HomeMy WebLinkAbout21 - Proposed Decision of ALJ Regarding a Disability Retirement in the NBFD�EWPR CITY OF
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- z NEWPORT BEACH
<,FoR�P City Council Staff Report
April 11, 2017
Agenda Item No. 21
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Barbara Salvini, Human Resources Director - 949-644-3300,
bsalvini@newportbeachca.gov
PREPARED BY: Alison D. Alpert, Esq., Best Best & Krieger LLP
PHONE: 619-525-1304
TITLE: Consider Proposed Decision of Administrative Law Judge (ALJ)
Regarding a Disability Retirement in the NBFD
ABSTRACT:
Pursuant to Resolution No. 2015-100, the City delegated the initial decision on
applications for disability retirements to the City Manager. The City Manager denied
the Industrial Disability Retirement Application of Paul Matheis. Following the City's
denial, Matheis requested an appeal hearing which was heard by an Administrative Law
Judge (ALJ) from the California Office of Administrative Hearings. Following a hearing,
the ALJ issued a Proposed Decision, which is now before the City Council for action.
As discussed below, the City Council can take one of several actions in accordance with
applicable law.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) No specific recommendation is made regarding the action to be taken by the City
Council. The City Council may take one of the following actions in accordance with
applicable law:
1) Accept the decision of the ALJ and adopt Resolution No. 2017-27, A Resolution
of the City Council of the City of Newport Beach, California, Adopting the Decision
of the Administrative Law Judge Regarding the Industrial Disability Retirement of
Paul Matheis, thereby approving the Industrial Disability Retirement of Paul Matheis;
2) Make minor technical, non -substantive modifications to the Proposed Decision,
and then adopt the modified decision of the ALJ, and approve a Resolution adopting
the modified decision of the ALJ, thereby approving the Industrial Disability
Retirement of Paul Matheis;
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Consider Proposed Decision of Administrative Law Judge
Regarding a Disability Retirement in the NBFD
April 11, 2017
Page 2
3) Return the matter to the ALJ to take additional evidence or to another ALJ if the
prior ALJ is not reasonably available; or
4) Reject the decision of the ALJ, and decide to hear the matter itself.
FUNDING REQUIREMENTS:
There are no funding requirements if the Council adopts the Administrative Law Judge's
decision. If the Administrative Law Judge's decision is not adopted, the current adopted
budget includes sufficient funding for costs associated with options 3 and 4 above. Fees
would be expensed to the General Liability Attorney Fees account number 7517510-
891017.
DISCUSSION:
When a local agency safety member (police or fire) applies for a disability retirement,
CalPERS law has delegated authority to the local agency, in this case the City, to
determine whether or not the member is incapacitated for the performance of his/her
duties and is otherwise eligible to retire for disability. Gov. Code §§ 21154, 21156.
If the medical examination and other available information show to the satisfaction of
the governing body of the contracting agency employing the member, that the
member in the state service is incapacitated physically or mentally for the
performance of his or her duties and is eligible to retire for disability, the board shall
immediately retire him or her for disability. To be eligible for disability retirement, an
applicant must have a "substantial inability" to perform his "usual duties."
Mansperger v. Public Employees' Retirement System (1970) 6 Cal.App.3d 873, 877.
"Substantial inability" requires more than only difficulty in performing the tasks
common to one's profession. Thelander v. City of El Monte (1983) 147 Cal.App.3d
736.
The burden to prove disability is on the applicant for disability retirement, either the
employer or employee depending on who files the application. The burden to prove
industrial causation always remains with the employee. Lindsay v. County of San
Diego Retirement Board (1964) 231 Cal.App.2d 156, 161. Therefore, because Paul
Matheis is the applicant, the burden to prove both disability and industrial causation
rests with him. There has been no dispute over the issue of industrial causation.
Therefore, the only issue in this matter has been whether Matheis was substantially
incapacitated from performance of his usual duties.
Paul Matheis worked for the City from July 14, 1980 until his service retirement on
January 14, 2011. At the time of his retirement, Matheis worked full-time, without any
physician restrictions, as a Fire Division Chief. Almost five years later, on January
3, 2016, Matheis filed an Application for Industrial Disability Retirement. On June 1,
2016, the City denied the application for industrial disability retirement on the grounds
that Matheis was not substantially incapacitated from performance of his usual duties
as Fire Division Chief with the City. The City denied the application after concluding
that Matheis was not disabled at the time of his service retirement.
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Consider Proposed Decision of Administrative Law Judge
Regarding a Disability Retirement in the NBFD
April 11, 2017
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Matheis timely filed a request for an appeal of the decision denying his industrial
disability retirement. Pursuant to the Administrative Procedures Act (APA), an
administrative law judge ("ALJ") from the Office of Administrative Hearings must be
appointed to act as the presiding officer over the appeal hearing, and may hear the
matter alone or with the governing body of the local agency. Gov. Code § 11512(a).
The City Council in Resolution No. 2015-100 has elected for an ALJ to hear the
appeals on his/her own. Under the APA, since the ALJ was hearing the appeal alone,
the ALJ was required to issue a proposed decision to the City within 30 days after
the case was submitted to her. Gov. Code § 11517(c)(1). Within 100 days of receipt
of the ALJ's proposed decision, the City Council is required to adopt, modify, or reject
the decision. Gov. Code § 11517(c)(2); Gov. Code § 21156.
A hearing was held in which testimony was presented and exhibits were admitted.
The parties each submitted closing briefs. Following the taking of evidence and
arguments from the parties, who were represented by legal counsel, the ALJ issued
a Proposed Decision. The ALJ determined that cause exists to sustain Matheis'
appeal of the City's determination, and reverse the City's decision that he is not
substantially incapacitated from his usual duties as a Fire Division Chief. The
Proposed Decision found that pursuant to Government Code sections 20026, 21151,
subdivision (a), and 21156, as set forth in Findings 1 through 20c of the Decision that
Matheis was substantially incapacitated from his usual duties and entitled to an
industrial disability retirement. The Proposed Order provides that Matheis' appeal is
sustained, and that Matheis should be provided with disability retirement benefits.
The Proposed Decision was provided to the City and the parties.
The Council now may take one of the following actions (Gov. Code § 11517(c)(2)):
• Adopt the ALJ's proposed decision in its entirety (Gov. Code § 11517(c)(2)(A)).
• Make technical or other minor changes in the proposed decision and adopt it
as the decision. Action by the agency under this option is limited to a clarifying
change or a change of a similar nature that does not affect the factual or legal basis
of the proposed decision (Gov. Code § 11517(c)(2)(C)).
• Reject the proposed decision and decide the case on the record, including the
transcript, or an agreed statement of the parties, and affording the parties the
opportunity to present either oral or written argument before the Council. If the
Council elects to proceed under this provision, the City shall issue its final decision
not later than 100 days after rejection of the proposed decision. (Gov. Code §
11517(c)(2)(E)).
• Reject the proposed decision and refer the case to the same ALJ if reasonably
available, otherwise to another ALJ to take additional evidence, and issue a revised
Proposed Decision (Gov. Code § 11517(c)(2)(D)).
The City Council must now take action, as described above, to either approve and
adopt this Proposed Decision, or take other actions consistent with the above.
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Consider Proposed Decision of Administrative Law Judge
Regarding a Disability Retirement in the NBFD
April 11, 2017
Page 4
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Resolution No. 2017-27
Attachment B — Proposed Decision
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Attachment A
RESOLUTION NO. 2017-27
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, ADOPTING THE
DECISION OF THE ADMINISTRATIVE LAW JUDGE
REGARDING THE INDUSTRIAL DISABILITY RETIRE-
MENT OF PAUL MATHEIS
(Section 21156, Government Code)
WHEREAS, the City of Newport Beach (hereinafter the City) (referred to as
Agency) is a contracting agency of the Public Employee's Retirement System;
WHEREAS, the Public Employee's Retirement Law requires that a contracting
agency determine whether an employee of such agency in employment in which he/she
is classified as a local safety member is disabled for purposes of the Public Employee's
Retirement Law and whether such disability is "industrial" within the meaning of such Law;
WHEREAS, an application for industrial disability retirement of Paul Matheis
employed by the Agency in the position of Fire Division Chief has been filed with the
Public Employees' Retirement System;
WHEREAS, pursuant to the authority delegated to the City Manager by action of
the City Council in Resolution 2015-100 pursuant to Section 21173 of the Government
Code, and after review of medical and other evidence relevant thereto, the City
determined that Paul Matheis, a local safety member of the Public Employees' Retirement
System, employed by the Agency was not incapacitated within the meaning of the Public
Employees' Retirement Law;
WHEREAS, following a request for an appeal, the matter was heard before an
Administrative Law Judge ""ALJ") of the Office of Administrative hearings; and
WHEREAS, the ALJ issued a Proposed Decision dated January 23, 2017.
NOW, THEREFORE, the City Council of the City of Newport Beach does resolve
as follows:
Section 1: The attached Proposed Decision of the Administrative Law Judge is
hereby adopted by the City of Newport Beach as its Decision in the matter of the Industrial
Disability Retirement Appeal of Paul Matheis.
Section 2: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 3: If any section, subsection, sentence, clause or phrase of this resolution
is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this resolution. The City Council
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Resolution No. 2017 -
Page 2 of 2
hereby declares that it would have passed this resolution, and each section, subsection,
sentence, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 4: The City Council finds the adoption of this resolution is not subject to
the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15373)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or indirectly.
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this day of , 20_.
Kevin Muldoon
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
a-,— C r"e"—
Aaron C. Harp
City Attorney
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BEFORE THE
OFFICE OF ADMINISTRATI`IE HEARINGS
STATE OF CALIFORNIA
In the Matter of the Statement of Issues
of:
PAUL MATHEIS,
Applicant,
►v&q
CITY OF NEWPORT BEACH,
Respondent.
OAH Case No. 2016070710
Agency Case No. A09-00153
This matter was heard by Laurie R. Pearlman, Administrative Law Judge, Office of
Administrative Hearings, on October 10, 2016, in Newport Beach, California.
Carol M. Matheis, Attorney at Law, represented Paul Matheis (Applicant).
Steven M. Berliner, Attorney at Law, represented City of Newport Beach (Respondent or
City).
Applicant: has filed an application to convert his January 14, 2011, service retirement into a
disability retirement. Respondent denied the application after concluding that Applicant was not
disabled at the time of his service retirement or continuing to the date he filed his application for
industrial disability retirement. Applicant's final industrial injury claim was not fully adjudicated
until May 18, 2016, after which he filed an application for an industrial disability retirement.
Oral and documentary evidence was received at the hearing. The record was left open
until December 22, 2016, to enable the parties to order and lodge a copy of the transcript; submit
pages that were missing from a document; and file closing and response briefs. These were timely
submitted. On December 22, 2016, the record was closed and the matter was submitted for
decision.
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After the hearing, the Applicant filed a request to tape judicial notice of Exhibits 1-11 and
also filed a copy of the NFPA 1582 Standard on Comprehensive Occupational Medical Program
for Fire Departments. Respondent's objections to both are sustained. Respondent filed the
Declaration of Chip Duncan, with attachments. The Applicant's objection thereto is sustained.
Neither the NEPA 1582 Standard, nor the Declaration of Chip Duncan with attachments, will be
considered.
FACTUAL FINDINGS
1. Applicant worked for Respondent from July 14, 1980 until his retirement on
January 14, 2011. At the time of his retirement, Applicant worked as Fire Division Chief. By
virtue of his employment, Applicant is a local safety member of the California Public Employees'
Retirement System (CaIPERS).
2. On January 3, 2016, Applicant filed an application for industrial disability
retirement.
3. On June 1, 2016, the City denied the application for industrial disability retirement
on the grounds that Applicant was not substantially incapacitated from performance of his usual
duties as Fire Di`Tision Chief with the City, focusing on the "primary condition" of skin, low back,
and vascular. (Exhibit G, p.3)'
4a. Applicant timely requested an appeal of the City's denial on June 21, 2016. The
City filed a Statement of Issues and this matter ensued.
4b. At the hearing, the City contended that even if Applicant could establish that he
was substantially incapacitated from the performance of his usual duties at the time' of his
retirement on January 14, 2011, he would also have to demonstrate that he was continuously
incapacitated until he filed the application for disability retirement on January 3, 2016.
Respondent's Evidence
S. Applicant began working for Respondent as a firefighter on July 14, 1980. From
July 1990 until October 2004, he was a fire captain with the City and worked "on an engine
company." In addition to fighting fires, his duties included stooping over to "lift patients every
day," placing them onto a gurney, and into an ambulance. From October 2004 until August 2006,
Applicant was a battalion chief.
' Applica3it contends that the City failed to consider the totality of his injuries,
including his neck and shoulder problems.
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6. From August 2006 through January 2011, Applicant was a fire division chief in
charge of training. This position was primarily administrative. He was "at a desk, in a car, at the
training ground or at an emergency." Applicant was responsible for organizing, directing,
coordinating and supervising the day-to-day activities of the Fire Department Training and
Education Division, as well as responding to fire and medical emergencies. "Respond[ing] to fire,
medical or other emergencies and support incident staff support as assigned" is an "Essential Job
Duty" for Applicant's position with the City as a Division Chief (Exhibit H.)
7a. Each of the positions held by Applicant from 1990 through January 2011 required
him to respond to fire emergencies wearing Rill protective gear, among other duties. The protective
gear, which weighs 50-60 pounds, consists of a fire resistive hood and turnout coat, turnout pants,
safety boots, gloves, and a self-contained breathing apparatus. About five percent of calls involved
fires; at least 75 percent of calls were for medical emergencies. Applicant was required to go out
on virtually every fire call, including times when he was off-duty.
7b. "Respond[ing] to fire, medical or other emergencies and support incident staff
support as assigned" is an "Essential Job Duty" for Applicant's position with the City as a Division
Chief (Exhibit 11.) Applicant was incapacitated from the performance of an essential job duty
from the date of his retirement through the date of his application for industrial disability
retirement.
S. In performing his duties with the City, Applicant incurred injury to his back from
July 1990 until August 2004. (Exhibits 1-5.)'" He sustained injury to his left shoulder on April 20,
2009 (Exhibit 3) Applicant also sustained injury to his low back, circulatory system, and shin
from January 14. 2010 to January 14, 2011. (Exhibit 9.) He suffered a hernia on November 4,
2010, for which he received treatment on April 5, 2011, after he had retired. (Exhibit 6.) Applicant
was evaluated on August 25, 2015 for a dermatological condition after his retirement. (Exhibit 14,
p. 4.) Over his years of employment with Respondent, Applicant had industrial injury claims for
injuries which impacted his lower. back, circulatory system, skin, and cumulative trauma. (Exhibits
1-9.)
z Exhibits 1-12 and 14 were received in evidence as "administrative hearsay;" a
shorthand reference to evidence admitted under Government Code section 11513, subdivision
(d). When evidence is objected to on grounds of hearsay and is not otherwise admissible, that
provision allows it to be used to supplement or explain other admissible evidence. Such
evidence may not. by itself, support a factual finding, but may be combined with other
evidence to provide substantial evidence sufficient to support a finding.
(Komizit v.Gour e -y (2002) 103 Cal.App.4th 1001.)
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9. Responding to emergencies exacerbated the work-related injuries Applicant had
sustained over the course of his career with the City. He did not avail himself of workers'
compensation leave and took a very limited amount of sick leave or compensatory leave for his
injuries. (Exhibit 1.) He "stayed at work while [he] was injured" and endured the pain by working
"around it." Applicant "worked hard and [he] tried to stay at work" because he knew it would be
costly to the City to replace him. At some points, he was permitted to work "light-duty."
10. On January 14, 2011, Applicant took service retirement from his position with the
City as fire division chief. (Exhibit F.)
11. On January 3, 2016, Applicant filed an application for industrial disability
retirement based upon work-related injuries to his cervical spine, right ankle, both hands (carpal
tunnel syndrome), lower spine, left shoulder, hernia, skin (squamous cell carcinoma), and vascular
system. (Exhibit G.) Application for industrial disability retirement was made after Applicant's
industrial injuries had become finally adjudicated, and final permanent disability established with
the Stipulation and Award dated May 18, 2016. Applicant's combined industrial injuries were
rated 61.5% permanent disability for Workers' Compensation purposes.
12. From the date of his retirement through the present, Applicant has experienced pain
in his neck, lower back, left wrist, and in his feet when sitting. He first began to experience back
pain in the early 1990's, which did not abate. At the time of his retirement in January 2011, the
pain in his back was "excruciating." The back pain would begin after driving for 20 minutes. If
he continued to drive after that point, the back pain became "excruciating." Applicant is in "pairs
all of the time every day." I Ie has "to spend a lot of time doing maintenance on [his] low back and
[his] neck to be able to accomplish any kind of pain reduction." If he misses a day of stretching, he
is in greater pain for the next two days. The pain in Applicant's lower back radiates down his right
buttock into his leg. His neck pain interferes with his ability to turn his head to the side.
13. Applicant currently works out with weights six days per week. He has slowly
progressed over the past five years to reach a point where he could do that. While exercising, he is
very careful not to stoop, is "very methodical" and does "a significant period of warm-up." Prior
to a work-out, he spends 30 to 60 minutes stretching his neck, lower back, and shoulders. He
explained that he would be unable to do that type of preparation before responding to an
emergency as a firefighter.
Workers' Conipetv,,ation Awards
14. On March 28, 1992, Applicant sustained injury to his upper back arising from his
employment with Respondent. A Stipulation and Request for Award, and subsequent Awards
dated September 17, 1996 were issued by the Workers' Compensation Appeals Board (WCAB) in
the amount of 7.1% permanent disability.
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15. On April 19, 1993? Applicant sustained injury to both hands and wrists arising from
his employment with the City. A Stipulation and Request for Award, and subsequent Award dated
January 6, 1997, was issued by the WCAB in the amount of 9.2% permanent disability.
16. On January 21, 2003, Applicant sustained injury to his cervical spine arising from
his employment with the City. A Stipulation and Request for Award, and subsequent Award dated
November 3, 2005 was issued by the WCAB in the amount of 16% permanent disability. A
neurosurgical report regarding this injury was prepared by neurologist Don R. De Feo, M.D.
(Exhibit 5.)
17. On December 24, 2003, Applicant sustained injury to his right ankle arising from
his employment with the City. A Stipulation and Request for Award, and subsequent Award dated
February 7, 2005 was issued by the WCAB with no permanent disability.
18. On April 22, 2009, Applicant sustained injury to his left shoulder arising from his
employment with the City. A Stipulation and Request for Award, and subsequent Award dated
March 9, 2011 was issued, by the WCA-B for the State of California in the amount of 17%
permanent disability. A medical report was prepared by Scott P. Fischer, M.D. (Exhibit S.)
19. On November 3, 2010, Applicant sustained a hernia injury arising from his
employment with the City. He sought medical treatment and surgery for the hernia through the
City's medical provider, Ronald C. Neuman, M.D. Dr. Neuman's medical report dated December
5, 2012, stated that Applicant had no permanent disability resulting from the hernia injury. Dr.
Neuman noted complaints of left leg numbness and discoloration on prolonged standing and
sitting and left arnr numbness which awakens Applicant from sleep and which also occurs while
writing. (Exhibit 6.)
20a. From January 14, 2010 through January 14, 2011, Applicant sustained injury to his
back, circulatory system and skin, from his employment with the City. A Stipulation and Request
for Award, and subsequent Award dated May 18, 2016 was issued by the WCAB in the amount of
34% permanent disability.
20b. On October 9, 2015, Applicant received the Panel Qualified Medical Examination
report of Howard_ L. Sofen, M.D., dated September 21, 2015 (Exhibit 14) in connection with his
final industrial injury claim. The City and Applicant jointly had requested that medical
examination. Applicant's industrial injuries became finally adjudicated, and final permanent
disability was established with the Stipulation and Award dated May 18, 2016. Applicant's
combined industrial injuries were rated at 61.5% permanent disability.
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20c. The Agreed Panel Qualified Medical Evaluation of H. Leon Brooks, M.D., dated
May 18, 2012, imposed work restrictions that had the effect of limiting Applicant from performing
essential job duties: repeated gripping and grasping, heavy lifting, repeated bending or stooping,
prolonged sitting or standing, and prolonged walking (Exhibit 1.0, p. 11).
LEGAL CONCLUSIONS
1. Cause exists to sustain Appellant's appeal of the City's determination that he is not
substantially incapacitated from his usual duties as a Fire Division Chief, pursuant to Government
Code sections 20026, 21151, subdivision (a), and 21156, as set forth in Findings 1 through 20c.
2. Government Code section 20026 states:
"Disability" and "incapacity for performance of duty" as a basis of retirement, mean
disability of permanent or extended and uncertain duration, as determined by the
board, or in the case of a local safety member- by the governing body of the
contracting agency employing the member, on the basis of competent medical
opinion.
3. Government Code section 21151, subdivision (a) states:
Any patrol, state safety, state industrial, state peace officer/firefighter, or local safety
member i capacitated for the performance of duty as the result of an industrial
disability ,-shall be retired for disability, pursuant to this chapter, regardless of age or
amount of service.
4. Government Code section 21156, subdivision (a) (1), states in pertinent part:
If the medical examination and other available information show to the
satisfaction of the board, or in case of a local safety member, other than a
school safety member, the governing body of the contracting agency employing
the member, that the member in the state service is incapacitated physically or
mentally for the performance of his or her duties and is eligible to retire for
disability, the board shall immediately retire him or her for disability.
5. In order to be eligible for disability retirement, an applicant must have a
"substantial inability" to perform his "usual duties." (Mansperger v. Public Employees'
Retirement System (1970) 6 Cal.App.3d 873, 877.) "Substantial inability' requires more than
only difficulty in performing the tasks common to one's profession. In Hosford v. Board of
Administration of the Public Employees' Retirement System (1978) 77 Cal.App. 3d 854, a
case involving a state traffic officer with the California Highway Patrol, who held the rank of
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Sergeant, the applicant established that he could run, but inadequately, and that his back
would probably hurt if lie sat for long periods of time, or apprehended a subject escaping on
foot over rough terrain or over and around obstacles. The court found that this was
insufficient to support a finding of disability. The court stated:
Hosford argues that the "Typical Physical Demands" document requires that he
be able to perform these functions "safely and effectively." Both terms are
highly subjective. Even officers in top physical condition may suffer injuries in
performing these tasks, and effectiveness certainly cannot be equated with brute
strength. Each officer must be expected to have an awareness of his own
limitations in facing emergency situations.
6. In Dillard v. City of Los Angeles (1942) 20 Cal.2d 599, 602, the court stated:
Pension laws should be liberally construed and applied to the end that the
beneficent policy thereby established may be accorded proper recognition.
(Citations.)
7. The City correctly asserts that competent medical evidence is needed to support
a finding on the question of whether an applicant qualifies for a disability retirement. The City
contends that Applicant's medical evidence, gathered from his workers' compensation
proceedings, is not competent medical evidence. The City did not present any medical
testimony or docu mentary evidence.
8. Government Code section 21156 requires the agency to consider the medical
examination it can order (under section 21154) "and other available information." The
medical reports prepared for the workers' compensation proceedings constitute "other
available information." Therefore the question is raised as to the weight to be given to the
medical reports generated in Respondent's workers' compensation matter, where the legal
and medical issues are different than in a disability retirement matter such as this.
9. A workers' compensation ruling or settlement is not binding on the issue of
eligibility for disability retirement because the focus of the issues and the parties are different.
(Smith v. City o f Napa (2004) 120 Cal.AppAth 194, 207, citing Bianchi. v. City of Sail Diego
(1989) 214 Cal.App.3d 563, 567; Swntnerford v. Board of Retirement (1977) 72 Cal.App.3d
128, 132.) In Reynolds v. City of'San Carlos (3.981) 126 Cal.App.3d 208, the court
addressed the distinction between workers' compensation laws and the CalPERS: "A finding
by the WCAB of permanent disability, which may be partial for the purposes of workers'
compensation, does not bind the retirement board on the issue of the employee's incapacity to
perform his duties.... (Citations.)" (Id. at 215.)
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10. The Reynolds court cited Pathe v. City of Bakersfield (1967) 255 Cal.App.2d
409 in distinguishing between the workers' compensation laws and Ca1PERS. The two
systems were distinguished as existing for entirelydifferent reasons and they were established
to attain wholly independent objectives. (Reynolds, supra, 126 Cal.App.3d at
p. 212.) The Reynolds court further held that, although they supplement each other, "The
jurisdiction of the WCAB is exclusive only in relation to its own objectives and purposes and
at the very most overlaps the subject matter jurisdiction of the pension board on a single issue
of fact only, the issue as to whether an injury or disability is service -connected ...." (Id. at
213.) Accordingly, a finding of industrial injury under the workers' compensation system
does not entitle an applicant to a disability retirement.
11. The workers' compensation medical reports are not binding here.
Nevertheless, those medical reports are not devoid of relevant information. The findings upon
the various doctors' examinations are objective evidence. The doctors' diagnoses and
opinions are as good as the information upon which they rely. (White v. State of California
(1971) 21 Cal.App.3d 738 Kennemur v. State of California (1982) 133 Cal.App.3d 907.)
12. Aithough the medical reports generated in Respondent's workers'
compensation matter do not use the language of the Government Code disability statutes or
case law interpreting them, this does not render them meaningless. The medical reports of
Drs. DeFeo (Exhibit 5), Neuman (Exhibit 6), Fischer (Exhibit 8), Brooks (Exhibit 10), and
Sofen (Exhibit 14) constitute competent medical opinion which supports the direct testimony
of Applicant On January 14, 2011, Applicant had an accepted open left shoulder injury claim
with the City, which was settled with a Stipulation and Award for 17% permanent disability
(Exhibit 7), supported by competent medical opinion in the form of Dr. Scott Fischer's report
(Exhibit 8). In addition, at the time of Applicant's retirement, he had an accepted "continuing
trauma." industrial injury claim, dating_ from January 1, 2010 through January 14, 2011,
involving his back, vascular system and skin (squamous cell carcinoma). This claim was
finalized on May 18, 2016 (Exhibit 9.) It was supported by competent medical opinion in the
form of the Agreed Panel Qualified Medical examination report of Dr. H. Leon Brooks
(Exhibit 10) and the report of Panel Qualified Medical Evaluator, Dr. Howard Sofen (Exhibit
14).
13. "P.espond[ing] to fire, medical or other emergencies and supporting] incident
staff support as assigned" is an `Essential Job Duty" for Applicant's position with the City as
a Division Chief (Exhibit H.) Dr. Brooks opined that Applicant was precluded from.
performing essential job duties including repeated gripping and grasping, heavy lifting,
repeated bending or stooping, prolonged sitting or standing, and prolonged walking, as set
forth in Findings 6 and 20c. The City failed to present any medical evidence to refute Dr.
Brooks' opinion or those of any of the other physicians who examined or treated Applicant.
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14. The City also argues that Applicant is not disabled because he performed the
duties of his position without restriction until his service retirement on January 14, 2011. This
argument ignores Applicant's actual condition and is contrary to the medical evidence.
Applicant testified credibly and without contradiction about the difficulties under which he
performed those duties, which ultimately prompted his retirement.
15. The City contends that fire fighting constituted a small percentage of
Applicant's job. However, an activity that regularly takes up approximately five percent of
Applicant's work carmot be deemed "remote" as the term was used in Mansperger. Unlike
lifting heavy objects on rare occasions, as discussed _in Man er°ger, fire fighting_is_a core _duty -
of a fire fighter and a fire fighter can be called upon to fight fires at any time. Once engaged
in fire fighting, Applicant may be called upon to perform repeated gripping and grasping,
heavy lifting, repeated bedding or stooping, prolonged sitting or standing, and prolonged
walking for a sustained period of time. Nor can a fire fighter take 30 minutes to an hour to
stretch, prior to engaging in fighting a fire.
16. Applicant was disabled, or incapacitated for performance of duty for a
permanent or exi.ended and uncertain duration, and eligible for an industrial disability
retirement, both on the date of his retirement, and continuing through the date he filed his
application for disability retirement.
1.7. Respondent has sustained his burden of establishing that he is incapacitated
physically for the performance of duty, as required under Government Code sections 21154 and
21156. He is therefore entitled to disability retirement.
1. Applicant Paul Matheis' appeal of the City's determination that he is not eligible
for and entitled to disability retirement benefits, pursuant to Government Code sections 20026,
21151 and 21156, is sustained.
2. Applicant shall be provided with appropriate disability retirement benefits
forthwith.
Dated: January 23, 2017
DocuSigned by:
695B7Z0.�G.E34�2
LAURIE R. PEARLMAN
Administrative Law Judge
Office of Administrative Hearings
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