EFFECTIVELY MANAGING YOUR CalPERS IDR PROGRAM
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- Hortense Casey
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1 EFFECTIVELY MANAGING YOUR CalPERS IDR PROGRAM Industrial Disability Retirement (IDR) & Crossover Employment Law Issues for Public Safety Officers Dave Thomas, Office Managing Partner; Riverside Pat McAleer, Partner; Redding NOT LEGAL ADVICE CAJPA Spring Workshop -- 1
2 HOW TO WIN Overview of CalPERS IDR Early Coordination with WC Case Timely Coordination with Police & Fire Interactive Process (FEHA/ADA) Consistent Positions between Departments Carefully Crafted Job Analysis IDR Medical Examination Witness Preparation IDR Defenses NOT LEGAL ADVICE CAJPA Spring Workshop -- 2
3 PERS IDR BENEFITS Benefits to Local Safety Officers 50% of salary, tax free. More than 50% if have the requisite years of service, but only the first 50% is tax free. 3% at 50 yrs; up to 90+% salary. Medical plan continues??? Can exceed $1,000,000 over lifetime NOT LEGAL ADVICE CAJPA Spring Workshop -- 3
4 LEGAL STANDARD Incapacitated for the performance of duty as the result of an industrial disability NOT LEGAL ADVICE CAJPA Spring Workshop -- 4
5 LEGAL STANDARD: Industrial Disability or death as a result of injury or disease arising out of and in the course of his or her employment Causation of Injury vs. Causation of Disability GC NOT LEGAL ADVICE CAJPA Spring Workshop -- 5
6 LEGAL STANDARD: Incapacity Disability of permanent or extended and uncertain duration... On the basis of competent medical opinion Substantial Incapacity i.e., Substantially unable to perform the usual duties of his/her position GC Mansperger v. PERS, Cal.App.3d 873 (1970) NOT LEGAL ADVICE CAJPA Spring Workshop -- 6
7 INDUSTRIAL CAUSATION / INCAPACITY MATRIX Admit Incapacity Dispute Incapacity Admit Industrial Causation IDR Hearing with ALJ Dispute Industrial Causation Hearing at WCAB (Govt. Code 21166) (causation only) Hearing (1) WCAB (2) ALJ NOT LEGAL ADVICE CAJPA Spring Workshop -- 7
8 APPLICATION Who? Who should file the application? ER s must file IDR for eligible member believed to be disabled Govt. Code Why does it matter? Burden of proof Consequences for ER not filing Writ of Mandate to Superior Court Lazan v. County of Riverside, 140 Cal.App.4th 453 (2006) NOT LEGAL ADVICE CAJPA Spring Workshop -- 8
9 APPLICATION When? While the member is in service Within 4 months after the discontinuance of service While the member is physically or mentally incapacitated from discontinuance of service until time of application NOT LEGAL ADVICE CAJPA Spring Workshop -- 9
10 DETERMINATION OF DISABILITY Competent Medical Opinion Agency shall not use disability retirement as a substitute for the disciplinary process Govt. Code 21156(a)(2) NOT LEGAL ADVICE CAJPA Spring Workshop -- 10
11 TAKE EM BACK OR RETIRE EM NOT LEGAL ADVICE CAJPA Spring Workshop -- 11
12 TAKE EM BACK OR RETIRE EM Employee cannot, at the same time, be denied a disability retirement and also denied employment. Montoya v. Retirement Board, City and County of San Francisco, San Francisco Superior Court No (2005) Roccaforte v. City of San Diego,89 Cal. App.3d 877 (1979) Employee must be given IDR or placed into a fulltime, full-pay, limited duty position. Raygoza v. County of Los Angeles(1993) 17 Cal. App.4th1240,1246 NOT LEGAL ADVICE CAJPA Spring Workshop -- 12
13 TAKE EM BACK OR RETIRE EM Lazan v. County of Riverside (2006) -- Work Comp division advised Lazan that it had no available work for her (i.e., NOPE letter) -- Sheriff's Department refused to allow Lazan to return to work -- Human Resources Department failed to use the interactive process -- Disability Retirement Division, denied that Lazan was disabled (i.e. denied IDR) Writ of Mandate to Superior Court -- Superior Court compelled IDR NOT LEGAL ADVICE CAJPA Spring Workshop -- 13
14 COORDINATION OF WORK COMP & HR NOT LEGAL ADVICE CAJPA Spring Workshop -- 14
15 COORDINATION OF WORK COMP & HR WC cases must be defended Integrated approach increases likelihood of victory Counsel with Expertise in IDR laws Resistance of IDR has positive deterrent effect on future filings $$$ savings with joint settlements NOT LEGAL ADVICE CAJPA Spring Workshop -- 15
16 COORDINATION OF WORK COMP & HR Fight Industrial Causation? Multiple Prior Claims Medical-only ; PD stipulations; prior surgeries No AMEs (or limit scope of exam) Safety Officer nearing retirement Expectation/Culture for PERS IDR? NOT LEGAL ADVICE CAJPA Spring Workshop -- 16
17 COORDINATION OF HR &POLICE/FIRE DEPARTMENTS NOT LEGAL ADVICE CAJPA Spring Workshop -- 17
18 COORDINATION OF HR & POLICE/FIRE DEPARTMENTS TTD / change of status reports -- Work restrictions -- Temporary light duty positions QIW / RTW determinations -- Different legal standard between WC & IDR Interactive Process (ADA/FEHA) Reduce time lag between P&S status and IDR NOT LEGAL ADVICE CAJPA Spring Workshop -- 18
19 COORDINATION OF HR & POLICE/FIRE DEPARTMENTS Job duties of a Deputy Sheriff What happens on patrol is highly variable More strenuous duties occasionally req'd. POST-Training; annual recertification Usual duties v. occasional duties Injuries pose danger to deputy, fellow officers and the public Duties will inevitably worsen injury NOT LEGAL ADVICE CAJPA Spring Workshop -- 19
20 COORDINATION OF HR & POLICE/FIRE DEPARTMENTS RTW Policy -- Permanent Light duty -- Job Accommodation (ADA/FEHA) Consistent positions between departments Essential Job Duties -- Hiring v. retention criteria -- Cadet, deputy, sergeant, lieutenant, etc. Carefully Crafted Job Analysis NOT LEGAL ADVICE CAJPA Spring Workshop -- 20
21 COORDINATION OF HR & POLICE/FIRE DEPARTMENTS Thelander v. City of El Monte (1983) Part-time reserve officer required to attend the police academy Before academy, she had been diagnosed with asymptomatic scoliosis, which prevented her from completing the academy Deputies must subdue violent suspects, engage in chases that involve running, jumping and crawling; break up fights; drag or carry victim out of danger Must be "capable and prepared for the worst every day Court found the strenuous activities to be usual duties 147 Cal.App.3d 736 (1983) NOT LEGAL ADVICE CAJPA Spring Workshop -- 21
22 COORDINATION OF HR & POLICE/FIRE DEPARTMENTS CA Govt. Code 1031 Each class of public officers or employees declared by law to be peace officers shall meet all of the following minimum standards: (f) Be found to be free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer. NOT LEGAL ADVICE CAJPA Spring Workshop -- 22
23 IDR MEDICAL EXAM Separate PERS medical exam & report Govt Code 21154/55 Substantial Incapacity vs. prophylactic work restrictions Educate doctor on the PERS law and defenses Credentials of doctor Education, research, peerreviewed & published articles, etc. NOT LEGAL ADVICE CAJPA Spring Workshop -- 23
24 WITNESS PREPARATION Expert Medical Testimony -- Live witness -- Prophylactic vs. actual work restrictions -- Detailed understanding of job duties Sheriff s Department Essential job functions -- Light duty positions NOT LEGAL ADVICE CAJPA Spring Workshop -- 24
25 IDR DEFENSES NOT LEGAL ADVICE CAJPA Spring Workshop -- 25
26 IDR DEFENSES Mansperger v. PERS (1970) Incapacitated means the applicant for a disability retirement has a substantial inability to perform his or her usual duties. Harmon v. Board of Retirement (1976) 6 Cal.App.3d 873 (1970) When an applicant can perform his customary duties, even though doing so may sometimes be difficult or painful, the applicant does not qualify for a disability retirement. 62 Cal. App. 3d 689 (1976) NOT LEGAL ADVICE CAJPA Spring Workshop -- 26
27 IDR DEFENSES Hosford v. Bd. Of Admin. (1978) Employee can be unable to perform some of his/her duties without being substantially incapacitated Fear of sustaining further injury (or aggravation) does not substantially incapacitate an employee Disability must be existing, and not prospective in nature Light duty position not necessary when partially disabled public employee can perform the usual duties, even when difficult or painful. 77 Cal.App.3d 854 (1978) NOT LEGAL ADVICE CAJPA Spring Workshop -- 27
28 IDR DEFENSES Craver v. City of LA (1974) Police Officer not entitled to IDR since employer gave him permanent modified/limited assignment Despite inability to perform all police duties Permanent Modified Light-Duty 42 Cal.App.3d 76 (1974) NOT LEGAL ADVICE CAJPA Spring Workshop -- 28
29 IDR DEFENSES Winslow v. City of Pasadena (1983) Retired motorcycle officer could be reinstated where Department created light-duty positions after his retirement Provided that Department supplied light-duty positions in the past New position must be real job 34 Cal. 3d 66 (1983) NOT LEGAL ADVICE CAJPA Spring Workshop -- 29
30 IDR DEFENSES Stuessel v. City of Glendale (1983) Permanent Modified Light Duty -- Not carry firearm or make arrests -- No vested right to the above where there s a proper medical reason involving safety Retained Police Officer Classification Same salary and benefits Same promotional opportunities 141 Cal.App.3d 1047 (1983) NOT LEGAL ADVICE CAJPA Spring Workshop -- 30
31 IDR DEFENSES Reynolds v. City of San Carlos (1981) Firefighter s ability to return to work likely would have been restored with surgery Unreasonable refusal to submit to corrective surgery IDR denied 126 Cal.App.3d 208 (1981) NOT LEGAL ADVICE CAJPA Spring Workshop -- 31
32 IDR DEFENSES Haywood v. Amer. River Fire (1998) Firefighter terminated for cause following disciplinary actions No valid claim before termination Can t claim IDR after separation from employment Termination for cause severed employer/employee relationship 67 Cal.App.4th 1292 (1998) NOT LEGAL ADVICE CAJPA Spring Workshop -- 32
33 IDR DEFENSES Smith v. City of Napa (2004) Employee terminated for reasons: -- Not resulting from disabling medical condition -- Not for purpose of preventing retirement On date disability claim was denied, officer was no longer an employee Cites Haywood with approval 120 Cal.App.4th 194 (2004) NOT LEGAL ADVICE CAJPA Spring Workshop -- 33
34 CalPERS Retirement Benefits Circular Letter
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37 NOT LEGAL ADVICE CAJPA Spring Workshop -- 37
38 NOT LEGAL ADVICE CAJPA Spring Workshop -- 38
39 Thank You For Joining Us! NOT LEGAL ADVICE CAJPA Spring Workshop -- 39
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