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HomeMy WebLinkAbout03 - Decision Regarding a Disability Retirement in the NBFDQ SEW Pp�T CITY OF s NEWPORT BEACH C'94IF09 City Council Staff Report July 11, 2017 Agenda Item No. 3 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: Adopt Decision Regarding a Disability Retirement in the NBFD 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. The City Council rejected that Proposed Decision on April 11, 2017, and determined it would hear the matter itself on the administrative record, including the transcript, and with the parties submitting written argument. The City Council considered the matter on June 27, 2017 and a decision denying the industrial disability retirement application (Decision) has been prepared for consideration by the City Council. 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) The City Council may, in accordance with applicable law, Adopt Resolution No. 2017-27, A Resolution of the City Council of the City of Newport Beach, California, Adopting the Decision in the Industrial Disability Retirement of Paul Matheis, thereby denying the Industrial Disability Retirement of Paul Matheis, or provide other direction to counsel for the City. FUNDING REQUIREMENTS: There are no funding requirements if the Council adopts the Decision. 3-1 Consider Proposed Decision of Administrative Law Judge Regarding a Disability Retirement in the NBFD July 11, 2017 Page 2 DISCUSSION: After rejection of the Proposed Decision of the ALJ and the decision to hear the matter itself, the Council is required to issue its decision within 100 days of the rejection. The rejection occurred on April 11, 2017. The City Council must now take action, as described above, to either adopt this Decision, or provide other direction to counsel for the City. 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 3-2 ATTACHMENT A RESOLUTION NO. 2017- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADOPTING THE DECISION ON THE INDUSTRIAL DISABILITY RETIRE- MENT OF PAUL MATHEIS (Section 21156, Government Code) WHEREAS, the City of Newport Beach (hereinafter the "City") 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 City 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 City, 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 a Proposed Decision dated January 23, 2017 was issued; WHEREAS, on April 11, 2017, the City Council voted to reject the Proposed Decision and hear the matter itself on the record, including the transcript, with the parties providing written argument; and WHEREAS, at its June 27, 2017 meeting, the City Council considered this matter. NOW, THEREFORE, the City Council of the City of Newport Beach does resolve as follows: Section 1: The attached Decision 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. 3-3 Resolution No. 2017-27 Page 2 of 2 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 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 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. 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 11th day of July, 2017. Kevin Muldoon Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE ,,-- C �-- Aaron C. Harp City Attorney Attachment: Newport Beach City Council's Decision dated July 11, 2017 3-4 BEFORE THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH In the Matter of the Statement of Issues of- PAUL £ PAUL MATHEIS, Applicant, V. CITY OF NEWPORT BEACH, OAH Case No. 2016070710 Agency Case No. A09-00153 Respondent. DECISION This matter was heard by Laurie R. Pearlman, Administrative Law Judge (ALJ), 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 the City of Newport Beach (Respondent or City). On January 3, 2016, Applicant filed an application to convert his January 14, 2011, service retirement into an industrial disability retirement. On June 1, 2016, Respondent denied the application on the grounds that Applicant was not substantially incapacitated from performance of his usual duties as Fire Division Chief with the City. Applicant appealed Respondent's denial and the appeal was sent to ALJ Laurie Pearlman (Judge Pearlman) for hearing and consideration. On October 10, 2016, the appeal hearing was held before Judge Pearlman and Judge Pearlman received oral and documentary evidence. After the hearing, Applicant filed a request to take judicial notice of Exhibits 1-10 and 14 and also filed a copy of the NFPA 1582 Standard on Comprehensive Occupational Medical Program for Fire Departments. Respondent objected to both on the ground that there was no legal basis for judicial notice to be taken of the exhibits, and the objections were sustained by Judge Pearlman. Similarly, after the hearing, Respondent filed the Declaration of Chip Duncan, with attachments. The Applicant objected thereto, and Judge Pearlman sustained the objection. Neither the NFPA 1582 Standard, nor the Declaration of Chip Duncan with attachments, were considered by Judge Pearlman as part of the administrative record. Exhibits 1-10 and 14 remain part of the evidence, however, admitted only as administrative hearsay. 55364.00016\29913398.1 3-5 Judge Pearlman left the record 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 introduced at the hearing; and file closing and response briefs. These items were timely presented and the record was closed and submitted for decision on December 22, 2016. On January 23, 2017, a proposed decision was issued by Judge Pearlman (Proposed Decision). On April 11, 2017, the City Council of the City of Newport Beach (City Council) considered the Proposed Decision. At that time, the City Council rejected the Proposed Decision and made a determination it would decide the matter itself based upon the administrative record, including the transcript of the hearing, with the parties providing written argument. Counsel for the parties submitted written argument on June 21, 2017. The matter was considered by the City Council on June 27, 2017, and this decision is hereby adopted by the City Council on July 11, 2017. In making this decision, the City Council has not considered any evidence not admitted into evidence by Judge Pearlman, accepting her rulings on the parties' objections. In addition, the City Council adopts the evidentiary rulings of Judge Pearlman on the admission of evidence, including those exhibits admitted as administrative hearsay, subject to the limitations recognized by Judge Pearlman that administrative hearsay cannot be relied upon to establish any finding and can only be used to supplement other admissible evidence. To the extent Judge Pearlman made any evidentiary ruling or finding that administrative hearsay can support a finding of disability without direct medical evidence or that Applicant's lay opinion is admissible to establish disability, the City Council rejects these determinations and evidentiary rulings. FACTUAL FINDINGS 1. Applicant worked for Respondent from July 14, 1980 until his retirement on January 14, 2011. (Administrative Record ("AR") 375:6-10.) At the time of his retirement, Applicant worked as Fire Division Chief. (AR 406:7-13.) By virtue of his employment, Applicant is a local safety member of the California Public Employees' Retirement System (Ca1PERS). (AR 91-93.) 2. On January 3, 2016, approximately five years after his service retirement, Applicant filed an application for an industrial disability retirement. (AR 45.) 3. On June 1, 2016, the City denied the application for industrial disability retirement on the grounds that Applicant was not incapacitated within the meaning of the Public Employees' Retirement Law from performance of his usual duties as Fire Division Chief with the City and with other California public agencies in Ca1PERS. (Exhibit G, p.3; AR 47.) 4. Applicant timely requested an appeal of the City's denial on June 21, 2016. The City filed a Statement of Issues and this appeal was referred to Judge Pearlman for hearing. (AR 21-34,46.) 2 55364.00016\29913398.1 M 5. At the appeal hearing before Judge Pearlman, the City contended that Applicant was required to establish that he was substantially incapacitated from the performance of his usual duties at the time of his retirement on January 14, 2011, and remained continuously incapacitated until he filed his application for disability retirement on January 3, 2016. (AR 128.) 6. Applicant began working for Respondent as a firefighter on July 14, 1980. (AR 375: 6-10.) From July 1990 until October 2004, he was a Fire Captain with the City and worked "on an engine company." (AR 376:23 — 377:2.) From October 2004 until August 2006, Applicant was a Battalion Chief. (AR 406:14-20.) 7. From August 2006 through January 2011, Applicant was a Fire Division Chief in charge of training. (AR 406:7-13; 409:10-16.) This position was primarily administrative. (AR 410:18-20.) He was "at a desk, in a car, at the training ground or at an emergency." (AR 411:25- 412:5.) 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. (AR 51.) One "Essential Job Duty" for Applicant's position with the City as a Fire Division Chief was to "Respond to fire, medical or other emergencies and provide incident staff support as assigned." (Exhibit H; AR 51.) Applicant testified that it meant that he had to get into his gear and be ready to perform. (AR 411:25- 412:3.) 8. While each of the positions held by Applicant from 1990 through January 2011 required him to respond to fire emergencies, only about five percent of the calls for the Fire Department are fire calls as opposed to medical calls. (AR 409:23-410:13.) 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. (AR 407:23-408:9.) Applicant was required to go out on virtually every fire call, including times when he was off-duty. (AR 408:10- 15.) Applicant did not testify that he performed any active role at any of the fires he responded to as a Fire Division Chief, or performed any work other than supervising activities. (AR 410:18-20.) 3 55364.00016\29913398.1 3-7 18. None of the above Medical Reports imposed restrictions on Applicant's ability to work. (Exhibit 5, AR 163-166; Exhibit 6, AR 167-177; Exhibit 8, AR 187-192; Exhibit 10, AR 203-214; Exhibit 14, AR 223-227.) 2 55364.00016\29913398.1 21. On January 14, 2011, Applicant took service retirement from his position with the City as Fire Division Chief (Exhibit F; AR 43-44.) 22. retirement. On January 3, 201 23. While Applicant stated that from the date of his retirement through the present, he has experienced pain Ihis pain did not result in an inabilitv to perform. (AR 426:22-25.1 Applicant was still able to do his fob, both as a Fire Division Chief and in his prior position, for at least 16 years. (AR 426:22-428:1.) Applicant currently works out with weights six days per week. (AR 420:9-17.) He lifts 100 -pound dumbbells in each hand and bench presses 150 pounds. (AR 420:20-421:11.) Applicant testified that the average person would not be able to lift such heavy weights and that it is "extreme." (AR 425:18-24.) He has slowly progressed over the past five years to reach a point where he could do that level of workout. (AR 424:17-425:24.) While exercising, he is very careful not to stoop, is "very methodical" and does "a significant period of warm-up." (AR 424:5-15.) Prior to a workout, he spends 30 to 60 minutes stretching his neck, lower back, and shoulders. (AR 424:5- 15.) 24. Applicant testified he decided to retire because it was "the best time to retire based on all of the situations regarding [his] employment at the time." (AR 440:14-20.) Among the reasons he cited were his maxed out accrual, the City's increase of the amount he would 5 55364.00016\29913398.1 MJO have to nav for his retirement and LEGAL CONCLUSIONS 1. Cause does not exist 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 24. 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. (Emphasis added). 3. Government Code section 21151, subdivision (a) states: Any patrol, state safety, state industrial, state peace officer/firefighter, or local safety member incapacitated 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. 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 Sergeant, the applicant established that he could run, but inadequately, and that his back would probably hurt if he 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: on 55364.00016\29913398.1 3-10 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 Pension laws should be liberally construed and applied to the end that the beneficent policy thereby established may be accorded proper recognition. (Citations.) 7. 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 of Napa (2004) 120 Cal.App.4th 194, 207, citing Bianchi v. City of San Diego (1989) 214 Cal.App.3d 563, 567; Summerford v. Board of Retirement (1977) 72 Cal.App.3d 128, 132.) In Reynolds v. City of San Carlos (1981) 126 Cal.App.3d 208, the court addressed the distinction between workers' compensation laws and the Ca1PERS: "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.) 8. The Reynolds court cited Pathe v. City of Bakersfield (1967) 255 Ca1.App.2d 409 in distinguishing between the workers' compensation laws and Ca1PERS. The two systems were distinguished as existing for entirely different 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. 9. The Respondent correctly asserts that competent medical evidence is needed to support a finding on the question of whether an applicant qualifies for a disability retirement. Applicant is required to prove by a preponderance of the evidence that he was substantially incapacitated at the time of his retirement, continuing until the date of filing for a disability retirement. Gov. Code § 21154(d); Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1044. 10. Applicant did not meet his burden to establish by competent medical evidence that he was entitled to a disability retirement. First, the medical reports were admitted as administrative hearsay that can only supplement direct medical evidence. By itself, the medical reports are insufficient to meet Applicant's burden of proof. Applicant 7 55364.00016\29913398.1 3-11 is not a medical professional and Applicant's lay opinion is not direct evidence of disability that can be supplemented by hearsay evidence. Applicant did not provide admissible medical evidence by calling one or more physicians to testify about his condition and Applicant's testimony and his own interpretation of the hearsay medical reports is insufficient. Further, the Workers' Compensation Stipulations and Awards, admitted as administrative hearsay, are not binding in a disability retirement matter, and do not establish disability for purposes of a disability retirement. 11. Further, while Applicant testified about the difficulties under which he performed his duties and the pain, he testified he performed his usual and customary duties as a Fire Division Chief until the day of his retirement. (AR 43, 419:1-3. Pain or difficultv in Derformine duties does not establish incapacity to perform. lay opinion could be considered evidence on his disability or substantial inability to perform, Applicant never testified he was not able to perform his duties as Fire Division Chief with the City at the time of his service retirement; therefore his testimony does not support a finding of substantial inability to perform the usual duties. 12. Finally, even if the hearsay medical reports and medical evidence were relied upon as competent evidence, which they should not be as administrative hearsay, they do not establish physical or mental incapacity to perform usual duties from the time of Applicant's retirement until the date of filing his application, as required under the law to support a disabilitv retirement. - rurtner, this restriction cioes not establlsn wnetner on a rare basis, 1n an emergency, Applicant could perform duties at a fire or whether these restrictions would preclude him from performing fire support on an emergency basis or any of his other duties. 13. Applicant was not incapacitated for performance of duty for a permanent or extended and uncertain duration, on the date of his retirement, and continuing through the date he filed his application for disability retirement, and is not eligible for an industrial disability retirement. Applicant did not prove by a preponderance of the evidence, that he had a substantial inability to perform his usual duties. 14. Respondent has not 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 not entitled to an industrial disability retirement. N. 55364.00016\29913398.1 3-12 ORDER 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 denied. 2. Applicant's service retirement will not be converted to an industrial disability retirement. 3. Applicant's application for an industrial disability retirement is denied. Dated: July 11, 2017 x 55364.00016\29913398.1 3-13