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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33532
Experience:  Retired (mostly)
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Im a peace officer and I was deemed P&S in April 2012 with

Customer Question

I'm a peace officer and I was deemed P&S in April 2012 with restrictions of 15 minutes typing/writing combined and no lifting over 5 lbs. My work sent a letter saying they can't accommodate. I spoke with my union attorney who said to file for industrial disability retirement, which I did in May 2012. In July 2012 I had an AME. AME said I couldn't return to my usual duties. He went on to say I'm precluded repetitive activities or prolonged us of a computer keyboard. My retirement was denied or I asked for accommodations based on P&S and AME restrictions. My employer is however ignoring everything else except for repetitive activities or prolonged us of a computer keyboard. I've already had bilateral carpal tunnel surgery and suffer from job related cervical disk disease and bilateral medial & lateral epicondylitis.

1. What are my options?
2. Can my employer ignore the P&S restrictions and accept only the piece they want from the AME?
3. Any case law or precedence that I can use?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Legalease replied 1 year ago.

Hello there

-

This is an unfortunate situation that happens very often these days. Can I ask you some questions:

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1. In your union contract, do they have an agreement with the company regarding people who are out on WC or non work related disability -- setting forth a certain number of weeks or months that they must hold the job open for that person (for example, the UCFW has an agreement that a person's job must be held open for 1 year after the date of injury and then the company may terminate the employee but must still pay WC benefits -- does you company have any agreement like that with the union?)

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2. How long have you worked for this company and been a union member?

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3. Do you believe that any of this comes from age discrimination (over 40 yrs old) or race, gender, etc discrimination?

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4. Has the company told you and/or your lawyer or the union that they do not have a job available that they can accommodate your restrictions?

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5. What was the official reason why your disability retirement was denied?

-

-

MARY

Customer: replied 1 year ago.
Responses to questions:
1. I'm a county employee and our union agreement is for CalPERS local safety employee, which falls under Ca public employees retirement law. This means i have CalPERS retirement, but my employer makes the decision whether to retire or accomodate. WC is 1 yr of 4850 pay and 1 yr of SDI. For non-work related injuries it's up to 1 yr as long as it's not a permanent injury.

2. I've worked for Santa Clara county since 1997 and I'm vested.

3. It may because I'm under 50. A coworker over 50 with only on injured hand wasn't treated this way.

4. After the P&S report I received a letter saying they can't accommodate.

5. I've tried to get a specific reason, but haven't been give one. The letter only says "under section 21173, government code, and after review of medical and other evidence relevant thereto, I hereby determine, my name, is not incapacitated physically or mentally, within the meaning of the Public Employees' Retirement Law for performance of duties in the position of Deputy Probation Officer III."

I couldn't find anything supporting their claim, but section 20027 of California Public Employees' Retirement Law, part 3, chapter 1, article 2, seems to support my position.
Customer: replied 1 year ago.


Hello again,


 


The website indicated my question would be answered by a California employment attorney, but I wasn't able to locate your name on the California Bar Association's website. Are you licensed to practice in CA?

Expert:  Legalease replied 1 year ago.

Hello RM --

-

I am not licensed in CA - however, this is a general law website and we all answer questions across the 50 states. Your issues and the state of the law in CA is not significantly different from other states on these issues (that's one of the reasons why I knew there would be a time limit in a union contract on the WC and disability injury time). However, I will opt out of the question and place it back on the board with a note for one of the CA attorneys to pick this question up. I do not know who is online this evening, so it may take until tomorrow for your question to be picked up so I ask that you have a bit of patience and someone will answer as soon as online and available.

-

Best of Luck to you !

-

MARY

Expert:  socrateaser replied 1 year ago.
Hello,

Different contributor here. I am a member in good standing with the State Bar of California and you can verify this with customer service -- though I prefer to remain anonymous in this forum. Please permit me to assist.

Govt. Code 21156(b)(2) permits you to appeal the determination of your ineligibility for retirement to an adminsitrative law judge. In my view, the inability to lift more than 5 lbs. at work is a practical bar to any employment, even in an office environment. Coupled with the fact that you can only type for no more than 15 minutes at a time, this would seem to preclude any work, no matter how nominal in nature. I do not see how you cannot be deemed totally disabled from public service.

If it were me, I would ask my WC attorney to assist me with an appeal.

Hope this helps.




Customer: replied 1 year ago.

Thank you for the reply, I appreciate it. WC attorneys however don't typically handle appeal hearings, especially for peace officers. The attorney who use to handle these types of cases in N. Ca retired. I've done a lot of research and the appeal process can be complicated, more than I can handle.


 


You seem to know quite a bit about this process and I'm sure you understand the biases that take place for local safety where the county makes the decisions since I fall under Public Employees' Retirement Law and not 2005 Ca GC 2115-21176 Article 6.


 


I appreciate your anonymity, but have to ask if you know a knowledgeable attorney in N. Ca brave enough to take on such a case


 


Plato

Expert:  socrateaser replied 1 year ago.
Good morning,

You stated that your letter referred to Govt. Code 21173. My reference to the appeal provided for in Govt. Code 21156(b)(2) is based upon the same section of law. Therefore, I believe that my reference is correct, unless the letter misstates the applicable law (which seems unlikely).

Anyway, that said, the website prohibits us from providing direct referrals. And, I believe it may be a violation of California law to provide a referral to anything other than the State Bar Certified Lawyer Referral services (click here). It also seems to me that the union ought to have a list of attorneys who handle these cases. I presume that your reference to the retired Northern Cal attorney who used to handle these cases implies that he or she was the lawyer that the union would generally recommend.

The core issue is proving that you are in fact totally disabled, as a practical matter, and unless you can retire, your employer is likely to claim that it cannot reasonably accommodate your disabilities, therefore, it can terminate your employment.

The irony is that if the employer is preparing to terminate you, because you cannot perform the essential functions of your job due to your disabilities, then that would prove you are totally disabled and that you should be entitled to retirement. Thus, it seems that the employer is actually shooting itself in the foot (or, at least wasting a lot of time) by finding that you are not entitled to take retirement.

In short, your employer wants to fire you for being too disabled to work at your former employment, but not disabled enough to receive retirement. I don't see a gap between the two classes of persons. You're either capable of doing your job, or totally disabled.

My reason for suggesting your WC attorney is because he/she understands disability, so it would seem to be a relatively straightforward matter to file an appeal and present the same sort of argument to the ALJ as would be made to the WCB. Obviously, if the/she doesn't want the business, then you'll have to look elsewhere, but this issue seems a natural fit, and if the attorney becomes familiar with the issue, then he/she would have a new business opportunity, since apparently the only person around who knows how to handle these cases is "retired."

Funny -- I'm retired, too, and I seem to know how to handle these types of cases. What a coincidence. Seriously, though, I'm not that attorney, at least, I wasn't when I woke up this morning.

I wish I could do more, but that's all I can offer in this forum. Please let me know if I can be of further assistance.



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