but orders that he be credited with statutory sick leave. This is an admission that the cause for his dismissal, i.e., his inability to perform his duties, was present, but this Court then substitutes its judgment for that of the Superintendent, an action we prohibited the Civil Service Commission from doing in the case of Branighan v. Department of Police, 362 So.2d, 1221 (La. App., 4th Cir.1978)’ This is clearly wrong.

For the stated reasons, I would affirm the decision of the Civil Service Commission, which upheld plaintiff’s dismissal.

I respectfully dissent.  