Disability Retirement

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Disability Retirement
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PART 1
The Process
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Whats the process?

• Application
• ?
• Investigation
• ?
• Independent Medical Exam
• ?
• 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
• Employees Statement of Disability
• Information Release
• Attorney Designation form (if applicable)
• Physicians Statement of Disability
• Applications will not be accepted without a
  completed physicians 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 Employees/Applicants 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
• Workers Compensation file
• Employer Supervisors statements
• Additional medical records are requested from
  the applicants personal physicians if
  necessary.
• Follow-up requests are made.

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Disability Investigator Roles

• The Investigator evaluates the evidence
  consisting of the applicants 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 Boards 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 Boards 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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Applicants 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 retiredif the
  members incapacity is a result of injury or
  disease arising out of and in the course of the
  members 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 cant 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

• 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, OToole)
• (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??