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Disability Retirement

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PART 1

The Process

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What’s the process?

1. Application

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2. Investigation

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3. Independent Medical Exam

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4. Staff Recommendation to Board

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Case Load and Staffing

Approximately 75 -100 cases are currently being processed.

4 staff members process the initial phase: 2 Disability Investigators 2 Disability Office Specialists

3 staff members process the subsequent phases: 2 Disability Attorneys ~ Hearings 1 Attorney ~ Superior Court Writ of Mandamus

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Initial Application

The application consists of the following documents:

Application Employee’s Statement of Disability Information Release Attorney Designation form (if applicable) Physician’s Statement of Disability

Applications will not be accepted without a completed physician’s statement of disability or medical report supporting the claim.

The applicant may submit their forms in person or by US mail.

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Filing the Application

All forms must be completed properly.

An Employee’s/Applicant’s statement is taken.

Benefit counseling is done.

Confirmation of accepted application is sent to the applicant.

Employer filed applications require member notification and involvement.

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Filing the Application

Processing time is approximately 9-12 months from receipt of completed application to Board decision

Processing time depends on:

the complexity of the case the number of conditions being evaluated and the level of applicant cooperation

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Why does it take so long?

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Evidence Gathering

The gathering of evidence can take anywhere from 1-5 months.

Requests for information are sent to the employer: Department file Central file Personnel file Worker’s Compensation file Employer & Supervisor’s statements

Additional medical records are requested from the applicant’s personal physicians if necessary.

Follow-up requests are made.

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Disability Investigator Roles

The Investigator evaluates the evidence consisting of the applicant’s statements, employer records and medical records.

Seeks clarifications or explanations of discrepancies.

Determines whether multiple conditions will be evaluated based upon the medical evidence.

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Pre-Med Phase

The Pre-Med phase typically takes 1-3 months.

A chronological index of all of the evidence is created and sent to the applicant for review.

The applicant is given the opportunity to add medical records. Applicants and their

attorneys routinely request extensions to gather additional evidence.

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BOE Board Ordered Examination

The examination phase typically takes 2-3 months.

An appointment is made with a panel physician.

Multiple conditions require numerous evaluations.

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BOE Report

Reports are typically received 30-45 days from the date of the exam.

The Investigator will follow up with the panel physician if the report is not received timely.

The Investigator reviews the report and any discrepancies or inconsistencies are

addressed.

Supplemental reports are requested if necessary.

A copy is provided to the applicant (and attorney if applicable).

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Final Investigations

The Investigator interviews coworkers, supervisors and witnesses.

Review of job assignment, usual duties and the possibility of an accommodation.

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Final Preparation

The Investigator reviews the entire file. Any last minute questions are addressed. The staff recommendation is finalized. All cases are reviewed by the Member

Services Director. The application is tentatively placed on next

available Board Agenda and prepared for the Committee Review.

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Committee Review

The Disability Committee, made up of OCERS personnel, reviews all disability applications prior to placement on a Board agenda.

The Committee is looking for: Substantial evidence Legal standard Reasonable accommodation

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Board Materials

Board Materials consist of: Staff recommendation Board options Staff analysis (including accommodation) Medical analysis Employee and employer statement

Applicant receives written notification with details of the staff recommendation and the date/time of the meeting.

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The Board’s Adjudicatory Role

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Ultimate Decision Maker

The Board must pay benefits only to those who are eligible.

(City of Sacramento v. PERS)

The Board of Retirement exclusively determines “permanent incapacity” and “service-connection”.

(Masters v. San Bernardino CERA)

The Board is not bound by any decision made in the Workers’ Compensation system or other legal schemes such as Social Security.

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The Board’s Role

The Board determines, in all cases, whether a member is permanently incapacitated for duty and whether that incapacity is service connected.

The Board makes this determination after reviewing the evidence presented in support of disability retirement applications, along with the staff recommendation.

The Board should ask questions of staff and/or the applicant if necessary.

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PART 2

The Legal Standard

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Applicant’s Burden of Proof

The applicant must prove by a preponderance of “Substantial Evidence” that:

• He is Incapacitated to perform his usual duties.

• His incapacity is Permanent.

• His job Caused the incapacity (for service connected disability)

Government Code §31720 “Any member permanently incapacitated for the performance of duty shall be retired…if the member’s 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.”

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SUBSTANTIAL EVIDENCE

Based on correct material facts Based on complete information Based on applicable legal theories Supported by analysis

A medical opinion is not substantial evidence when the physician:

relies on false information, or misunderstands the facts is unaware of complete applicable medical history ignores a material fact applies the wrong legal standard (Work Comp, Social Security) provides no analysis to support his opinion does not demonstrate a mechanism of injury

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WHAT IS INCAPACITY?

“Incapacitated for the performance of duty … means the substantial inability of the applicant to perform his usual duties”

Mansperger v. PERS (1970) 6 Cal.App.3d 873

Applied to the CERL by:

Harmon v. Board of Retirement of San Mateo Schrier v. San Mateo County ERS Curtis v. Board of Retirement

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SUBSTANTIAL INABILITY

An applicant proves “Substantial Inability” by establishing:

• He cannot perform duty at all, Ex. truck driver goes blind; can’t drive

• Performing the duty creates high probability of further injury, or discomfort so severe so as to preclude further effective performance

Ex. teacher has asthma, chalk dust severely aggravates her symptoms

Hosford v. Bd. of Admin.; Wolfman v.Bd. of Trustees; Thelander v. City of El Monte

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SUBSTANTIAL INABILITY

Substantial inability is not proven by: Performance of duty with mild discomfort

Thelander v. City of El Monte

Fear of future injury Hosford v. Board of Administration Wolfman v. Board of Trustees

Speculative future disability Wolfman v. Board of Trustees Hosford v. Board of Administration

Inability to perform “full range” of duties Harmon v. Board of Retirement

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USUAL DUTIES

1. Usual duties are: Performed frequently Performed in a specific assignment (Barber)

2. An applicant does not prove incapacity, if he cannot perform duties that are:

A remote or uncommon occurrence (Mansperger Listed in a job description, but not actually performed

(Hosford) Voluntary duties

3. An applicant does not prove incapacity, If he is capable of performing the usual duties of another

assignment in his job class (Barber, Craver, O’Toole) (Reasonable Accommodation)

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PERMANENCY

An applicant proves his incapacity is permanent by showing that:

Further change for better or worse is not reasonably anticipated under usual medical standards. (Sweeney v. Industrial Acc. Com.)

He exhausted standard medical treatment – (mitigation of damages)

(Reynolds v. City of San Carlos)

He has not unreasonably refused untried standard risk medical treatment, unless required to do so by his religion. (Montgomery v. Bd. Of Retirement)

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SERVICE CONNECTION

An applicant proves that his incapacity is service connected if there is substantial evidence of a real and measurable link between the job and the incapacity.

What does “Real and Measurable” mean:

Material and traceable connection Greater than infinitesimal or inconsequential More than “any” but may be less than the “principal” cause

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SERVICE CONNECTION

Service connection is established, if:

The job is not the sole cause, but is a substantial cause, (Heaton v. Marin County Board of Retirement)

Unlike Workers’ Compensation, psych cases do not require more than a 50% contribution by the job

The job did not initially cause the incapacitating condition, but did aggravate the condition causing incapacity at an earlier time. (Turner v. WCAB)

Pre-existing condition aggravated → Incapacity

The employer takes the employee as they find him

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SERVICE CONNECTION

Service connection is not established:

if the “link” between the job and the incapacity is speculative or incapable of being quantified or measured,

OR

the job was merely a “passive stage” on which the incapacitating condition played out. (Atascadero Unified School Dist. V . WCAB)

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??Questions??