EFFECTIVELY MANAGING YOUR CalPERS IDR · PDF fileEFFECTIVELY MANAGING YOUR CalPERS IDR...

Industrial Disability Retirement (IDR) & Crossover Employment Law Issues for Public Safety Officers

EFFECTIVELY MANAGING YOUR

CalPERS IDR PROGRAM

Dave Thomas, Office Managing Partner; RiversidePat McAleer, Partner; Redding

April 2017* For Educational Purposes Only *

NOT LEGAL ADVICECAJPA Spring Workshop -- 1

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

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



LEGAL STANDARD

“Incapacitated for the performance of duty as the result of an industrial disability”



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”

GC 20046

• Causation of Injury vs. Causation of Disability



LEGAL STANDARD: “Incapacity”

• “Disability of permanent or extended and uncertain duration . . . On the basis of competent medical opinion”

GC 20026

• “Substantial Incapacity” –i.e., Substantially unable to perform the usual duties of his/her position

Mansperger v. PERS, Cal.App.3d 873 (1970)



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

APPLICATION – Who?

• Who should file the application?ER’s must file IDR for eligible member “believed to be disabled”

Govt. Code 21153

• 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)



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



DETERMINATION OF DISABILITY

• Competent Medical Opinion

• Agency shall not use disability retirement as a substitute for the disciplinary process

Govt. Code 21156(a)(2)



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. 321839 (2005)

Roccaforte v. City of San Diego,89 Cal. App.3d 877 (1979)

• Employee must be given “IDR or placed into a full-time, full-pay, limited duty” position.

Raygoza v. County of Los Angeles(1993) 17 Cal. App.4th1240,1246




• 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



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




• 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?



COORDINATION OF HR &POLICE/FIRE

DEPARTMENTS



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




• 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




• 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




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)




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.



IDR MEDICAL EXAM

• Separate PERS medical exam & reportGovt Code 21154/55

• “Substantial Incapacity” vs. prophylactic work restrictions

• Educate doctor on the PERS law and defenses

• Credentials of doctor–Education, research, peer-reviewed & published articles, etc.



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



IDR DEFENSES



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.6 Cal.App.3d 873 (1970)

Harmon v. Board of Retirement (1976)• 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)



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)



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)



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)



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 opportunities141 Cal.App.3d 1047 (1983)



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 denied126 Cal.App.3d 208 (1981)



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)



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 approval120 Cal.App.4th 194 (2004)



CalPERS Retirement Benefits Circular Letter

April 2017

Thank You For Joining Us!



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