for educational purposes only * not legal advice * cosipa’s superstitions seminar -- 1 10/4/12...

*For Educational Purposes Only **For Educational Purposes Only ** NOT LEGAL ADVICE ** NOT LEGAL ADVICE *

COSIPA’s COSIPA’s Superstitions Seminar -- Superstitions Seminar -- 1110/4/1210/4/12

““End of the Rainbow”End of the Rainbow”IDR Implications IDR Implications

Industrial Disability Retirement (IDR) & Crossover Industrial Disability Retirement (IDR) & Crossover Employment Law Issues for Public Safety OfficersEmployment Law Issues for Public Safety Officers

Dave Thomas, Partner; Riverside Office (951) 824-2984Dave Thomas, Partner; Riverside Office (951) 824-2984

Brenna Hampton, Managing Associate; San Diego Office (619) 528-2261Brenna Hampton, Managing Associate; San Diego Office (619) 528-2261

Jessie Zaylia, Associate; San Diego Office (619) 528-2261Jessie Zaylia, Associate; San Diego Office (619) 528-2261

HANNA BROPHY MacLEAN McALEER & JENSEN, HANNA BROPHY MacLEAN McALEER & JENSEN, LLPLLP

10/4/1210/4/12*For Educational Purposes Only **For Educational Purposes Only *

* NOT LEGAL ADVICE ** NOT LEGAL ADVICE *COSIPA’s COSIPA’s

Superstitions Seminar -- Superstitions Seminar -- 22

Public Retirement Public Retirement SystemsSystems

• Public Employees’ Retirement System (PERS) Public Employees’ Retirement System (PERS) GC 20000 et seq.GC 20000 et seq.

• State Teachers’ Retirement System State Teachers’ Retirement System EC 22000 et seq.EC 22000 et seq.

• County Employees’ Retirement Law of 1937County Employees’ Retirement Law of 1937 GC 31450 et seq. GC 31450 et seq.

• City Plans City Plans GC 45300 et seq.GC 45300 et seq.




How To WinHow To Win

• Overview of PERS IDROverview of PERS IDR• Overview of STRSOverview of STRS• Overview of 37 Act RetirementOverview of 37 Act Retirement• Early Coordination with WC CaseEarly Coordination with WC Case• Timely Coordination with HR & Sheriff’s Timely Coordination with HR & Sheriff’s

– “ “Interactive Process” (FEHA/ADA)Interactive Process” (FEHA/ADA)– Consistent Positions between DepartmentsConsistent Positions between Departments

• IDR Medical ExaminationIDR Medical Examination• Witness PreparationWitness Preparation• IDR DefensesIDR Defenses




CalPERS (PERS)CalPERS (PERS)Public Employees Retirement Public Employees Retirement

SystemSystem




PERS IDR: PERS IDR: BenefitsBenefits

• Benefits to Local Safety OfficersBenefits to Local Safety Officers– 50% of salary, tax free.50% of salary, tax free.– More than 50% if have the requisite More than 50% if have the requisite

years of service, but only the first 50% is years of service, but only the first 50% is tax free.tax free.

– 3% at 50 yrs; up to 90+% salary.3% at 50 yrs; up to 90+% salary.– Medical plan continues.Medical plan continues.– Can exceed $1,000,000 over lifetimeCan exceed $1,000,000 over lifetime




Benefits of Litigating IDRsBenefits of Litigating IDRs




PERS IDR: PERS IDR: Legal StandardLegal Standard

• ““IncapacitatedIncapacitated for the for the performance of duty as the performance of duty as the result of an result of an industrialindustrial disability” disability”




PERS IDR: PERS IDR: “Industrial”“Industrial”

• “ “DisabilityDisability or death as a result of or death as a result of injury or disease arising out of and in injury or disease arising out of and in the course of his or her employment”the course of his or her employment”

GC 20046GC 20046

• Causation of Causation of InjuryInjury vs. Causation of vs. Causation of DisabilityDisability




PERS IDR: PERS IDR: “Incapacity”“Incapacity”

• ““Disability of permanent or extended and Disability of permanent or extended and uncertain duration . . . On the basis of uncertain duration . . . On the basis of competent medical opinion”competent medical opinion”

GC 20026GC 20026

• ““Substantial Incapacity” – i.e., Substantial Incapacity” – i.e., Substantially unable to perform the usual Substantially unable to perform the usual duties of his/her position duties of his/her position

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




INDUSTRAL CAUSATION/ INDUSTRAL CAUSATION/ INCAPACITY MATRIXINCAPACITY MATRIX

Admit Admit

IncapacityIncapacityDisputeDispute

IncapacityIncapacity

Admit Admit

Industrial Industrial CausationCausation

IDRIDR Hearing Hearing

withwith

ALJALJ

DisputeDispute

Industrial Industrial CausationCausation

Hearing at Hearing at WCAB WCAB (Gov. Code (Gov. Code

21166)21166)

(causation (causation only)only)

HearingHearing

(1)(1)WCAB WCAB

(2)(2)ALJALJ




PERS IDR: PERS IDR: ApplicationApplication

• Who should file the application? Who should file the application? – ER’s must file IDR for eligible member ER’s must file IDR for eligible member

“believed to be disabled” “believed to be disabled” Govt. Code 21153Govt. Code 21153

• Why does it matter? Why does it matter? – Burden of proofBurden of proof

• Consequences for ER not filing Consequences for ER not filing – Writ of Mandate to Superior Court Writ of Mandate to Superior Court

Lazan v. County of RiversideLazan v. County of Riverside, , 140 Cal.App.4th 453 (2006)140 Cal.App.4th 453 (2006)




STRSSTRSState Teachers Retirement SystemState Teachers Retirement System




STRSSTRS

• STRS (State Teachers’ Retirement System)STRS (State Teachers’ Retirement System)• Created in 1913Created in 1913• Purpose: Provide retirement benefits to Purpose: Provide retirement benefits to

California’s public school educatorsCalifornia’s public school educators• Ed. Code section 22000 et seq. provides Ed. Code section 22000 et seq. provides

disability, rehabilitation, and retirementdisability, rehabilitation, and retirement– Disability benefits under STRS are Disability benefits under STRS are in lieuin lieu of of

workers’ compensation benefitsworkers’ compensation benefits




STRS Disability RetirementSTRS Disability Retirement

• Ed. Code sections 24100 - 24119 Ed. Code sections 24100 - 24119

• Calculation: aggregate of salary up to Calculation: aggregate of salary up to the equivalent of one single, full-time the equivalent of one single, full-time job carrying the highest job carrying the highest compensationcompensation

O'Connor v. STRS. (1996) 43 Cal.App.4th O'Connor v. STRS. (1996) 43 Cal.App.4th 16101610





• Eligibility: Eligibility: – Generally, a minimum of 5 years of serviceGenerally, a minimum of 5 years of service– Substantiated by medical evidence Substantiated by medical evidence – Physical or mental medical impairment that is Physical or mental medical impairment that is

permanent OR expected to last 12 or more continuous permanent OR expected to last 12 or more continuous months beyond the employee’s last day of workmonths beyond the employee’s last day of work

– Impairment must prevent either U&C or duties of a Impairment must prevent either U&C or duties of a comparable-level positioncomparable-level position

– Filing deadlinesFiling deadlines

• Two coverage options (A & B)Two coverage options (A & B)





• Coverage ACoverage A– Under age 60; min. 5 years of service creditUnder age 60; min. 5 years of service credit– Benefit: 50% of final compensation (unless over age 45 Benefit: 50% of final compensation (unless over age 45

w/ less than 10 yrs of service—5% of final compensation w/ less than 10 yrs of service—5% of final compensation for ea. year of service credit)for ea. year of service credit)

• Workers’ Compensation reduction: STRS benefits Workers’ Compensation reduction: STRS benefits are reduced dollar-for-dollar for benefits paid are reduced dollar-for-dollar for benefits paid under the workers’ compensation system for the under the workers’ compensation system for the same impairmentsame impairment





• Coverage BCoverage B– No eligibility age threshold, but generally min. No eligibility age threshold, but generally min.

5 years5 years– Benefit: 50% of final compensationBenefit: 50% of final compensation

• Workers’ Compensation reduction: STRS Workers’ Compensation reduction: STRS benefits are reduced dollar-for-dollar for benefits are reduced dollar-for-dollar for benefits paid under the workers’ benefits paid under the workers’ compensation system for the same compensation system for the same impairmentimpairment





• Permanent disability under the Permanent disability under the workers’ compensation scheme does workers’ compensation scheme does NOT equate to disability for STRS NOT equate to disability for STRS disability retirementdisability retirement– WC: PD refers to a certain amount of WC: PD refers to a certain amount of

permanent permanent impairmentimpairment or injury or injury– STRS: Disability refers to whether a STRS: Disability refers to whether a

teacher is teacher is competentcompetent and and capablecapable of of performing the jobperforming the job




STRS Disability STRS Disability ReinstatementReinstatement

• Must request reinstatement within 39 Must request reinstatement within 39 months from the start of disability, months from the start of disability, NOT the “approval of” disability or NOT the “approval of” disability or commencement of disability benefitscommencement of disability benefits

Franzosi v. Santa Monica Community College Franzosi v. Santa Monica Community College Dist. (2004) 118 Cal.App.4th 442 Dist. (2004) 118 Cal.App.4th 442




STRS Disability STRS Disability ReinstatementReinstatement• Raven v. Oakland Unified Sch. Dist. (1989) 213 Raven v. Oakland Unified Sch. Dist. (1989) 213

Cal.App.3d 1347Cal.App.3d 1347 • Tenured teacher on sick leave for work-related Tenured teacher on sick leave for work-related

mental illness is entitled to reinstatement mental illness is entitled to reinstatement – Must show medical evidence of recovery sufficient to Must show medical evidence of recovery sufficient to

resume teaching resume teaching • To refuse reinstatement, employer must prove To refuse reinstatement, employer must prove

mental incompetence to resume teaching duties, mental incompetence to resume teaching duties, and must comply with the procedural provisions and must comply with the procedural provisions of of Education Code section 44942Education Code section 44942 (mental (mental competency hearing/due process)competency hearing/due process)




Raven v. Oakland USD Raven v. Oakland USD (1989)(1989)

• Ed. Code 44942 applies to Ed. Code 44942 applies to suspensions and transfers re: mental suspensions and transfers re: mental disabilitiesdisabilities

• BUT the BUT the RavenRaven case equates refusal case equates refusal to reinstate with suspensionto reinstate with suspension– Triggers Ed. Code section 44942 hearing Triggers Ed. Code section 44942 hearing

procedureprocedure




Raven v. Oakland USD Raven v. Oakland USD (1989)(1989)

• If STRS denies disability retirement based upon If STRS denies disability retirement based upon the teacher’s ability to work, this satisfies the the teacher’s ability to work, this satisfies the employee’s burden of competencyemployee’s burden of competency– At this point, the burden shiftsAt this point, the burden shifts

• A school district cannot circumvent its burden of A school district cannot circumvent its burden of proving mental proving mental inincompetency by relying on its competency by relying on its collective bargaining agreementcollective bargaining agreement– It must either reinstate or hold a hearingIt must either reinstate or hold a hearing




Lesson re: ReinstatementLesson re: Reinstatement

• Re: mental disabilities, the choices Re: mental disabilities, the choices are:are:– Reinstate, orReinstate, or– Hold a competency hearing, orHold a competency hearing, or– Provide STRS disability retirement Provide STRS disability retirement

benefits, unless the disability was not benefits, unless the disability was not caused by work (in which case STRS caused by work (in which case STRS retirement [not retirement [not disabilitydisability retirement] may retirement] may apply)apply)




BackpayBackpay

• Reinstatement requires Reinstatement requires full backpayfull backpay from from the time of “unlawful discharge.”the time of “unlawful discharge.”– Ex: Denial of reinstatement without a hearingEx: Denial of reinstatement without a hearing

RavenRaven (1989) (1989)

• Backpay can be offset by permanent Backpay can be offset by permanent disability benefits under workers’ disability benefits under workers’ compensationcompensation– Policy: Prevent double recoveryPolicy: Prevent double recovery




CERL / 1937 ActCERL / 1937 Act

• County Employees Retirement Law of County Employees Retirement Law of 19371937

• Purpose: Provide retirement benefits Purpose: Provide retirement benefits to employees of member Countiesto employees of member Counties

• Government Code: Title 3, Division 4, Government Code: Title 3, Division 4, Part 3, Chapter 3 and 3.9 Sections Part 3, Chapter 3 and 3.9 Sections 31450-31899.1031450-31899.10




CERL / 1937 Act: CERL / 1937 Act: Counties Classified Counties Classified

• The counties of the State of The counties of the State of California are classified according to California are classified according to their populationtheir population

•G.C. Section 28020G.C. Section 28020




Counties in Order Counties in Order Size / ClassSize / Class

• Los AngelesLos Angeles• OrangeOrange• San DiegoSan Diego• AlamedaAlameda• San BernardinoSan Bernardino• SacramentoSacramento• Contra CostaContra Costa• San MateoSan Mateo• FresnoFresno• VenturaVentura

• KernKern• San JoaqinSan Joaqin• Santa BarbaraSanta Barbara• MarinMarin• SonomaSonoma• StanisluasStanisluas• TulareTulare• MercedMerced• Imperial Imperial • MendocinoMendocino




““Permanent Incapacity”Permanent Incapacity” CERL / 1937 Act CERL / 1937 Act

• Any member permanently incapacitated from the Any member permanently incapacitated from the performance of duty performance of duty shallshall be retired for disability be retired for disability regardless of age regardless of age if, and only ifif, and only if::

(a) Incapacity is a result of injury or disease arising (a) Incapacity is a result of injury or disease arising out of and in the course of the member’s out of and in the course of the member’s employment, and such employment contributes employment, and such employment contributes substantially to such incapacity, OR substantially to such incapacity, OR

(b) Five years of service, AND (b) Five years of service, AND (c) The member has not waived retirement in (c) The member has not waived retirement in

respect to the particular incapacity or respect to the particular incapacity or aggravation thereof.aggravation thereof.

- G.C. 31720- G.C. 31720




Competent Medical Competent Medical Evidence RequiredEvidence Required

• In determining eligibility for disability In determining eligibility for disability retirement, the board shall not retirement, the board shall not consider medical opinion unless it is consider medical opinion unless it is deemed competent.deemed competent.

- G.C. 31720.3- G.C. 31720.3




Standard May Vary Standard May Vary Between CountiesBetween Counties

Example: Contra Costa County Example: Contra Costa County requires: requires:

• 10 years of service10 years of service

• Defines “Permanently incapacitated,” Defines “Permanently incapacitated,” to require that the member is unable to require that the member is unable permanently to engage in any permanently to engage in any substantial gainful employment.substantial gainful employment.

- G.C. 31720.1- G.C. 31720.1




Conflict of LawsConflict of Laws

When a charter conflicts with the When a charter conflicts with the general law on a matter of local general law on a matter of local concern, the charter prevails.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




Board’s Independent Board’s Independent ReviewReview

• The Board of Retirement is The Board of Retirement is notnot bound bound by a decision of the W.C.A.B. finding by a decision of the W.C.A.B. finding the employee's condition to be the employee's condition to be industrial. industrial.

•Kimbrough v. Oakland Police & Fire Retirement Kimbrough v. Oakland Police & Fire Retirement SystemSystem (1984) 161 C.A.3d 1143, 208 C.R. 112 (1984) 161 C.A.3d 1143, 208 C.R. 112

• Contrast this to PERS IDRs where the Contrast this to PERS IDRs where the issue of causation must be submitted to issue of causation must be submitted to the WCAB. -the WCAB. -G.C. 21016 et seq.G.C. 21016 et seq.




Calculating Benefits Calculating Benefits CERL / 1937 ActCERL / 1937 Act

• As of the date on which the As of the date on which the retirement allowance commences.retirement allowance commences.

•G.C. 31705G.C. 31705

• EE may elect to defer CERL EE may elect to defer CERL retirement allowance if move to retirement allowance if move to another County / retirement systemanother County / retirement system

•GC 31700 GC 31700 et seq.et seq.




Advanced Disability Advanced Disability CERL / ’37 ActCERL / ’37 Act

30 days from the date of issuance of the 30 days from the date of issuance of the last disbursed of the following:last disbursed of the following:

• (1) The employee's last regular payment of (1) The employee's last regular payment of wages or salary.wages or salary.

• (2) The employee's last payment of benefits (2) The employee's last payment of benefits under Section 4850.under Section 4850.

• (3) The employee's last payment for sick leave.(3) The employee's last payment for sick leave.





If the EE does If the EE does allall of the following, ER shall make of the following, ER shall make advanced disability payments: advanced disability payments:

• (1) Files an application for disability retirement (1) Files an application for disability retirement at least 60 days prior to the payment of at least 60 days prior to the payment of benefits pursuant to subdivision (a).benefits pursuant to subdivision (a).

• (2) Fully cooperates in providing the employer (2) Fully cooperates in providing the employer with medical information and in attending all with medical information and in attending all statutorily required medical examinations and statutorily required medical examinations and evaluations set by the employer.evaluations set by the employer.

• (3) Fully cooperates with the evaluation (3) Fully cooperates with the evaluation process established by the retirement plan.process established by the retirement plan.





**ER’s obligation to commence **ER’s obligation to commence Advanced payments within 30-days Advanced payments within 30-days shall be tolled by EE's failure to shall be tolled by EE's failure to comply with these requirements.comply with these requirements.





Advanced Payments Advanced Payments shall continueshall continue until until

the claimant is approved or the claimant is approved or disapproved for disapproved for

a disability allowance pursuant to final a disability allowance pursuant to final

adjudication as provided by law.adjudication as provided by law.– Ie: All appeals exhaustedIe: All appeals exhausted




Temporary Disability Temporary Disability CERL / 1937 Act CERL / 1937 Act

• Benefits in lieu of temporary disability when Benefits in lieu of temporary disability when Safety member is off work due to an Safety member is off work due to an industrial injury. (LC 4850)industrial injury. (LC 4850)

• If the industrial injury is the reason for the If the industrial injury is the reason for the retirement, temporary disability indemnity is retirement, temporary disability indemnity is payable after retirement (unless CalPERS)payable after retirement (unless CalPERS)

- USC v WCAB (Miller), 48 Cal. Comp. Cases 477 (1983)- USC v WCAB (Miller), 48 Cal. Comp. Cases 477 (1983)

- - Moore v Cty. of Orange, 2010 Cal.Wrk.Comp. P.D.LEXIS Moore v Cty. of Orange, 2010 Cal.Wrk.Comp. P.D.LEXIS 370370




TAKE ‘EM BACKTAKE ‘EM BACKOR RETIRE ‘EMOR RETIRE ‘EM




Take ‘Em BackTake ‘Em BackOr Retire ‘EmOr Retire ‘Em

• Employee “cannot, at the same time, be Employee “cannot, at the same time, be denied a disability retirement and also denied denied a disability retirement and also denied employment.”employment.”

Montoya v. Retirement Board, City and County of San Francisco, Montoya v. Retirement Board, City and County of San Francisco, San Francisco Superior Court No. 321839 (2005)San Francisco Superior Court No. 321839 (2005)

Roccaforte v. City of San Diego,Roccaforte v. City of San Diego,89 Cal. App.3d 877 (1979)89 Cal. App.3d 877 (1979)

• Employee must be given “IDR or placed into Employee must be given “IDR or placed into a full-time, full-pay, limited duty” position.a full-time, full-pay, limited duty” position.

Raygoza v. County of Los AngelesRaygoza v. County of Los Angeles (1993) 17 Cal. App.4 (1993) 17 Cal. App.4thth 1240,1246 1240,1246




Take ‘Em BackTake ‘Em BackOr Retire ‘EmOr Retire ‘Em

• Lazan v. County of Riverside Lazan v. County of Riverside (2006)(2006)– Work Comp division advised Lazan that it had no Work Comp division advised Lazan that it had no

available work for her (i.e., NOPE letter)available work for her (i.e., NOPE letter)– Sheriff's Department refused to allow Lazan to return Sheriff's Department refused to allow Lazan to return

to workto work– Human Resources Department failed to use the Human Resources Department failed to use the

interactive processinteractive process– Disability Retirement Division, denied that Lazan was Disability Retirement Division, denied that Lazan was

disabled (i.e. denied IDR)disabled (i.e. denied IDR)

• Writ of Mandate to Superior CourtWrit of Mandate to Superior Court




COORDINATION OF COORDINATION OF WORK COMP & HRWORK COMP & HR




Coordination of Coordination of Work Comp & HRWork Comp & HR

• WC cases must be defendedWC cases must be defended

• Integrated approach increases likelihood Integrated approach increases likelihood of victoryof victory

• Counsel with Expertise in IDR lawsCounsel with Expertise in IDR laws

• Resistance of IDR has positive deterrent Resistance of IDR has positive deterrent effect on future filingseffect on future filings

• $$$ savings with joint settlements$$$ savings with joint settlements




Coordination of Coordination of Work Comp & HRWork Comp & HR

• Fight Industrial Causation?Fight Industrial Causation?• Multiple Prior ClaimsMultiple Prior Claims

– “ “Medical-only”; PD stipulations; prior Medical-only”; PD stipulations; prior surgeriessurgeries

• No AMEs (or limit scope of exam)No AMEs (or limit scope of exam)• Safety OfficerSafety Officer

– Nearing retirementNearing retirement– Expectation/Culture for PERS IDR?Expectation/Culture for PERS IDR?




COORDINATION OF HR & COORDINATION OF HR & SHERIFF’S DEPARTMENTSSHERIFF’S DEPARTMENTS




Coordination of HR & Coordination of HR & Sheriff’s DepartmentsSheriff’s Departments

• TTD / change of status reportsTTD / change of status reports– Work restrictionsWork restrictions– Temporary light duty positionsTemporary light duty positions

• QIW / RTW determinationsQIW / RTW determinations– Different legal standard between WC & IDRDifferent legal standard between WC & IDR

• “ “Interactive Process” (ADA/FEHA)Interactive Process” (ADA/FEHA)

• Reduce time lag between P&S status and Reduce time lag between P&S status and IDRIDR





• RTW PolicyRTW Policy– Permanent “Light duty”Permanent “Light duty”– Job Accommodation (ADA/FEHA)Job Accommodation (ADA/FEHA)

• Consistent positions between departmentsConsistent positions between departments

• Essential Job DutiesEssential Job Duties– Hiring v. retention criteriaHiring v. retention criteria– Cadet, deputy, sergeant, lieutenant, etc.Cadet, deputy, sergeant, lieutenant, etc.





• Job duties of a Deputy SheriffJob 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 recertificationPOST-Training; annual recertification

• Usual duties v. occasional dutiesUsual duties v. occasional duties

• Injuries pose danger to deputy, fellow officers and Injuries pose danger to deputy, fellow officers and the publicthe public

• Duties will inevitably worsen injuryDuties will inevitably worsen injury





Thelander v. City of El Monte (1983)Thelander v. City of El Monte (1983)

• Part-time reserve officer required her to attend the police Part-time reserve officer required her to attend the police academyacademy

• Before academy, she had been diagnosed with Before academy, she had been diagnosed with asymptomatic scoliosis, which prevented her from asymptomatic scoliosis, which prevented her from completing the academycompleting the academy

• Deputies must subdue violent suspects, engage in chases Deputies must subdue violent suspects, engage in chases that involve running, jumping and crawling; break up fights; that involve running, jumping and crawling; break up fights; drag or carry victim out of dangerdrag 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 “Court found the strenuous activities to be “usual dutiesusual duties””

147 Cal.App.3d 736 (1983)147 Cal.App.3d 736 (1983)




PERS IDR:PERS IDR:Medical ExamMedical Exam

• Separate PERS medical exam & reportSeparate PERS medical exam & report

• “ “Substantial Incapacity” vs. prophylactic work Substantial Incapacity” vs. prophylactic work restrictionsrestrictions

• Educate doctor on the PERS law and defensesEducate doctor on the PERS law and defenses

• Credentials of doctorCredentials of doctor– Education, research, peer-reviewed & published Education, research, peer-reviewed & published

articles, etc.articles, etc.




Witness Witness PreparationPreparation

• Expert Medical TestimonyExpert Medical Testimony– Live witnessLive witness– Prophylactic vs. actual work restrictionsProphylactic vs. actual work restrictions– Detailed understanding of job dutiesDetailed understanding of job duties

• Sheriff’s DepartmentSheriff’s Department– Essential job functionsEssential job functions– Light duty positionsLight duty positions




IDR DEFENSESIDR DEFENSES




IDR IDR DefensesDefenses

Mansperger v. PERS (1970) Mansperger v. PERS (1970) • “ “Incapacitated” means the applicant for a disability Incapacitated” means the applicant for a disability

retirement has a substantial inability to perform his or retirement has a substantial inability to perform his or her “usual” duties.her “usual” duties.

Cal.App.3d 873 (1970)Cal.App.3d 873 (1970)

Harmon v. Board of Retirement (1976)Harmon v. Board of Retirement (1976)• When an applicant can perform his customary duties, When an applicant can perform his customary duties,

even though doing so may sometimes be difficult or even though doing so may sometimes be difficult or painful, the applicant does not qualify for a disability painful, the applicant does not qualify for a disability retirement.retirement.

62 Cal. App. 3d 689 (1976)62 Cal. App. 3d 689 (1976)





Hosford v. Bd. Of Admin. (1978)Hosford v. Bd. Of Admin. (1978)

• Employee can be unable to perform Employee can be unable to perform somesome of of his/her duties without being substantially his/her duties without being substantially incapacitatedincapacitated

• Fear of sustaining further injury (or Fear of sustaining further injury (or aggravation) does aggravation) does notnot substantially substantially incapacitate an employeeincapacitate an employee

• Disability must be existing, and not Disability must be existing, and not prospective in natureprospective in nature

• Light duty position not necessary when Light duty position not necessary when partially disabled public employee can perform partially disabled public employee can perform the usual duties, even when difficult or painful.the usual duties, even when difficult or painful.

77 Cal.App.3d 854 (1978)77 Cal.App.3d 854 (1978)





Craver v. City of LACraver v. City of LA (1974) (1974)

• Police Officer Police Officer notnot entitled to IDR since entitled to IDR since employer gave him permanent employer gave him permanent modified/limited assignmentmodified/limited assignment

• Despite inability to perform all police dutiesDespite inability to perform all police duties

• “ “Permanent Modified Light-Duty”Permanent Modified Light-Duty”

42 Cal.App.3d 76 (1974) 42 Cal.App.3d 76 (1974)





Winslow v. City of Pasadena (1983)Winslow v. City of Pasadena (1983)

• Retired motorcycle officer could be Retired motorcycle officer could be reinstated where Department created light-reinstated where Department created light-duty positions after his retirementduty positions after his retirement

• Provided that Department supplied light-Provided that Department supplied light-duty positions in the pastduty positions in the past

• New position must be real jobNew position must be real job





Stuessel v. City of Glendale (1983) Stuessel v. City of Glendale (1983)

• Permanent Modified Light DutyPermanent Modified Light Duty– Not carry firearm or make arrestsNot carry firearm or make arrests– No vested right to the above where No vested right to the above where

there’s a proper medical reason there’s a proper medical reason involving safetyinvolving safety

• Retained Police Officer ClassificationRetained Police Officer Classification

• Same salary and benefitsSame salary and benefits

• Same Same promotional opportunitiespromotional opportunities

141 Cal.App.3d 1047 (1983)141 Cal.App.3d 1047 (1983)





Reynolds v. City of San Carlos (1981) Reynolds v. City of San Carlos (1981)

• Firefighter’s ability to return to work likely Firefighter’s ability to return to work likely would have been restored with surgerywould have been restored with surgery

• Unreasonable refusal to submit to corrective Unreasonable refusal to submit to corrective surgerysurgery

• IDR deniedIDR denied 126 Cal.App.3d 208 (1981)126 Cal.App.3d 208 (1981)





Haywood v. Amer. River Fire (1998) Haywood v. Amer. River Fire (1998)

• Firefighter terminated for cause following Firefighter terminated for cause following disciplinary actionsdisciplinary actions

• No valid claim before terminationNo valid claim before termination

• Can’t claim IDR after separation from Can’t claim IDR after separation from employmentemployment

• Termination for cause severed Termination for cause severed employer/employee relationshipemployer/employee relationship

67 Cal.App.4th 1292 (1998) 67 Cal.App.4th 1292 (1998)





Smith v. City of Napa (2004) Smith v. City of Napa (2004)

• Employee terminated for reasons:Employee terminated for reasons:– Not resulting from disabling medical conditionNot resulting from disabling medical condition– Not for purpose of preventing retirementNot for purpose of preventing retirement

• On date disability claim was denied, officer On date disability claim was denied, officer was no longer an employeewas no longer an employee

• Cites Cites Haywood Haywood with approvalwith approval

120 Cal.App.4th 194 (2004)120 Cal.App.4th 194 (2004)

*For Educational Purposes Only **For Educational Purposes Only ** NOT LEGAL ADVICE ** NOT LEGAL ADVICE *

COSIPA’s COSIPA’s Superstitions Seminar -- Superstitions Seminar -- 626210/4/1210/4/12

* END ** END *

““End of the Rainbow”End of the Rainbow”IDR Implications IDR Implications

Industrial Disability Retirement (IDR) & Crossover Industrial Disability Retirement (IDR) & Crossover Employment Law Issues for Public Safety OfficersEmployment Law Issues for Public Safety Officers

Dave Thomas, Partner; Riverside Office (951) 824-2984Dave Thomas, Partner; Riverside Office (951) 824-2984Brenna Hampton, Managing Attorney; San Diego Office (619) 528-2261Brenna Hampton, Managing Attorney; San Diego Office (619) 528-2261

Jessie Zaylia, Associate; San Diego Office (619) 528-2261Jessie Zaylia, Associate; San Diego Office (619) 528-2261

HANNA BROPHY MacLEAN McALEER & HANNA BROPHY MacLEAN McALEER & JENSEN, LLPJENSEN, LLP

for educational purposes only * not legal advice * cosipa’s superstitions seminar -- 1 10/4/12...

Documents

legal advice

cosipas superstitions

educational purposes

retirement benefits

retirement disability

causation of disability

industrial disability

act retirement overview

*for educational purposes only * * not legal advice * cosipa’s superstitions seminar -- 1 10/4/12...

for educational purposes only * not legal advice * cosipa’s superstitions seminar -- 1 10/4/12...