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					Differences Between
Qualification Requirements for
Workers Compensation Social
Security and CalPERS
Disability Benefits

Tom Barber,
Retirement Program Specialist
Rory Coffey, Senior Attorney
Patricia Miles, Senior Attorney
CalPERS
Disability Retirement
Tom Barber,
Retirement Program Specialist
What is Disability Retirement?
Disability Retirement



        A monthly retirement allowance payable
         to the member for life or until recovery
          from the disabling injury or illness…




4
Statutory Authority
Public Employees’ Retirement Law (PERL) Government
Code Section 20026 defines:
•“Disability” and “incapacity for the performance of duty”
    – Disability of permanent or extended and uncertain duration
    – Based upon competent medical opinion




5
Statutory Authority (continued)
• Case Law: Hosford v. Board of Administration; Raven v.
    Oakland Unified School District; and Wolfman v. Board of
    Trustees of State Teachers’ Retirement System
     – Presently incapable of performing job duties
     – Condition results in future incapacity based on
       medical certainty
     – Prophylactic restrictions or fear of injury is not incapacitating




6
           Member is unable to perform the
           usual duties due to physical or
When       mental condition
to apply
           Condition is expected to be permanent
           or last longer than six months


           Workers’ Compensation issues do not
           need to be resolved before a disability
           application is initiated
Remember
           Condition does not have to be
           permanent and stationary(P & S)
Employer originated application
Government Code Section 21153


       “… an employer may not separate because
        of disability a member otherwise eligible
         to retire for disability but shall apply for
           Disability retirement of any member
                believed to be disabled, ...”




8
Employer originated application (continued)
Who is Authorized to Apply?
• Head of Office or Department

• Director
• Chief Executive Officer

• Delegated Authority




9
     Employer requirements and responsibilities
     Key Points for employer
     completing the Disability
     Retirement Election
     Application (BSD-369-D)
     • Check box indicating
       employer originated
       application
     • Sections 1-2
     • Section 11
     • No retirement date is
       required to begin the
       process
10
     Employer requirements and responsibilities
     (continued)

     The employer should…
     •Use the Employer
     Information on Disability
     Retirement form as a
     cover sheet for employee
     information sent to CalPERS




11
Employer requirements and responsibilities
(continued)

The employer submits to CalPERS:
•Disability Retirement Election Application
•Employer Information for Disability Retirement form
•Job Duty Statement

•Physical Requirements of Position/Occupational Title form




12
Employer requirements and responsibilities
(continued)

Additional documents where applicable:
•Personnel Records
     – Adverse Actions
     – Investigative Reports
•Medical Information to Support Application
     – Fitness for Duty reports
     – Doctor notes


13
Employer originated application
Time frames
•Member is provided 30 days to cooperate

•After 30 days, member is sent an “options letter”
•An Independent Medical Examination (IME) may be
considered if necessary
•If there is no response, the application will be cancelled




14
Substantial Incapacity vs. Qualified
Injured Worker
Substantial Incapacity considerations:
•The medical condition and its residual effect on member’s
ability to perform job duties
•The job duties; the frequency of those duties; and how
critical are those tasks to the overall performance of the job
•Actual and present inability to perform the usual duties.
Prophylactic restrictions are not a factor




15
Substantial Incapacity vs. Qualified
Injured Worker (continued)
Qualified Injured Worker:
•Precludes particular work activities enough that it
entitles the worker to be retrained
•The worker is not able or not likely to return to work

•Prophylactic restrictions may be a factor




16
Criteria differences
Workers’ Compensation

• Provides medical treatment to Injured Workers.

• Replaces lost wages for a specified period of time
• Utilizes a numeric formula to determine level of
     permanent disability based on diminished future
     earning capacity to compete in the open labor market.




17
Criteria differences (continued)
Workers’ Compensation

• Seeks to finalize the claim by a negotiated settlement or
     by obtaining an award from the WCAB which may resolve
     issues including temporary disability, permanent disability,
     personnel, and future medical care.




18
Criteria differences (continued)
CalPERS

• Benefit is not negotiable or determined through a
     settlement process
• Does not weigh the total cost of the application or seek
     to buyout future medical care
• The determination of substantial incapacity is based
     upon a medical decision




19
Criteria differences (continued)
CalPERS

• The disability retirement determination is always based
      upon factors of the impairment and/or it’s residuals
• CalPERS will continue to pay the disability benefit until
      the member recovers to the point of returning to work
      or for life


     The medical information, in conjunction with the vocational
              information, substantiates the decision.


20
Disability determinations
Items considered in the disability determination are:
•All medical information

•Vocational information
•Other information provided by member/ employer/ Workers’
Compensation carrier
•An actual and present disability; not prospective




21
Disability determinations
Decision by CalPERS
•Approve DR/IDR
     –    Possible re-evaluation
     –    Member and/or employer can appeal decision
•Deny DR/IDR
     –    Member and/or employer can appeal decision
•Cancel




22
Social Security and
CalPERS Disability
Benefits

Rory Coffey, Senior Attorney
     A Case Study – CalPERS'
     Precedential Case

     Ruth Keck v. Los Angeles
     County Schools
     Patricia Miles, Senior Attorney




24
About the member
• Employed as clerk typist and secretary 19 years
• Duties: Primary contact at front office of school
• Sustained injury June 30, 1997
• Sought medical care with Dr. Steiger
     – Temporary Disability Status (July 1997 – January 1998)




25
Workers’ compensation medical opinions
Treater Dr. Steiger

• Diagnoses
     - Cervical and lumbar spine musculoligamentous sprain
     - Lumbar spine radiculitis
     - Bilateral lower extremity radiculitis




26
Workers’ compensation medical opinions
Treater Dr. Steiger

• Restrictions
     - No heavy lifting
     - No repetitive pushing or pulling or reaching
     - No repeated bending or stooping
     - No continuous neck movement or downward gaze




27
Request return to work on
December 17, 1997
Denied by Employer
•“The restrictions listed …will not allow you to fulfill the duties
of your position… You may return to work upon clearance
from your doctor pending no restrictions.”
•Member continued to receive full pay (sick leave
and vacation)




28
Workers compensation medical
Qualified medical evaluator (QME) Dr. Wood
• Diagnoses
     – Cervical spine strain/sprain
     – Lumbar spine strain/sprain
     – Disc bulges L4-5 and L5-S1




29
Workers compensation medical (continued)
Qualified medical evaluator (QME) Dr. Wood

• Factors of Disability
     Objective: (Cervical) Decreased range of motion; MRI findings,
                 (Back)    Positive straight leg raising
     Subjective:
        (Cervical) Constant slight pain becoming slight to moderate
        with lifting, pushing and pulling
        (Back) Constant slight pain becoming slight to moderate
        with heavy lifting, repetitive bending and stooping



30
Workers compensation medical (continued)
Qualified medical evaluator (QME) Dr. Wood

• Factors of Disability
     Objective: (Cervical) Decreased range of motion; MRI findings,
                 (Back)    Positive straight leg raising
     Subjective:
        (Cervical) Constant slight pain becoming slight to moderate
        with lifting, pushing and pulling
        (Back) Constant slight pain becoming slight to moderate
        with heavy lifting, repetitive bending and stooping



31
Workers compensation medical (continued)
Qualified medical evaluator (QME) Dr. Wood

• Work Restrictions
     “In an effort to avoid further injury, this patient should be
     prophylactically precluded from very heavy work with regard
     to her neck. With regard to the lumbar spine, the patient
     should be prophylactically precluded from performing very
     heavy work.”




32
Workers Compensation Medical (continued)
• Outcome
     – Workers Compensation Appeal Board (WCAB)
       Compromise and Release dated June 5, 1998




33
Application for Disability Retirement
Signed June 30, 1998
• Orthopedic complaints
     – Neck pain radiating to upper back/shoulders
     – Low Back pain radiating to hip
     – Left Arm numbness
     – Right Foot numbness




34
CalPERS medical opinion
Independent medical evaluator (IME) Dr. Yogaratnam
• Exam findings
     - Neck normal range of motion; tenderness/slight pain with movement
     - Upper extremities normal
     - Lumbar Spine pain and tenderness; no muscle spasm
      - Lower extremities normal




35
CalPERS medical opinion (continued)
Independent medical evaluator (IME) Dr. Yogaratnam
• Diagnoses
     ‒ Cervical spine degenerative disc disease
     ‒ Lumbar spine degenerative disc disease
     ‒ Obesity




36
CalPERS medical opinion (continued)
Independent medical evaluator (IME) Dr. Yogaratnam
• Factors of Disability
     Objective: Decreased range of motion (cervical), MRI findings,
     positive straight leg raising
     Subjective:
     –   (Cervical) Constant slight pain becoming slight to moderate
         with lifting, pushing and pulling
     –   (Back) Constant slight pain becoming slight to moderate
         with heavy lifting, repetitive bending and stooping




37
CalPERS medical opinion (continued)
Independent medical evaluator (IME) Dr. Yogaratnam
• Factors of Disability
     Objective: Decreased range of motion (cervical), MRI findings,
     positive straight leg raising
     Subjective:
     –   (Cervical) Constant slight pain becoming slight to moderate
         with lifting, pushing and pulling
     –   (Back) Constant slight pain becoming slight to moderate
         with heavy lifting, repetitive bending and stooping




38
CalPERS medical opinion (continued)
Independent medical evaluator (IME) Dr. Yogaratnam
• Conclusion
     “Given the nature of her duties, I believe that she can cope   with
     the work…Any difficulty that she would have in performing      any
     strenuous physical activity for any prolonged period is
       not significant”
     “She is not substantially incapacitated with performance
       of her duties”




39
CalPERS disability retirement denial
Dated January 5, 1999

• “Your orthopedic (neck and back) conditions are not
     disabling.”
• “We have concluded that you are not substantially
     incapacitated for the performance of your job duties as
     a school secretary II”
• Member filed Appeal.




40
Social security medical opinion
Dr. Mays

• Diagnoses
     - Cervical spine severe pain and discogenic disease
     - Lumbar spine severe pain chronic muscle strain
     - Mildly decreased motor strength right hip and thigh
• Outcome
      – Social Security Administration fully favorable decision
        (March 18, 1999)



41
Appeal hearing
• March 2000 Administrative Law Judge upheld the
     CalPERS denial
“There is no evidence offered to establish that the standard
  applied in the social security case is the same as the
  standard applied by CalPERS…the decision in the case
  before the Social Security Administration is not relevant”




42
Questions

				
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