ATTACHMENT A

RESPONDENT'S PETITION FOR RECONSIDERATION

Attachment A

Andrew B. Scott, Esq.State Bar Number: 302844

ADAMS, FERRONE & FERRONE4333 Park Terrace Dr., Ste. 200Westlake Village, CA 91361(805) 373-5900 * Fax (818) 874-1382

Attorneys for Andre Metzler

BOARD OF ADMINISTRATION

CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM

STATE OF CALIFORNIA

In the Matter of the Reinstatement from

Industrial Disability Retirement of

ANDRE J. METZLER,

Respondent,

and

CALIFORNIA SUBSTANCE ABUSE

TREATMENT FACILITY AND STATE

PRISON - CORCORAN, CALIFORNIADEPARTMENT OF CORRECTIONS AND

REHABILITATION,

Respondent.

CASE NO.: 2016-0226

OAHNO.: 2016070268

PETITION FOR

RECONSIDERATION

Respondent, Andre Metzler, by and through his attorneys of record, Adams, Ferrone &

Ferrone, hereby submits this Petition for Reconsideration of the Decision issued by the Board ol

Administration of the California Public Employees Retirement System and mailed on March 20

2017.

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^ II ISSUE PRESENTED4

^ Has GalPERS met its burden to show that Respondent Metzler is no longer permanently

^ '' and substantially incapacitated fi"om the performance of duty?

SHORT ANSWER

^ No. Because the medical opinions of CalPERS' medical evaluator, Daniel D'Amico

M.D., are not competent medical opinion, CalPERS has failed to meet its burden of proof. Thus

the Decision ordering reinstatement is not supported by substantial evidence, reconsideration

II should be granted, and the Decision rescinded.

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1MI STATEMENT OF FACTS

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II Respondent Andre Metzler was employed by California Substance Abuse Treatment18 Facility and State Prison - Corcoran, California Department of Corrections and Rehabilitation

18 as a Correctional Officer. By virtue of this employment. Respondent Metzler was a state safety

20 member of CalPERS

21 On June 21, 2012, Respondent Metzler sustained injury arising out of and in the course of

22 employment to his right wrist in the form of a scaphoid fracture. The injury occurred when he

23 was striking a punching bag during self-defense training at the prison. (Exhibit B: Report of

24 Roger S. Sohn, M.D., dated February 24, 2014, pp. 2-4; Hearing Transcript pp. 58-61.) While

25 treating physicians could not immediately ascertain the precise nature of the injury. Respondent

2 6 Metzler's symptoms worsened and on September 21, 2012, his fracture was accurately

27 diagnosed and he was taken off work, never to return. At that time Respondent Metzler's wrist

28 was placed in a cast. When the bone did not heal. Respondent Metzler underwent surgery for a

bone graft as well as placement of a compression screw. He again wore a cast for several

months before undergoing physical therapy. His condition did not materially improve

On December 19, 2013, Respondent Metzler filed an application for industrial disability

I retirement on the basis of this orthopedic (right wrist) disability

On February 24, 2014, Respondent Metzler was examined by Roger S. Sohn, M.D., a

boai'd certified orthopedic surgeon whom the Department of CoiTections and Respondent

Metzler had agreed to utilize as the medical evaluator for his workers' compensation claim. (See

generally Exhibit B: Report of Roger S. Solin, M.D., dated February 24, 2014.) Dr. Sohn took

a medical history and reviewed all of the relevant medical records. (Id. at 2-23.) Dr. Sohn noted

that Respondent Metzler experiences numbness and tingling in his right hand. (Id at 4, ̂ 5.) Dr

Sohn's physical examination revealed that Respondent Metzler's range of motion in his wrist

12 was significantly impaired. (Id. at 6, 24-25.) Dr. Sohn also conducted a test of Respondent

12 Metzler's grip strength using the Jamar Dynamometer, a procedure conducted in accordance

1'^ with the American Medical Association's Guides to the Evaluation of Permanent Impairment^

12 Fifth Edition. (Id. at 7, 25.) Dr. Sohn instructed Respondent Metzler to squeeze the device

12 three times with each hand, resulting in measurements of 40/41/42 kilograms on the left hand

I'' 21/22/23 kilograms on the right hand.' The Jamar Dynamometer testing revealed that

18 Respondent Metzler had lost approximately 50% of the grip strength in his right (dominant)

19 hand, which is now approximately half the strength of his left (nondominant) hand. As a

20 result, under "Work Restrictions," Dr. Sohn found that "[t]he patient cannot do repetitive

21 forceful gripping or grasping." (Id. at 24.) As a result. Dr. Sohn opined that Respondent

22 Metzler was permanently incapacitated from duty as a Correctional Officer. (Id. at 25.)

23 II Respondent Metzler's submitted the reports of Dr. Sohn and his treating physician in the

24 II specialty of orthopedic surgery, Marshall Lewis, M.D., to CalPERS to substantiate the fact that25 II he is permanently and substantially incapacitated from duty as a Correctional Officer26

27 The average grip strength for the dominant hand of a person of 30-39 years of age is 49.2 kg, and forpersons 40-49 years of age it is 49.0 kg. (AM A Guides to the Evaluation of Permanent Impairment, p. 509 (5*'' Ed.

28 2000).) Available online at https://www.researchgate.net/file.PostFileLoader.html?id=55c9f6f25f7f71ee488b459b&'' assetKey=AS%3A273829656498176%401442297485241

^ " On April 15, 2014, CalPERS approved Respondent Metzler's application for industrial11 ^ ^ ^disability retirement on the basis of his orthopedic (right wrist) disability as evaluated by Drs.

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Sohn and Lewis. (Exhibit 2.)

On April 10, 2015, less than one year after determinins that Respondent Metzler was

permanently and substantiallv incapacitated from dutv^ and with no evidence to indicate a

change in Respondent Metzler's medical condition, CalPERS sent a letter informing

Respondent Metzler that his industrial disability retirement was under review. (Exhibit 3.)

On October 12, 2015, Respondent Metzler attended a medical evaluation conducted by

Daniel D'Amico, M.D., a physician selected by CalPERS. In his examination report, signed

under penalty of perjury. Dr. D'Amico discussed his failure to examine Respondent Metzler's

grip strength: "I tried to do a Jamar but he would not flex his forearm muscles." (Exhibit 13:

Report of Daniel M. D'Amico, dated October 12, 2015, p. 14, H 2.) Inexplicably, however. Dr.

D'Amico still claimed to quantify Respondent Metzler's grip strength: "It was noted that the

grip was weaker on the right by a little less than 20 percent." (Id. H 4, last line.) Ignoring the

years of treatment and prior physical therapy that resulted in no appreciable improvement in

Respondent Metzler's grip strength, and Dr. Sohn's opinion that Respondent Metzler had

1^ reached maximum medical improvement in 2014, Dr. D'Amico speculated that Respondent

18 Metzler's diminished grip strength "is a rehabable situation." (Id. at 15, ̂ 1.) This lack of an

19 examination was the basis for Dr. D'Amico's speculation that Respondent Metzler could return

20 to work as a Correctional Officer.

21 On November 19, 2015, CalPERS notified Respondent Metzler that, based on Dr.

22 D'Amico's reporting, CalPERS had determined that Respondent Metzler was not disabled and

23 was to be reinstated to duty as a Con^ectional Officer. (Exhibit 4.)

24 On December 2, 2015, Respondent Metzler, through counsel, filed a Notice of Intent to

25 Appeal CalPERS' determination. (Exhibit 5.)

26 On 3/23/2016, Respondent Metzler attended a medical evaluation conducted by his

27 11 primary treating physician, Marshall Lewis, M.D., a board certified orthopedic surgeon

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(Exhibit A.) Dr. Lewis noted that Respondent Metzler's range of motion and grip strength were

markedly impaired. He reviewed the reports of Dr. Sohn and Dr. D'Amico and concluded:

If [Respondent Metzler] had to draw a weapon suddenly/rapidly, his handgrip is weak. He states he drops things all of the time. The fear would bethat he would drop his weapon, the weapon would be retrieved by aninmate and he or others would be killed. The patient also is unable towield a baton in an efficient manner. Again, he could lose the grip and thebaton could go flying, possibly to be in the possession of one of theinmates. At this point 1 am in total agreement with the patient's [agreedmedical evaluator]. Dr. Sohn, which is that he cannot perform his duties asa corrections officer; it would put him at risk, it would put him in danger,it would put his partners and coworkers in danger, it would even putinmates at risk. It is also noted that the patient would be unlikely to evenpass the qualifications process, let alone be able to perform his duties as acorrections officer.

On December 5, 2016, this matter proceeded to hearing before Administrative Law Judge

Heather Rowan.

On direct examination. Dr. D'Amico stated that he did not use his grip strength

examination as a basis for his medical conclusions. (Hearing Transcript 37:8-18.)

On cross examination. Dr. D'Amico was again questioned regarding his examination of

Respondent Metzler's grip strength. Contrary to the sworn statement in Dr, D*Amico's

report that he had "tried to do a Jamar," Dr. D^Amico admitted under oath that he did

not even bring out a Jamar Dynamometer during the examination, much less attempt to

objectively quantify Respondent Metzler's grip strength with that device. (Cf. Exhibit 13:

Report of Daniel M. D'Amico, M.D., dated October 12, 2015, p. 14, ̂ 2 with Hearing Transcript

48:6-16.) Dr. D'Amico admitted that, instead, he had instructed Respondent Metzler to squeeze

his fingers. {Ibid.) This finger-squeezing was not discussed in Dr. D'Amico's reports.

On cross examination, Dr. D'Amico was also questioned regarding his claim that

Respondent Metzler had not adequately flexed his forearm during the finger-squeezing. (See

Exhibit 13: Report of Daniel M. D'Amico, M.D., dated October 12, 2015, p. 14, T[ 2.) Dr.

D'Amico testified that he is familiar with the American Medical Association's guidelines for

conducting a grip strength test. (Hearing Transcript 49:7-15.) Dr. D'Amico admitted, however

that he did not employ either of the two methods accepted by the American Medical Association

to confirm his speculation. (Hearing Transcript 51:5 - 52:4.)

POINTS AND AUTHORITIES

"According to the Administrative Procedure Act (APA), the burden of proof flows from

the type of process initiated. If CalPERS moves to take away a person's right, e.g., involuntarily

discontinuing his/her disability retirement, the process is initiated by an Accusation, and

CalPERS has the burden of proving that the person is no longer disabled." {In re Starnes (1999)

Case No. 2530, OAH No. L-1999060537, p. 10 (designated Precedential Decision 1/22/2000).)

While it is true that Government Code 21192^ permits CalPERS to conduct a

reexamination of Respondent Metzler to determine whether he is still incapacitated for duty as a

Correctional Officer, the examination must constitute competent medical opinion.^

- Ail further references are to the Government Code unless otherwise stated. Section 21192 states, in

relevant part:

The board . . . may require any recipient of a disability retirement allowance under theminimum age for voluntary retirement for service applicable to members of his or herclass to undergo medical examination .... The examination shall be made by a physicianor surgeon, appointed by the board or the governing body of the employer, at the place ofresidence of the recipient or other place mutually agreed upon. Upon the basis of theexamination, the board or the governing body shall determine whether he or she is stillincapacitated, physically or mentally, for duty in the state agency, the university, orcontracting agency, where he or she was employed and in the position held by him or herwhen retired for disability, or in a position in the same classification, and for the duties ofthe position with regard to which he or she has applied for reinstatement from retirement.

Section 20026 provides, in relevant part:

"Disability" and "incapacity for performance of duty" as a basis for retirement, meansdisability of permanent or extended and uncertain duration, as determined by the board ... on the basis of competent medical opinion.

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In reviewing determinations in retirement proceedings, the Court of Appeal has statec

that, among other things, the finding of incapacity (or lack thereof) must be supported by

substantial evidence:

Retirement benefits and reinstatement rights are fundamental vestedrights. [Citations.] When an administrative decision substantially affectsfundamental vested rights, the trial court applies its independent judgmentto the evidence. [Citations.] "On appeal, we 'need only review the recordto determine whether the trial court's findings are supported by substantialevidence.' [Citations.]" {Cal Dept. of Justice v. Bd. of Admin, of CalPERS(2015) 242 Cal.App.4th 133, 138.)

In the present case, the reports of Dr. D'Amico are not substantial evidence

because they are based upon a fabricated examination that, in reality, was never done.

Because a CalPERS reinstatement examination should be limited solely to the

13 II condition giving rise to the industrial disability retirement,"^ the only pertinent portion of14 Dr. D'Amico's reports are those addressing Respondent Metzler's orthopedic (right

15 II wrist) condition.

16 II Dr. D'Amico admits in his report that he abandoned examination of Respondent

17 Metzler's wiist, likely because he was not aware he was examining Respondent for

18 reinstatement from an industrial disability retirement. (See Hearing Transcript 45:5-10.)

19 Dr- D'Amico even admitted that his medical conclusions were not based on his grip

20 strength testing. (Id. at 37:8-18.) He simply didn't realize that evaluation of grip strength

21 II was the entire point of the examination.

22 II Most outrageous, however, is Dr. D'Amico's admission on cross examination that

23 11 his statement, provided under penalty of periurv. that he "tried to do a Jamar" was a24 complete fabrication. (Cf. Exhibit 13: Report of Daniel M. D'Amico, M.D., dated

25 October 12, 2015, p. 14, ̂ 2, with Hearing Transcript 48:6-14.) Rather, Dr. D'Amico

26 admitted that he never attempted to perform a Jamar Dynamometer test; instead, he

SQQCal. Dept. of Justice v.Bd. of Admin, of CalPERS fl()\5)2A2CQ.\.kp^.A\hWi, \^\- "Theterm28 II '"^^P^citated' suggests the scope of the board's evaluation is limited to detemiining whether the

conditions for which disability retirement was granted continue to exist."

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testified that he attempted to have Respondent Metzler squeeze his fingers, but that he

abandoned this because he felt Respondent Metzler was not flexing his forearm

adequately. (See id.)

Dr. D'Amico's admission that he never actually conducted a Jamar Dynamometer

test belies a second fabrication in his sworn report, namely that "[i]t was noted the grip

was weaker on the right by a little less than 20 percent." (Exhibit 13: Report of Daniel M.

D'Amico, M.D., dated October 12, 2015, p. 14, 4, last line.) It would be impossible for

Dr. D'Amico to have found a 20% deficit in relative grip strength if he did not conduct a

Jamar Dynamometer test. If Respondent Metzler had actually failed to flex his forearm,

as Dr. D'Amico claimed in his report, there would be 0% grip strength to measure;

11 however, Dr. D'Amico inexplicably claims he found a deficit of 20%. Clearly, Dr.

11D'Amico's fabricated report is not credible and cannot constitute competent medical

opinion.

" Dr. D'Amico likely claimed in his report to have conducted a Jamar

11 Dynamometer test because it is the scientific, objective method generally accepted by the16 American Medical Association for evaluating grip strength. (See Exhibit C: AM A

1^ Guides to the Evaluation of Permanent Impairment, p. 508.) CalPERS granted

18 Respondent Metzler's industrial disability retirement on the basis of his diminished grip

19 strength, which Dr. Sohn determined by conducting the Jamar Dynamometer test.

20 (Exhibit B: Report of Roger S. Sohn, M.D., dated February 24, 2014, p. 7.) Because the

21 purpose of a reinstatement examination is to determine whether the disabling condition

22 still exists. Dr. D'Amico should have conducted an objective evaluation such as the one

23 conducted by Dr. Sohn. Dr. D'Amico failed to conduct any objective examination at all.

24 11 Because Dr. D'Amico admitted on cross examination that he did not conduct the

25 II grip strength test described in his report, the conclusions in his reports are not competent

26 medical opinion. Dr. D'Amico even admitted on cross examination that grip strength

27 was not considered when forming his medical conclusion. Accordingly, those

28 conclusions are not competent medical opinion on the issue of incapacity related to

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Respondent Metzler's orthopedic (right wrist) disability. Thus, the determination that

Respondent Metzler is no longer incapacitated is not substantial evidence upon which the

Administrative Board may base its decision.

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5 II CONCLUSION

Under the APA, the burden of proof rests upon CalPERS to show that Respondent

Metzler is no longer incapacitated on the basis of competent medical opinion. The reports of

Dr. D'Amico are not competent medical opinion because Dr. D'Amico lied about conducting a

grip strength test. Cross examination revealed that the doctor's report was pure fabrication.

Respondent Metzler respectfully requests a finding to that effect, as well as an order that the

I reinstatement determination be rescinded or otherwise annulled.

Dated: April 19,2017 Respectfully Submitted,

7 11 V Jmdrew B. Scott, Esq.ADAMS, FERRONE, & FERRONEAttorneys for RespondentAndre Metzler

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the

within action; my business address is 4333 Park Terrace Dr., Ste. 200, Westlake Village, CA 91361.

On April 19, 2017,1 served the foregoing document described as PETITION FOR RECONSIDERATION

on all interested parties in this action by facsimile and by placing the true copies thereof enclosed in sealed envelopes

addressed as stated on Attachment "A" hereto.

By mail 1 caused such envelope to be deposited in the mail at Westlake Village, California. The envelope was

mailed with postage thereon fully prepaid.

1 am "readily familiar" with this firm's practice of collection and processing correspondence for mailing. It is

deposited with the U.S. Postal Service on that same day in the ordinary course of business. 1 am aware that on motion ol

party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after the

date of deposit for mailing in affidavit.

EXECUTED on April 19,2017, at Westlake Village, California.

I DECLARE under penalty of peijury under the laws of the State of California that the above is true and

correct.

MATBO

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4 ATTACHMENT "A"

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Cheree Swedensky, Assistant to the Board7 Executive Ofifice

California Public Employees' Retirement System8 P.O. Box 942701

Sacramento, OA 94229-2701Fax:(916)795-3972

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Matthew G. Jacobs

General Counsel

California Public Employees' Retirement SystemP.O. Box 942701

13 Sacramento, CA 94229-2701Fax: (916)795-3659

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2^5 John Shipley, Esq.CalPERS

16 Lincoln Plaza North

400 Q Street, Ste 3340Sacramento, CA 94229-2707

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