Disability Retirement

1. Disability Retirement

2. PART 1 The Process

3. What’s the process? • Application ↓ • Investigation ↓ • Independent Medical Exam ↓ • Staff Recommendation to Board

4. 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

5. 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.

6. 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.

7. 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

8. Why does it take so long?

9. 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.

10. 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.

11. 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.

12. BOEBoard Ordered Examination • The examination phase typically takes 2-3 months. • An appointment is made with a panel physician. • Multiple conditions require numerous evaluations.

13. 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).

14. Final Investigations • The Investigator interviews coworkers, supervisors and witnesses. • Review of job assignment, usual duties and the possibility of an accommodation.

15. 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.

16. 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

17. 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.

18. The Board’s Adjudicatory Role

19. 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.

20. The Board’s Role The Boarddetermines, 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.

21. PART 2 The Legal Standard

22. 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 Causedthe 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.”

23. 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

24. 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

25. 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 offurther 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

26. 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

27. USUAL DUTIES • Usual duties are: • Performed frequently • Performed in a specific assignment (Barber) • 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 • 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)

28. 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)

29. 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

30. 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

31. 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)

32. ??Questions??