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

 

California Law Provides for Limited Reinstatement

The California statutory law governing Orange County members of the retirement system, provides for a limited reinstatement following a denial of a disability retirement:

31725. Permanent incapacity for the performance of duty shall in all cases be determined by the board.

If the medical examination and other available information do not show to the satisfaction of the board that the member is incapacitated physically or mentally for the performance of his duties in the service and the member’s application is denied on this ground the board shall give notice of such denial to the employer.
The employer may obtain judicial review of such action of the board by filing a petition for a writ of mandate in accordance with the Code of Civil Procedure or by joining or intervening in such action filed by the member within 30 days of the mailing of such notice. If such petition is not filed or the court enters judgment denying the writ, whether on the petition of the employer or the member, and the employer has dismissed the member for disability the employer shall reinstate the member to his employment effective as of the day following the effective date of the dismissal.
 
The California Supreme Court, in Stephens v. Cnty. of Tulare, 38 Cal.4th 793, (2006), interpreted the term “dismissed” saying that it means termination [and in so doing considered preceding case law to define what termination means].

In Stephens, after the Tulare County Retirement System’s final decision to deny Mr. Stephens a disability retirement, he sought reinstatement to his former job. Mr. Stephens was returned to his job as a Detention Specialist. This was not a lessor paying or different job, but was his actual last job classification. Mr. Stephens, however, filed a lawsuit seeking reinstatement of back pay and benefits for the time before he requested reinstatement and before the Retirement System’s final decision, during the time he was voluntarily off work because of his medical condition.

Thus, the Stephens’ court ​had to determine whether Mr. Stephens was entitled to retroactive reinstatement for the period of time ​from when Mr. Stephens voluntarily went off work ​up to the time of the Retirement System’s final decision denying his disability retirement. It is during that specific time that the Supreme Court determined Mr. Stephens was not dismissed (terminated) so he could not claim entitlement to reinstatement for that specific time period.

Since ​the ​Stephens ​decision, employers have ​pushed to expand its ​application so as to deny employees reinstatement following denial of disability retirement applications. Employers merely claim the employee was not terminated so it has not obligation to reinstate the employee to their job.

In January 2013, the County of Orange was successful in denying reinstatement to a deputy probation counselor to her job. In th​at​case, ​probation counselor was denied disability retirement by the Orange County Employees’ Retirement System and also denied reinstatement to her job as a deputy probation officer. She agreed she was disabled from her job ​because her disability did not magically disappear ​just ​because the Retirement System claimed she was not disabled from her job. She asserted though she was entitled to reinstatement to her safety status and equivalent pay given her disability retirement application was denied. The Court disagreed​ and said that because the plaintiff was physically unable to perform the duties of a deputy juvenile correctional officer II, the County did not refuse her request for reinstatement following a leave of absence, or, more accurately, that it did not wrongfully refuse her request to reinstatement because she was not dismissed. The Court ignore​d​the employee’s right to restoration to paid status by asserting that ​her right to reinstatement did not arise ​because the Court already had determined that she had not been dismissed.

However, the California Supreme Court in Stephens found that “a failure to reinstate an employee, following a period of permissive, voluntary leave, can constitute a ‘dismissal’ despite the absence of a formal termination or firing​.​” ​This latest case involving the Orange County probation counselor appears to conflict with the Supreme Courts ​pronouncement in its Stephens decision.

​The net result is that in Orange County an employee may be denied reinstatement if he or she is incapable of performing the duties of his or her former job and if other jobs, lessor paying alternative jobs, within his or her residual capabilities are available, he or she may be denied restoration to paid status because ​it is now permissible ​to claim that he or she ​was ​​never ​dismissed. ​The Orange County result appears to be in conflict with other applicable appellate decisions making this a matter of continued need to assess on a case-by-case basis.​

The California law firm of Faunce, Singer and Oatman has successfully handled thousands of cases related to labor law.   If you have had a denial of pension benefits, or been discriminated against, please contact the law firm of Faunce, Singer and Oatman at 1-800-874-2284.

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

CalPERS Denies Members Right to File Disability Retirement Claim

CalPERS Denies Members Right to File Disability Retirement Applications When the Member is Terminated

At times, CalPERS precludes its members from filing applications for disability retirement when it obtains information from its contracting agencies that the employee/member has been terminated from work. CalPERS relies on Haywood v. American River Fire Protection Dist., (1998) 67 Cal.App.4th 1292 to support its position. However, to preclude an application for disability retirement under CalPERS law, “a person must be terminated for cause and Haywood does not apply where the cause for the dismissal was the result of a disabling medical condition, or where the dismissal would be “preemptive of an otherwise valid claim for disability retirement.” Nonetheless, CalPERS staff still may recommend denying its member the right to file an appeal. This forces the member to request an administrative hearing to prove the dismissal was based upon disability and was not for cause.

In the case of Patton v. Governing Board, (1978) 77 Cal.App.3d 495, a bus operator was denied his sick leave request on the ground that he was fired from his bus driver position by the San Jacinto Unified School District because he no longer had a DMV certificate to drive a school bus. However, the District was aware of its bus operator’s continuing medical condition which was the only reason he did not have a DMV certificate to drive a school bus. The court said that the bus operator lost his DMV certificate to drive a bus solely because of his back disability. Therefore, the court determined that the member was actually terminated because of disability.

Thus, in a subsequent case to Haywood, Smith v. City of Napa, 120 Cal.App.4th 194, (2004), the court, “repeatedly cautioned that the Haywood holding would not apply where the cause for dismissal was the result of a disabling medical condition, or where the dismissal would be “preemptive of an otherwise valid claim for disability retirement.” The court specifically cited, the Patton case showing such a circumstance. The Smith Court also noted that there may be reasons why the member would be allowed to apply for a disability retirement because of the demands of fundamental fairness.

The California law firm of Faunce, Singer and Oatman has successfully handled thousands of cases related to labor law.   If you have had a denial of pension benefits, or been discriminated against, please contact the law firm of Faunce, Singer and Oatman at 1-800-874-2284.

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

Challenges when Service Retirement taken at Disability Retirement

On behalf of Attorney Jane Oatman of the Law Offices of Faunce, Singer and Oatman.  Posted in Disability Retirement, on Friday, March 22, 2013.

Public employees may qualify for a service retirement at the same time they are also considering filing for disability retirement. Most are told by the retirement system that retiring for service while filing for disability retirement will not impact their disability retirement claims. The processing of the disability retirement application may not be impacted, but the actual facts needed to support your disability retirement  may be impacted.

Employers often claim after the employee takes a service retirement and applies for disability retirement, that the claimed disability could have been accommodated. The retirement system argues that the employee could have continued to work with the disability, but simply opted to retire. The “after the fact” accommodation is relied upon to defeat the disability retirement application. Thus the disabled employee is faced with the difficult task of having to prove that the alleged accommodation would fail or that even with the accommodation the employee remains disabled from the job.

If an employee has taken a service retirement and the disability retirement application is denied, the only option is to go to a hearing because the employee cannot return to work given that the employee retired.  If you, or someone you know, is facing this challenge, a wise move is to engage the services of an attorney that specializes in disability retirement.

Jane Oatman
Faunce, Singer & Oatman
Fighting for the Rights of Disabled Public Employees

www.public-pensions.com