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The Legal Guardian
by David Givot

Court rules that 'size matters'

In case looking good and feeling better is not motivation enough to hit the treadmill and pass on the double-cheeseburger, consider the case of Hegwer v. Board of Civil Service Commissioners

By David Givot

Historically, January is a month of resolution; save money, get out of debt, go back to school, get a better job, etc. The most common resolution — according to the talking heads on TV — is to lose weight. It's no wonder, America has become one of the fattest societies in all the world. I, too, have resolved to shed a few pounds in 2011. In fact, I will probably head back to the gym when I am finished writing this column. Probably...

In case looking good and feeling better is not motivation enough to hit the treadmill and pass on the double-cheeseburger, consider the case of Hegwer v. Board of Civil Service Commissioners.

In May 1979, Paramedic Hegwer applied for employment as a paramedic and was given a pre-employment physical examination. Based on the (Los Angeles) City Department of Personnel's entrance standards then in use, her hiring was "deferred" for mild obesity. Hegwer, whose height is roughly 5'3", was directed to return upon reducing her weight to less than 132 pounds. She was hired on May 5, 1980, weighing 130 pounds.

About two and a half years later, having exceeded her maximum allowable weight of 140 pounds (LAFD Rules and Regulations sections 10(f) and 12(i) and section 3/5-60.24.c of the Manual of Operation.) by approximately 25 pounds, Hegwer entered the (City's) weight control program.

Six months later, she was counseled following her failure to achieve her monthly weight goal of 157 pounds. Six months after that she was issued a "Notice to Improve" for falling short of her monthly goal of 151 pounds.

After maintaining her maximum allowable weight of 140 pounds for two months, in December, 1984, Hegwer recorded a weight gain of 20 pounds and was given an official reprimand. Shortly afterward, she requested a reevaluation of her weight requirements and her maximum allowable weight was adjusted upward to 150 pounds.

On June 25, 1985, Hegwer weighed in at 194 pounds, a weight gain of 27 pounds over her previously recorded weight. She received a one-day suspension. On April 4, 1986, she weighed 179 pounds. She received a four-day suspension.

Her performance evaluation report for the period ending June 24, 1986 stated: "Due to Hegwer's excessive weight she has lost some of her agility needed to perform her duties as a paramedic. Examples of this include working in tight areas such as automobiles and small bedrooms, moving patients down narrow hallways, over furniture, and through doorways. With a loss of weight Hegwer would gain agility and stamina and be more effective as a paramedic."

After weighing in at 216 pounds in December, 1987, an eight-day suspension was ordered and rescinded in favor of a less stressful administrative assignment, but she declined. By July, 1988, Hegwer had reached a weight of 225 pounds and a department physical revealed she was in "very poor" cardio-vascular health.

In January, 1989, she hit 231 pounds and was suspended for eight days and then another 14 days for failing to comply with departmental policy requiring that (Paramedics) "keep themselves in proper physical condition necessary to perform the duties of their position."

Hegwer appealed the suspensions with department contending, in essence, that her obesity did not amount to a failure to keep herself in proper physical condition necessary to perform the duties of a paramedic, and that the failure to lose weight, standing alone, was not misconduct sufficient to support the disciplinary measures imposed. She lost and petitioned to have her case heard in Superior Court.

After a hearing in Superior Court, her petition was denied. The Court ruled that "...the Department's weight control program was "well within the scope of reasonableness;" that persuasive evidence established that appellant's obesity negatively affected her physical condition, and that because of her obesity, appellant was "not in proper physical condition to perform her job duties;" that appellant's conduct was "likely to cause harm to the public service;" and, that the penalties imposed "were proper in all respects, and ... were reluctantly imposed after (Hegwer) had been given significant opportunities to deal with her severe and potentially dangerous overweight condition (Hegwer v. Bd. of Civil Serv. Comrs., 5 Cal. App. 4th 1011, 1019-21, 7 Cal. Rptr. 2d 389, 393-95 (Cal. Ct. App. 1992)

The ruling in this case points out the obvious: that an overweight (provider) compromises his or her ability to perform required duties by failing to keep in proper cardiovascular condition. Moreover, penalties imposed by an administrative body are not excessive if employee's conduct, if repeated, is likely to result in harm to public service.

Finally, as if it was ever in question, this case relied upon undisputed evidence that EMS is physically demanding and that strength, endurance, agility and speed are essential to safe and efficient performance.

Since Hegwer, 19 years later, the problem of obesity among EMS Providers is not only personal, it has become another potential legal peril for providers and liability for agencies. Just imagine what a jury would say when they see that a life could have been saved had (the provider) been able to get into the automobile or small bedrooms, or had (the provider) been able to move the patients down a narrow hallway, over furniture, or through a doorway...for example.

While obesity seems to have become part of our societal landscape, it is a very serious issue and, for EMS Providers, carries potentially devastating consequences for the community (we) are meant to protect.

About the author

David Givot, Esq., graduated from the UCLA Center for Prehospital Care (formerly DFH) in June 1989 and spent most of the next decade working as a Paramedic responding to 911 in Glendale, CA, with the (then BLS only) fire department. By the end of 1998, he was traveling around the country working with distressed EMS agencies teaching improved field provider performance through better communication and leadership practices. David then moved into the position of director of operations for the largest ambulance provider in the Maryland. Now, back in Los Angeles, he has earned his law degree and is a practicing Defense Attorney still looking to the future of EMS. In addition to defending EMS Providers, both on the job and off, he has created TheLegalGuardian.com as a vital step toward improving the state of EMS through information and education designed to protect EMS professionals - and agencies - nationwide. David can be contacted via e-mail at david.givot@ems1.com.
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