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HomeMy WebLinkAbout14 FINDING AND DETERMINING THE INDUSTRIAL DISABILITY RETIREMENT OF KHAYA BRESKINAGENDA REPORT MEETING DATE: SEPTEMBER 4, 2018 TO: SUBJECT SUMMARY JEFFREY C. PARKER, CITY MANAGER Agenda Item 14 Reviewed: City Manager (fA Finance Director DERICK YASUDA, DIRECTOR OF HUMAN RESOURCES FINDING AND DETERMINING THE INDUSTRIAL DISABILITY RETIREMENT OF KHAYA BRESKIN Adoption of the attached Resolution will certify that Khaya Breskin is industrially disabled from her position of Police Officer and enable CalPERS to process her industrial disability retirement. RECOMMENDATION Adopt Resolution No. 18-59 finding that Police Officer Khaya Breksin is industrially disabled from performing the duties of her position. FISCAL IMPACT None. BACKGROUND AND DISCUSSION An industrial disability retirement is retirement resulting from an employee's mental or physical incapacity to perform his/her usual job duties as the result of a job-related injury or illness. For local safety employees (e.g. sworn Police Officers) enrolled in the California Public Employees' Retirement System (CalPERS), state law requires the employer to make a determination on a member's eligibility for industrial disability retirement. In accordance with the California Public Employees' Retirement Law (PERL), a local safety employee qualifies for an industrial disability retirement if he/she 1) is determined, on the basis of competent medical opinion, to be substantially incapacitated from performing the usual and customary duties of his/her position, 2) the disability is permanent or of an extended and uncertain duration, and 3) the cause of the injury or illness is industrial, arising out of and in the course of employment. In accordance with CaIPERS guidelines, as soon as it is believed that an employee is unable to perform his/her job because of an industrial injury or illness that is expected to City Council Agenda Report September 4, 2018 Industrial Disability Retirement of Khaya Breskin Page 2 be permanent or of an extended and uncertain duration, the employee (or the employer on his/her behalf) should submit an application for industrial disability retirement. Khaya Breskin has been employed by the City of Tustin as a Police Officer for approximately 19 years. On October 20, 2015, Officer Breskin was involved in an on - duty vehicle collision and subsequently filed a workers' compensation claim for her back, which was ultimately accepted. Initially she returned to work with work restrictions that were accommodated in a light duty desk assignment. On April 22, 2016, Officer Breskin was placed on LC 4850 leave per the City's Personnel Rules that restrict light duty assignments to no more than six (6) months. On April 21, 2017, she exhausted her LC 4850 benefits, one full year of salary continuation. Since she remained totally temporarily disabled (TTD) she was then eligible to receive temporary disability (TD) benefits administered by the City's third party workers' compensation administrator. Officer Breskin's primary treating physician, Dr. Smith, referred her to Dr. Scott Hardy for evaluation and to report on her permanent and stationary status. On July 26, 2018, Dr. Hardy reported that Officer Breskin has permanent restrictions that preclude her from frequent heavy lifting, repetitive bending, high impact activities, climbing, jumping and prolonged running, and is unable to perform arrest and control techniques. Dr. Smith has reviewed the report and concurs with the restrictions and preclusions. Considering the above, the City's human resources staff, third -party workers' compensation administrator and defense attorney believe that the City has all the information necessary to determine that Khaya Breskin is industrially disabled from her position as a Police Officer in accordance with the criteria set forth in the PERIL. Upon City Council adoption of the attached resolution, staff will send the resolution to CalPERS to certify her industrial disability and allow CalPERS to process her industrial disability retirement application. Prepared by: V_Iz� _� Katyn Ro not S ana nt Analyst Attachments: 1. City Council Resolution No. 18-59 Approved by: Derick Yasuda Director of Hum n Resources RESOLUTION NO. 18-59 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, FINDING THAT KHAYA BRESKIN, A LOCAL SAFETY MEMBER, IS INDUSTRIALLY DISABLED FROM HER DUTIES AS A POLICE OFFICER WHEREAS, the City of Tustin (hereinafter referred to as "City") is a contracting agency of the California Public Employees' Retirement System (CalPERS); and WHEREAS, the California Public Employees' 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 California Public Employees' Retirement Law and whether such disability is "industrial" within the meaning of such law; and WHEREAS, an application for the industrial disability retirement of Khaya Breskin, employed by the City in the position of Police Officer, for Orthopedic Disabilities, has been filed with CaIPERS; and WHEREAS, the City has reviewed the medical and other evidence relevant to such alleged disability. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Tustin does hereby find and determine that Khaya Breskin is incapacitated within the meaning of the California Public Employees' Retirement Law from performance of her duties in the position of Police Officer and does hereby certify under penalty of perjury that this determination was made on the basis of competent medical opinion and was not used as a substitute for the disciplinary process in accordance with Government Code section 21156(a)(2). Khaya Breskin had filed a Workers' Compensation claim for her disabling condition. The Workers' Compensation claim was accepted. BE IT FURTHER RESOLVED that the City of Tustin does hereby find and determine that such disability is a result of injury or disease arising out of and in the course of employment. Neither Khaya Breskin nor the City has applied to the Workers' Compensation Appeals Board for a determination pursuant to Section 21166 whether such disability is industrial; and BE IT FURTHER RESOLVED that the member will be separated from her position of Police Officer after expiration of her rights under Government Code Section 21164, effective July 27, 2018 and that no dispute as to the expiration of such leave rights is pending. Her last day on paid status was April 21, 2017 and her retirement date will be July 27, 2018. Resolution 18-59 Page 1 of 3 There is a possibility of third party liability. Advanced Disability Pension Payments will be made. The payments will be made monthly in the amount of $4,014.00 beginning September 30, 2018. A prorated payment will be made on September 6, 2018 in the amount of $4,661.00 for the period of July 27 through August 31, 2018. The primary disabling condition is orthopedic (Low back). The duration of the disability is expected to be permanent, which is certified by competent medical opinion. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin held on the 4t" day of September 2018. ELWYN A. MURRAY Mayor ATTEST: ERICA N. YASUDA City Clerk Resolution 18-59 Page 2 of 3 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Erica N. Yasuda, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 18-59 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 4th day of September 2018, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: ERICA N. YASUDA City Clerk Resolution 18-59 Page 3 of 3