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

“End of the Rainbow” IDR Implications Industrial Disability Retirement (IDR) & Crossover Employment Law Issues for Public Safety Officers. Dave Thomas, Partner; Riverside Office (951) 824-2984 Brenna Hampton, Managing Associate; San Diego Office (619) 528-2261

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

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  1. “End of the Rainbow”IDR Implications Industrial Disability Retirement (IDR) & Crossover Employment Law Issues for Public Safety Officers Dave Thomas, Partner; Riverside Office (951) 824-2984 Brenna Hampton, Managing Associate; San Diego Office (619) 528-2261 Jessie Zaylia, Associate; San Diego Office (619) 528-2261HANNA BROPHY MacLEAN McALEER & JENSEN, LLP *For Educational Purposes Only ** NOT LEGAL ADVICE *

  2. Public Retirement Systems • Public Employees’ Retirement System (PERS) • GC 20000 et seq. • State Teachers’ Retirement System • EC 22000 et seq. • County Employees’ Retirement Law of 1937 • GC 31450 et seq. • City Plans • GC 45300 et seq. *For Educational Purposes Only ** NOT LEGAL ADVICE *

  3. How To Win • Overview of PERS IDR • Overview of STRS • Overview of 37 Act Retirement • Early Coordination with WC Case • Timely Coordination with HR & Sheriff’s • “Interactive Process” (FEHA/ADA) • Consistent Positions between Departments • IDR Medical Examination • Witness Preparation • IDR Defenses *For Educational Purposes Only ** NOT LEGAL ADVICE *

  4. CalPERS (PERS)Public Employees Retirement System *For Educational Purposes Only ** NOT LEGAL ADVICE *

  5. PERS IDR: Benefits • Benefits to Local Safety Officers • 50% of salary, tax free. • More than 50% if have the requisite years of service, but only the first 50% is tax free. • 3% at 50 yrs; up to 90+% salary. • Medical plan continues. • Can exceed $1,000,000 over lifetime *For Educational Purposes Only ** NOT LEGAL ADVICE *

  6. Benefits of Litigating IDRs *For Educational Purposes Only ** NOT LEGAL ADVICE *

  7. Benefits of Litigating IDRs *For Educational Purposes Only ** NOT LEGAL ADVICE *

  8. PERS IDR: Legal Standard • “Incapacitated for the performance of duty as the result of an industrial disability” *For Educational Purposes Only ** NOT LEGAL ADVICE *

  9. PERS IDR: “Industrial” • “Disability or death as a result of injury or disease arising out of and in the course of his or her employment” • GC 20046 • Causation of Injury vs. Causation of Disability *For Educational Purposes Only ** NOT LEGAL ADVICE *

  10. PERS IDR: “Incapacity” • “Disability of permanent or extended and uncertain duration . . . On the basis of competent medical opinion” • GC 20026 • “Substantial Incapacity” – i.e., Substantially unable to perform the usual duties of his/her position • Mansperger v. PERS, Cal.App.3d 873 (1970) *For Educational Purposes Only ** NOT LEGAL ADVICE *

  11. INDUSTRAL CAUSATION/ INCAPACITY MATRIX *For Educational Purposes Only ** NOT LEGAL ADVICE *

  12. PERS IDR: Application • Who should file the application? • ER’s must file IDR for eligible member “believed to be disabled” • Govt. Code 21153 • Why does it matter? • Burden of proof • Consequences for ER not filing • Writ of Mandate to Superior Court • Lazan v. County of Riverside, 140 Cal.App.4th 453 (2006) *For Educational Purposes Only ** NOT LEGAL ADVICE *

  13. STRSState Teachers Retirement System *For Educational Purposes Only ** NOT LEGAL ADVICE *

  14. STRS • STRS (State Teachers’ Retirement System) • Created in 1913 • Purpose: Provide retirement benefits to California’s public school educators • Ed. Code section 22000 et seq. provides disability, rehabilitation, and retirement • Disability benefits under STRS are in lieu of workers’ compensation benefits *For Educational Purposes Only ** NOT LEGAL ADVICE *

  15. STRS Disability Retirement • Ed. Code sections 24100 - 24119 • Calculation: aggregate of salary up to the equivalent of one single, full-time job carrying the highest compensation • O'Connor v. STRS. (1996) 43 Cal.App.4th 1610 *For Educational Purposes Only ** NOT LEGAL ADVICE *

  16. STRS Disability Retirement • Eligibility: • Generally, a minimum of 5 years of service • Substantiated by medical evidence • Physical or mental medical impairment that is permanent OR expected to last 12 or more continuous months beyond the employee’s last day of work • Impairment must prevent either U&C or duties of a comparable-level position • Filing deadlines • Two coverage options (A & B) *For Educational Purposes Only ** NOT LEGAL ADVICE *

  17. STRS Disability Retirement • Coverage A • Under age 60; min. 5 years of service credit • Benefit: 50% of final compensation (unless over age 45 w/ less than 10 yrs of service—5% of final compensation for ea. year of service credit) • Workers’ Compensation reduction: STRS benefits are reduced dollar-for-dollar for benefits paid under the workers’ compensation system for the same impairment *For Educational Purposes Only ** NOT LEGAL ADVICE *

  18. STRS Disability Retirement • Coverage B • No eligibility age threshold, but generally min. 5 years • Benefit: 50% of final compensation • Workers’ Compensation reduction: STRS benefits are reduced dollar-for-dollar for benefits paid under the workers’ compensation system for the same impairment *For Educational Purposes Only ** NOT LEGAL ADVICE *

  19. STRS Disability Retirement • Permanent disability under the workers’ compensation scheme does NOT equate to disability for STRS disability retirement • WC: PD refers to a certain amount of permanent impairment or injury • STRS: Disability refers to whether a teacher is competent and capable of performing the job *For Educational Purposes Only ** NOT LEGAL ADVICE *

  20. STRS Disability Reinstatement • Must request reinstatement within 39 months from the start of disability, NOT the “approval of” disability or commencement of disability benefits • Franzosi v. Santa Monica Community College Dist. (2004) 118 Cal.App.4th 442  *For Educational Purposes Only ** NOT LEGAL ADVICE *

  21. STRS Disability Reinstatement • Raven v. Oakland Unified Sch. Dist. (1989) 213 Cal.App.3d 1347 • Tenured teacher on sick leave for work-related mental illness is entitled to reinstatement • Must show medical evidence of recovery sufficient to resume teaching • To refuse reinstatement, employer must prove mental incompetence to resume teaching duties, and must comply with the procedural provisions of Education Code section 44942 (mental competency hearing/due process) *For Educational Purposes Only ** NOT LEGAL ADVICE *

  22. Raven v. Oakland USD (1989) • Ed. Code 44942 applies to suspensions and transfers re: mental disabilities • BUT the Raven case equates refusal to reinstate with suspension • Triggers Ed. Code section 44942 hearing procedure *For Educational Purposes Only ** NOT LEGAL ADVICE *

  23. Raven v. Oakland USD (1989) • If STRS denies disability retirement based upon the teacher’s ability to work, this satisfies the employee’s burden of competency • At this point, the burden shifts • A school district cannot circumvent its burden of proving mental incompetency by relying on its collective bargaining agreement • It must either reinstate or hold a hearing *For Educational Purposes Only ** NOT LEGAL ADVICE *

  24. Lesson re: Reinstatement • Re: mental disabilities, the choices are: • Reinstate, or • Hold a competency hearing, or • Provide STRS disability retirement benefits, unless the disability was not caused by work (in which case STRS retirement [not disability retirement] may apply) *For Educational Purposes Only ** NOT LEGAL ADVICE *

  25. Backpay • Reinstatement requires full backpay from the time of “unlawful discharge.” • Ex: Denial of reinstatement without a hearing • Raven (1989) • Backpay can be offset by permanent disability benefits under workers’ compensation • Policy: Prevent double recovery *For Educational Purposes Only ** NOT LEGAL ADVICE *

  26. CERL / 1937 Act • County Employees Retirement Law of 1937 • Purpose: Provide retirement benefits to employees of member Counties • Government Code: Title 3, Division 4, Part 3, Chapter 3 and 3.9 Sections 31450-31899.10 *For Educational Purposes Only ** NOT LEGAL ADVICE *

  27. CERL / 1937 Act: Counties Classified • The counties of the State of California are classified according to their population • G.C. Section 28020 *For Educational Purposes Only ** NOT LEGAL ADVICE *

  28. Counties in Order Size / Class • Los Angeles • Orange • San Diego • Alameda • San Bernardino • Sacramento • Contra Costa • San Mateo • Fresno • Ventura • Kern • San Joaqin • Santa Barbara • Marin • Sonoma • Stanisluas • Tulare • Merced • Imperial • Mendocino *For Educational Purposes Only ** NOT LEGAL ADVICE *

  29. “Permanent Incapacity” CERL / 1937 Act • Any member permanently incapacitated from the performance of duty shall be retired for disability regardless of age if, and only if: (a) 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, OR (b) Five years of service, AND (c) The member has not waived retirement in respect to the particular incapacity or aggravation thereof. - G.C. 31720 *For Educational Purposes Only ** NOT LEGAL ADVICE *

  30. Competent Medical Evidence Required • In determining eligibility for disability retirement, the board shall not consider medical opinion unless it is deemed competent. - G.C. 31720.3 *For Educational Purposes Only ** NOT LEGAL ADVICE *

  31. Standard May Vary Between Counties Example: Contra Costa County requires: • 10 years of service • Defines “Permanently incapacitated,” to require that the member is unable permanently to engage in any substantial gainful employment. - G.C. 31720.1 *For Educational Purposes Only ** NOT LEGAL ADVICE *

  32. Conflict of Laws When a charter conflicts with the general law on a matter of local 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 *For Educational Purposes Only ** NOT LEGAL ADVICE *

  33. Board’s Independent Review • The Board of Retirement is not bound by a decision of the W.C.A.B. finding the employee's condition to be industrial. • Kimbrough v. Oakland Police & Fire Retirement System (1984) 161 C.A.3d 1143, 208 C.R. 112 • Contrast this to PERS IDRs where the issue of causation must be submitted to the WCAB. -G.C. 21016 et seq. *For Educational Purposes Only ** NOT LEGAL ADVICE *

  34. Calculating Benefits CERL / 1937 Act • As of the date on which the retirement allowance commences. • G.C. 31705 • EE may elect to defer CERL retirement allowance if move to another County / retirement system • GC 31700 et seq. *For Educational Purposes Only ** NOT LEGAL ADVICE *

  35. Advanced Disability CERL / ’37 Act 30 days from the date of issuance of the last disbursed of the following: • (1) The employee's last regular payment of wages or salary. • (2) The employee's last payment of benefits under Section 4850. • (3) The employee's last payment for sick leave. *For Educational Purposes Only ** NOT LEGAL ADVICE *

  36. Advanced Disability CERL / ’37 Act If the EE does all of the following, ER shall make advanced disability payments: • (1) Files an application for disability retirement at least 60 days prior to the payment of benefits pursuant to subdivision (a). • (2) Fully cooperates in providing the employer with medical information and in attending all statutorily required medical examinations and evaluations set by the employer. • (3) Fully cooperates with the evaluation process established by the retirement plan. *For Educational Purposes Only ** NOT LEGAL ADVICE *

  37. Advanced Disability CERL / ’37 Act **ER’s obligation to commence Advanced payments within 30-days shall be tolled by EE's failure to comply with these requirements. *For Educational Purposes Only ** NOT LEGAL ADVICE *

  38. Advanced Disability CERL / ’37 Act Advanced Payments shall continue until the claimant is approved or disapproved for a disability allowance pursuant to final adjudication as provided by law. • Ie: All appeals exhausted *For Educational Purposes Only ** NOT LEGAL ADVICE *

  39. Temporary Disability CERL / 1937 Act • Benefits in lieu of temporary disability when Safety member is off work due to an industrial injury. (LC 4850) • If the industrial injury is the reason for the retirement, temporary disability indemnity is payable after retirement (unless CalPERS) - USC v WCAB (Miller), 48 Cal. Comp. Cases 477 (1983) - Moore v Cty. of Orange, 2010 Cal.Wrk.Comp. P.D.LEXIS 370 *For Educational Purposes Only ** NOT LEGAL ADVICE *

  40. TAKE ‘EM BACKOR RETIRE ‘EM *For Educational Purposes Only ** NOT LEGAL ADVICE *

  41. Take ‘Em BackOr Retire ‘Em • Employee “cannot, at the same time, be denied a disability retirement and also denied employment.” • Montoya v. Retirement Board, City and County of San Francisco, San Francisco Superior Court No. 321839 (2005) • Roccaforte v. City of San Diego,89 Cal. App.3d 877 (1979) • Employee must be given “IDR or placed into a full-time, full-pay, limited duty” position. • Raygoza v. County of Los Angeles (1993) 17 Cal. App.4th 1240,1246 *For Educational Purposes Only ** NOT LEGAL ADVICE *

  42. Take ‘Em BackOr Retire ‘Em • Lazan v. County of Riverside (2006) • Work Comp division advised Lazan that it had no available work for her (i.e., NOPE letter) • Sheriff's Department refused to allow Lazan to return to work • Human Resources Department failed to use the interactive process • Disability Retirement Division, denied that Lazan was disabled (i.e. denied IDR) • Writ of Mandate to Superior Court *For Educational Purposes Only ** NOT LEGAL ADVICE *

  43. COORDINATION OF WORK COMP & HR *For Educational Purposes Only ** NOT LEGAL ADVICE *

  44. Coordination of Work Comp & HR • WC cases must be defended • Integrated approach increases likelihood of victory • Counsel with Expertise in IDR laws • Resistance of IDR has positive deterrent effect on future filings • $$$ savings with joint settlements *For Educational Purposes Only ** NOT LEGAL ADVICE *

  45. Coordination of Work Comp & HR • Fight Industrial Causation? • Multiple Prior Claims • “Medical-only”; PD stipulations; prior surgeries • No AMEs (or limit scope of exam) • Safety Officer • Nearing retirement • Expectation/Culture for PERS IDR? *For Educational Purposes Only ** NOT LEGAL ADVICE *

  46. COORDINATION OF HR & SHERIFF’S DEPARTMENTS *For Educational Purposes Only ** NOT LEGAL ADVICE *

  47. Coordination of HR & Sheriff’s Departments • TTD / change of status reports • Work restrictions • Temporary light duty positions • QIW / RTW determinations • Different legal standard between WC & IDR • “Interactive Process” (ADA/FEHA) • Reduce time lag between P&S status and IDR *For Educational Purposes Only ** NOT LEGAL ADVICE *

  48. Coordination of HR & Sheriff’s Departments • RTW Policy • Permanent “Light duty” • Job Accommodation (ADA/FEHA) • Consistent positions between departments • Essential Job Duties • Hiring v. retention criteria • Cadet, deputy, sergeant, lieutenant, etc. *For Educational Purposes Only ** NOT LEGAL ADVICE *

  49. Coordination of HR & Sheriff’s Departments • Job duties of a Deputy Sheriff • What happens on patrol is highly variable • More strenuous duties occasionally req'd. • POST-Training; annual recertification • Usual duties v. occasional duties • Injuries pose danger to deputy, fellow officers and the public • Duties will inevitably worsen injury *For Educational Purposes Only ** NOT LEGAL ADVICE *

  50. Coordination of HR & Sheriff’s Departments Thelander v. City of El Monte (1983) • Part-time reserve officer required her to attend the police academy • Before academy, she had been diagnosed with asymptomatic scoliosis, which prevented her from completing the academy • Deputies must subdue violent suspects, engage in chases that involve running, jumping and crawling; break up fights; drag or carry victim out of danger • Must be "capable and prepared for the worst every day” • Court found the strenuous activities to be “usual duties” • 147 Cal.App.3d 736 (1983) *For Educational Purposes Only ** NOT LEGAL ADVICE *

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