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*For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar -- 1 10/4/12 “End of the Rainbow” IDR Implications Industrial Disability.

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Presentation on theme: "*For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar -- 1 10/4/12 “End of the Rainbow” IDR Implications Industrial Disability."— Presentation transcript:

1 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar /4/12 “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

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

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

4 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar -- 4 CalPERS (PERS) Public Employees Retirement System

5 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar -- 5 PERS IDR: Benefits Benefits to Local Safety Officers 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

6 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar -- 6 Benefits of Litigating IDRs

7 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar -- 7 Benefits of Litigating IDRs

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

9 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar -- 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” “Disability or death as a result of injury or disease arising out of and in the course of his or her employment”  GC Causation of Injury vs. Causation of Disability Causation of Injury vs. Causation of Disability

10 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar PERS IDR: “Incapacity” “Disability of permanent or extended and uncertain duration... On the basis of competent medical opinion” “Disability of permanent or extended and uncertain duration... On the basis of competent medical opinion”  GC “Substantial Incapacity” – i.e., Substantially unable to perform the usual duties of his/her position “Substantial Incapacity” – i.e., Substantially unable to perform the usual duties of his/her position  Mansperger v. PERS, Cal.App.3d 873 (1970)

11 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar INDUSTRAL CAUSATION/ INCAPACITY MATRIX AdmitIncapacityDisputeIncapacity Admit Industrial Causation IDRHearingwithALJ Dispute Hearing at WCAB (Gov. Code 21166) (causation only) Hearing (1) WCAB (2) ALJ

12 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar PERS IDR: Application Who should file the application? Who should file the application? – ER’s must file IDR for eligible member “believed to be disabled”  Govt. Code Why does it matter? Why does it matter? – Burden of proof Consequences for ER not filing Consequences for ER not filing – Writ of Mandate to Superior Court  Lazan v. County of Riverside, 140 Cal.App.4th 453 (2006)

13 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar STRS State Teachers Retirement System

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

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

16 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar STRS Disability Retirement Eligibility: 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) Two coverage options (A & B)

17 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar STRS Disability Retirement Coverage A 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 Workers’ Compensation reduction: STRS benefits are reduced dollar-for-dollar for benefits paid under the workers’ compensation system for the same impairment

18 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar STRS Disability Retirement Coverage B 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 Workers’ Compensation reduction: STRS benefits are reduced dollar-for-dollar for benefits paid under the workers’ compensation system for the same impairment

19 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar STRS Disability Retirement Permanent disability under the workers’ compensation scheme does NOT equate to disability for 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

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

21 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar STRS Disability Reinstatement Raven v. Oakland Unified Sch. Dist. (1989) 213 Cal.App.3d 1347 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 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) 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)Education Code section 44942Education Code section 44942

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

23 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar 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 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 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

24 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Lesson re: Reinstatement Re: mental disabilities, the choices are: 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)

25 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Backpay Reinstatement requires full backpay from the time of “unlawful discharge.” 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 Backpay can be offset by permanent disability benefits under workers’ compensation –Policy: Prevent double recovery

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

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

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

29 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar “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: 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

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

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

32 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar 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

33 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar 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. 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 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. Contrast this to PERS IDRs where the issue of causation must be submitted to the WCAB. - G.C et seq.

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

35 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar 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. (1) The employee's last regular payment of wages or salary. (2) The employee's last payment of benefits under Section (2) The employee's last payment of benefits under Section (3) The employee's last payment for sick leave. (3) The employee's last payment for sick leave.

36 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar 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). (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. (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. (3) Fully cooperates with the evaluation process established by the retirement plan.

37 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar 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.

38 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar 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

39 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Temporary Disability CERL / 1937 Act Benefits in lieu of temporary disability when Safety member is off work due to an industrial injury. (LC 4850) 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) 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

40 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar TAKE ‘EM BACK OR RETIRE ‘EM

41 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Take ‘Em Back Or Retire ‘Em Employee “cannot, at the same time, be denied a disability retirement and also denied employment.” 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. 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.4 th 1240,1246

42 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Take ‘Em Back Or Retire ‘Em Lazan v. County of Riverside (2006) 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 Writ of Mandate to Superior Court

43 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar COORDINATION OF WORK COMP & HR

44 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Coordination of Work Comp & HR WC cases must be defended WC cases must be defended Integrated approach increases likelihood of victory Integrated approach increases likelihood of victory Counsel with Expertise in IDR laws Counsel with Expertise in IDR laws Resistance of IDR has positive deterrent effect on future filings Resistance of IDR has positive deterrent effect on future filings $$$ savings with joint settlements $$$ savings with joint settlements

45 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Coordination of Work Comp & HR Fight Industrial Causation? Fight Industrial Causation? Multiple Prior Claims Multiple Prior Claims – “Medical-only”; PD stipulations; prior surgeries No AMEs (or limit scope of exam) No AMEs (or limit scope of exam) Safety Officer Safety Officer – Nearing retirement – Expectation/Culture for PERS IDR?

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

47 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Coordination of HR & Sheriff’s Departments TTD / change of status reports TTD / change of status reports – Work restrictions – Temporary light duty positions QIW / RTW determinations QIW / RTW determinations – Different legal standard between WC & IDR “Interactive Process” (ADA/FEHA) “Interactive Process” (ADA/FEHA) Reduce time lag between P&S status and IDR Reduce time lag between P&S status and IDR

48 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Coordination of HR & Sheriff’s Departments RTW Policy RTW Policy – Permanent “Light duty” – Job Accommodation (ADA/FEHA) Consistent positions between departments Consistent positions between departments Essential Job Duties Essential Job Duties – Hiring v. retention criteria – Cadet, deputy, sergeant, lieutenant, etc.

49 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Coordination of HR & Sheriff’s Departments Job duties of a Deputy Sheriff Job duties of a Deputy Sheriff What happens on patrol is highly variable What happens on patrol is highly variable More strenuous duties occasionally req'd. More strenuous duties occasionally req'd. POST-Training; annual recertification POST-Training; annual recertification Usual duties v. occasional duties Usual duties v. occasional duties Injuries pose danger to deputy, fellow officers and the public Injuries pose danger to deputy, fellow officers and the public Duties will inevitably worsen injury Duties will inevitably worsen injury

50 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Coordination of HR & Sheriff’s Departments Thelander v. City of El Monte (1983) Part-time reserve officer required her to attend the police academy 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 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 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” Must be "capable and prepared for the worst every day” Court found the strenuous activities to be “usual duties” Court found the strenuous activities to be “usual duties”  147 Cal.App.3d 736 (1983)

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

52 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar Witness Preparation Expert Medical Testimony Expert Medical Testimony – Live witness – Prophylactic vs. actual work restrictions – Detailed understanding of job duties Sheriff’s Department Sheriff’s Department – Essential job functions – Light duty positions

53 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar IDR DEFENSES

54 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar 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. “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. 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)

55 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar IDR Defenses Hosford v. Bd. Of Admin. (1978) Employee can be unable to perform some of his/her duties without being substantially incapacitated 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 Fear of sustaining further injury (or aggravation) does not substantially incapacitate an employee Disability must be existing, and not prospective in nature 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. 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)

56 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar IDR Defenses Craver v. City of LA (1974) Police Officer not entitled to IDR since employer gave him permanent modified/limited assignment Police Officer not entitled to IDR since employer gave him permanent modified/limited assignment Despite inability to perform all police duties Despite inability to perform all police duties “Permanent Modified Light-Duty” “Permanent Modified Light-Duty”  42 Cal.App.3d 76 (1974)

57 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar IDR Defenses Winslow v. City of Pasadena (1983) Retired motorcycle officer could be reinstated where Department created light-duty positions after his retirement 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 Provided that Department supplied light-duty positions in the past New position must be real job New position must be real job

58 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar IDR Defenses Stuessel v. City of Glendale (1983) Permanent Modified Light Duty 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 Retained Police Officer Classification Same salary and benefits Same salary and benefits Same promotional opportunities Same promotional opportunities  141 Cal.App.3d 1047 (1983)

59 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar IDR Defenses Reynolds v. City of San Carlos (1981) Firefighter’s ability to return to work likely would have been restored with surgery Firefighter’s ability to return to work likely would have been restored with surgery Unreasonable refusal to submit to corrective surgery Unreasonable refusal to submit to corrective surgery IDR denied IDR denied  126 Cal.App.3d 208 (1981)

60 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar IDR Defenses Haywood v. Amer. River Fire (1998) Firefighter terminated for cause following disciplinary actions Firefighter terminated for cause following disciplinary actions No valid claim before termination No valid claim before termination Can’t claim IDR after separation from employment Can’t claim IDR after separation from employment Termination for cause severed employer/employee relationship Termination for cause severed employer/employee relationship  67 Cal.App.4th 1292 (1998)

61 10/4/12 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar IDR Defenses Smith v. City of Napa (2004) Employee terminated for reasons: 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 On date disability claim was denied, officer was no longer an employee Cites Haywood with approval Cites Haywood with approval  120 Cal.App.4th 194 (2004)

62 *For Educational Purposes Only * * NOT LEGAL ADVICE * COSIPA’s Superstitions Seminar /4/12 * 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


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