USUAL DUTIES MUST BE DETERMINED FOR DISABILITY RETIREMENT

Determining “usual duties” is required before deciding whether a member is permanently incapacitated from their job. An employee’s usual duties are the job functions that s/he must be able to perform. If the employee has work restrictions, those work restrictions are compared to the usual duties in order to determine whether the employee is able to perform their job.  Many times an employee’s usual duties is a main issue at disability retirement hearings.

Job classifications are broad and contain many examples of expected job duties. However, usual duties are not necessarily restricted to one’s last job assignment, but rather by the ability to perform all the required tasks of a particular job classification. Therefore, it is critically important establish the actual job requirements. The employer’s position, as to whether it can accommodate the injured employee, is critical to the disability determination. If an employee retires or severs their employment status before the disability retirement claim is complete, obtaining that critical evidence is compromised.

CalPERS has taken the position that its members are not substantially incapacitated from their jobs if they can perform their most recent specific duties. For instance, recently CalPERS took the position that a CHP Officer, who worked as a Public Affairs Officer, was not substantially incapacitated from his CHP job because his disability did not prevent him from continuing to perform those lighter duties. The Officer, however, argued that his disability did prevent him from carrying out the 14 critical tasks required of all CHP Officers. The Court of Appeal agreed with the Officer and said that he had to be able to fulfill all of the required tasks not just those of a Public Affairs Officer. In fact, a state statute required that the Officer must be able to perform all the required duties each and every day.

Retirement Systems will often obtain medical opinions that contradict the member’s doctor’s opinions. Such disagreements are often based on the Retirement System’s Medical Advisor’s opinion as to what duties are required and also ignores the employer’s ability to accommodate the injured employee’s restrictions. These contradictions created by the Retirement System’s medical experts must often be challenged before the injured employee retires for service or otherwise severs their employment. Once the employment relationship is severed, the injured worker only gets one opportunity to prove entitlement to disability retirement.

Jane Oatman
Faunce, Singer & Oatman
Fighting for the Rights of Disabled Public Employees
http://www.public-pensions.com
1-800-874-2284