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*For Educational Purposes Only * * NOT LEGAL ADVICE *

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Presentation on theme: "*For Educational Purposes Only * * NOT LEGAL ADVICE *"— Presentation transcript:

1 *For Educational Purposes Only * * NOT LEGAL ADVICE *
“End of the Rainbow” IDR Implications Industrial Disability Retirement (IDR) & Crossover Employment Law Issues for Public Safety Officers Dave Thomas, Partner; Riverside Office (951) Brenna Hampton, Managing Associate; San Diego Office (619) Jessie Zaylia, Associate; San Diego Office (619) HANNA BROPHY MacLEAN McALEER & JENSEN, LLP 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

2 Public Retirement Systems
Public Employees’ Retirement System (PERS) GC et seq. State Teachers’ Retirement System EC et seq. County Employees’ Retirement Law of 1937 GC et seq. City Plans GC et seq. 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

3 *For Educational Purposes Only * * NOT LEGAL ADVICE *
How To Win Overview of PERS IDR Overview of STRS Overview of 37 Act Retirement Early Coordination with WC Case Timely Coordination with HR & Sheriff’s “Interactive Process” (FEHA/ADA) Consistent Positions between Departments IDR Medical Examination Witness Preparation IDR Defenses 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

4 CalPERS (PERS) Public Employees Retirement System
10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

5 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

6 Benefits of Litigating IDRs
10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

7 Benefits of Litigating IDRs
10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

8 PERS IDR: Legal Standard
“Incapacitated for the performance of duty as the result of an industrial disability” 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

9 PERS IDR: “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 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

10 PERS IDR: “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) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

11 INDUSTRAL CAUSATION/ INCAPACITY MATRIX
Admit Incapacity Dispute Industrial Causation IDR Hearing with ALJ Hearing at WCAB (Gov. Code 21166) (causation only) WCAB 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

12 *For Educational Purposes Only * * NOT LEGAL ADVICE *
PERS IDR: Application 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) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

13 STRS State Teachers Retirement System
10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

14 *For Educational Purposes Only * * NOT LEGAL ADVICE *
STRS STRS (State Teachers’ Retirement System) Created in 1913 Purpose: Provide retirement benefits to California’s public school educators Ed. Code section et seq. provides disability, rehabilitation, and retirement Disability benefits under STRS are in lieu of workers’ compensation benefits 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

15 STRS Disability Retirement
Ed. Code sections Calculation: aggregate of salary up to the equivalent of one single, full-time job carrying the highest compensation O'Connor v. STRS. (1996) 43 Cal.App.4th 1610   10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

16 STRS Disability Retirement
Eligibility: Generally, a minimum of 5 years of service Substantiated by medical evidence Physical or mental medical impairment that is permanent OR expected to last 12 or more continuous months beyond the employee’s last day of work Impairment must prevent either U&C or duties of a comparable-level position Filing deadlines Two coverage options (A & B) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

17 STRS Disability Retirement
Coverage A Under age 60; min. 5 years of service credit Benefit: 50% of final compensation (unless over age 45 w/ less than 10 yrs of service—5% of final compensation for ea. year of service credit) Workers’ Compensation reduction: STRS benefits are reduced dollar-for-dollar for benefits paid under the workers’ compensation system for the same impairment 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

18 STRS Disability Retirement
Coverage B No eligibility age threshold, but generally min. 5 years Benefit: 50% of final compensation Workers’ Compensation reduction: STRS benefits are reduced dollar-for-dollar for benefits paid under the workers’ compensation system for the same impairment 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

19 STRS Disability Retirement
Permanent disability under the workers’ compensation scheme does NOT equate to disability for STRS disability retirement WC: PD refers to a certain amount of permanent impairment or injury STRS: Disability refers to whether a teacher is competent and capable of performing the job 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

20 STRS Disability Reinstatement
Must request reinstatement within 39 months from the start of disability, NOT the “approval of” disability or commencement of disability benefits Franzosi v. Santa Monica Community College Dist. (2004) 118 Cal.App.4th 442  10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

21 STRS Disability Reinstatement
Raven v. Oakland Unified Sch. Dist. (1989) 213 Cal.App.3d 1347   Tenured teacher on sick leave for work-related mental illness is entitled to reinstatement Must show medical evidence of recovery sufficient to resume teaching To refuse reinstatement, employer must prove mental incompetence to resume teaching duties, and must comply with the procedural provisions of Education Code section (mental competency hearing/due process) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

22 *For Educational Purposes Only * * NOT LEGAL ADVICE *
Raven v. Oakland USD (1989) Ed. Code applies to suspensions and transfers re: mental disabilities BUT the Raven case equates refusal to reinstate with suspension Triggers Ed. Code section hearing procedure 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

23 *For Educational Purposes Only * * NOT LEGAL ADVICE *
Raven v. Oakland USD (1989) If STRS denies disability retirement based upon the teacher’s ability to work, this satisfies the employee’s burden of competency At this point, the burden shifts A school district cannot circumvent its burden of proving mental incompetency by relying on its collective bargaining agreement It must either reinstate or hold a hearing 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

24 Lesson re: Reinstatement
Re: mental disabilities, the choices are: Reinstate, or Hold a competency hearing, or Provide STRS disability retirement benefits, unless the disability was not caused by work (in which case STRS retirement [not disability retirement] may apply) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

25 *For Educational Purposes Only * * NOT LEGAL ADVICE *
Backpay Reinstatement requires full backpay from the time of “unlawful discharge.” Ex: Denial of reinstatement without a hearing Raven (1989) Backpay can be offset by permanent disability benefits under workers’ compensation Policy: Prevent double recovery 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

26 *For Educational Purposes Only * * NOT LEGAL ADVICE *
CERL / 1937 Act County Employees Retirement Law of 1937 Purpose: Provide retirement benefits to employees of member Counties Government Code: Title 3, Division 4, Part 3, Chapter 3 and 3.9 Sections 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

27 CERL / 1937 Act: Counties Classified
The counties of the State of California are classified according to their population G.C. Section 28020 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

28 Counties in Order Size / Class
Los Angeles Orange San Diego Alameda San Bernardino Sacramento Contra Costa San Mateo Fresno Ventura Kern San Joaqin Santa Barbara Marin Sonoma Stanisluas Tulare Merced Imperial Mendocino 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

29 “Permanent Incapacity” CERL / 1937 Act
Any member permanently incapacitated from the performance of duty shall be retired for disability regardless of age if, and only if: (a) Incapacity is a result of injury or disease arising out of and in the course of the member’s employment, and such employment contributes substantially to such incapacity, OR (b) Five years of service, AND (c) The member has not waived retirement in respect to the particular incapacity or aggravation thereof. - G.C 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

30 Competent Medical Evidence Required
In determining eligibility for disability retirement, the board shall not consider medical opinion unless it is deemed competent. - G.C 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

31 Standard May Vary Between Counties
Example: Contra Costa County requires: 10 years of service Defines “Permanently incapacitated,” to require that the member is unable permanently to engage in any substantial gainful employment. - G.C 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

32 *For Educational Purposes Only * * NOT LEGAL ADVICE *
Conflict of Laws When a charter conflicts with the general law on a matter of local concern, the charter prevails. City of Los Angeles v. I.A.C.; Fraide (1965) 63 C.2d 242, 46 C.R. 97, 30 C.C.C. 243 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

33 Board’s Independent Review
The Board of Retirement is not bound by a decision of the W.C.A.B. finding the employee's condition to be industrial. Kimbrough v. Oakland Police & Fire Retirement System (1984) 161 C.A.3d 1143, 208 C.R. 112 Contrast this to PERS IDRs where the issue of causation must be submitted to the WCAB. -G.C et seq. 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

34 Calculating Benefits CERL / 1937 Act
As of the date on which the retirement allowance commences. G.C EE may elect to defer CERL retirement allowance if move to another County / retirement system GC et seq. 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

35 Advanced Disability CERL / ’37 Act
30 days from the date of issuance of the last disbursed of the following: (1) The employee's last regular payment of wages or salary. (2) The employee's last payment of benefits under Section 4850. (3) The employee's last payment for sick leave. 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

36 Advanced Disability CERL / ’37 Act
If the EE does all of the following, ER shall make advanced disability payments: (1) Files an application for disability retirement at least 60 days prior to the payment of benefits pursuant to subdivision (a). (2) Fully cooperates in providing the employer with medical information and in attending all statutorily required medical examinations and evaluations set by the employer. (3) Fully cooperates with the evaluation process established by the retirement plan. 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

37 Advanced Disability CERL / ’37 Act
**ER’s obligation to commence Advanced payments within 30-days shall be tolled by EE's failure to comply with these requirements. 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

38 Advanced Disability CERL / ’37 Act
Advanced Payments shall continue until the claimant is approved or disapproved for a disability allowance pursuant to final adjudication as provided by law. Ie: All appeals exhausted 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

39 Temporary Disability CERL / 1937 Act
Benefits in lieu of temporary disability when Safety member is off work due to an industrial injury. (LC 4850) If the industrial injury is the reason for the retirement, temporary disability indemnity is payable after retirement (unless CalPERS) - USC v WCAB (Miller), 48 Cal. Comp. Cases 477 (1983) - Moore v Cty. of Orange, 2010 Cal.Wrk.Comp. P.D.LEXIS 370 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

40 TAKE ‘EM BACK OR RETIRE ‘EM
10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

41 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 full-time, full-pay, limited duty” position. Raygoza v. County of Los Angeles (1993) 17 Cal. App.4th 1240,1246 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

42 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 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

43 COORDINATION OF WORK COMP & HR
10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

44 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 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

45 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? 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

46 COORDINATION OF HR & SHERIFF’S DEPARTMENTS
10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

47 Coordination of HR & Sheriff’s 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 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

48 Coordination of HR & Sheriff’s 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. 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

49 Coordination of HR & Sheriff’s 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 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

50 Coordination of HR & Sheriff’s Departments
Thelander v. City of El Monte (1983) Part-time reserve officer required her 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) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

51 *For Educational Purposes Only * * NOT LEGAL ADVICE *
PERS IDR: Medical Exam Separate PERS medical exam & report “Substantial Incapacity” vs. prophylactic work restrictions Educate doctor on the PERS law and defenses Credentials of doctor Education, research, peer-reviewed & published articles, etc. 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

52 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

53 *For Educational Purposes Only * * NOT LEGAL ADVICE *
IDR DEFENSES 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

54 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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. 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) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

55 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

56 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

57 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

58 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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 (1983) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

59 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

60 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

61 *For Educational Purposes Only * * NOT LEGAL ADVICE *
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) 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *

62 *For Educational Purposes Only * * NOT LEGAL ADVICE *
* END * “End of the Rainbow” IDR Implications Industrial Disability Retirement (IDR) & Crossover Employment Law Issues for Public Safety Officers Dave Thomas, Partner; Riverside Office (951) Brenna Hampton, Managing Attorney; San Diego Office (619) Jessie Zaylia, Associate; San Diego Office (619) HANNA BROPHY MacLEAN McALEER & JENSEN, LLP 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE *


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