Loading...
HomeMy WebLinkAbout06 FINDING AND DETERMINING THE INDUSTRIAL DISABILITY RETIREMENTDocuSign Envelope ID: F5AAB750-D243-4FB0-A521-EE7F836FBF11 Agenda Item 6 Reviewed: DS AGENDA REPORT City Manager Finance Director MEETING DATE: MAY 17, 2022 TO: MATTHEW S. WEST, CITY MANAGER FROM: DERICK YASUDA, DIRECTOR OF HUMAN RESOURCES SUBJECT: FINDING AND DETERMINING THE INDUSTRIAL DISABILITY RETIREMENT OF MATTHEW HOWARD SUMMARY Adoption of the attached Resolution will certify that Matthew Howard is industrially disabled from his position of Police Officer and enable CalPERS to process his industrial disability retirement. RECOMMENDATION Adopt Resolution No. 22-17 finding that Police Officer Matthew Howard is industrially disabled from performing the duties of his position. FISCAL IMPACT None. BACKGROUND AND DISCUSSION An industrial disability retirement (IDR) 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 (CaIPERS), state law requires the employer to make a determination on a member's eligibility for an IDR. In accordance with the California Public Employees Retirement Law (PERL), a local safety employee qualifies for an IDR 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. An IDR application may be submitted by the employee or by the employer on the employee's behalf. At the time of this writing, Officer Howard was in the process of submitting his application. In accordance with CalPERS guidelines, as soon as it is DocuSign Envelope ID: F5AAB750-D243-4FB0-A521-EE7F836FBF11 City Council Agenda Report May 17, 2022 Industrial Disability Retirement of Matthew Howard Page 2 believed that an employee is unable to perform his/her job because of an industrial injury or illness that is expected to be permanent or of an extended and uncertain duration, the employer must submit an application for an IDR on the employee's behalf. Therefore, if Officer Howard does not submit his application in a timely manner, the City will file an application to initiate the retirement process. Matthew Howard has been employed by the City of Tustin for nearly 21 years as a Police Officer. While the City has worked with Officer Howard over the past few years in an effort to return him to his regular job duties, his condition has reached the point where we are obligated to pursue an IDR. Officer Howard has had a number of medical conditions over the past several years, with timeframes that overlap, but this report will focus on the condition that qualifies him for an IDR. On August 20, 2020, Officer Howard filed a workers' compensation claim for cumulative trauma (CT) to the back, including additional medical conditions of hiatal hernia and gastroesophageal reflux disease (GERD), citing the CT period as May 30, 2001 through July 10, 2020. The City's standard protocol for a workers' compensation claim where there was no direct observation of an acute injury is to initially delay acceptance of the claim pending further medical evaluation, typically by an independent doctor such as a State -appointed Panel Qualified Medical Evaluator (PQME). Accordingly, on March 4, 2021, Officer Howard attended a PQME evaluation performed by Orthopedist, Dr. Shail Vyas to determine causation. Following that evaluation, Dr. Vyas found the cumulative trauma to be industrial, arising out of or in the course of performing his usual and customary duties as a Police Officer. Dr. Vyas reported findings of low back sprain/strain with central stenosis and L5 pars defect, and bilateral lower extremity radiculopathy, resulting in temporary partial disability with a number of work restrictions that preclude Officer Howard from performing the usual duties of his position: no lifting more than 20 pounds, no pushing or pulling more than 50 pounds, and no repetitive bending, stooping or squatting. Based on Dr. Vyas' report, Officer Howard's workers' compensation claim was accepted, making Officer Howard eligible for salary continuation benefits pursuant to Labor Code 4850 (LC 4850) for up to 12 months for any time off from work due to this injury. The City has a modified duty program designed to encourage a speedy return to work for employees who have suffered an injury or illness. The City initially provided Officer Howard with a temporary modified duty assignment with duties he could safely perform within the work restrictions provided by a doctor (i.e. a desk assignment). Since the City does not have sufficient staffing to accommodate permanent modified duty assignments, a modified duty assignment generally cannot exceed six (6) months. Accordingly, based on work restrictions from his back injury (as well as a prior, unrelated injury), the City was able to intermittently provide Officer Howard with a modified duty assignment from May 9, 2020 through December 17, 2020. DocuSign Envelope ID: F5AAB750-D243-4FB0-A521-EE7F836FBF11 City Council Agenda Report May 17, 2022 Industrial Disability Retirement of Matthew Howard Page 3 From December 18, 2020 through the present, Officer Howard has been continuously off work due to his back injury. During this time, Officer Howard received LC 4850 salary continuation benefits for the full 12 -month entitlement until they were exhausted on December 16, 2021. Since then, he has been on leave without pay (though he continues to receive the State's temporarily disability benefits through the City's workers' compensation administrator). To date, Officer Howard remains totally partially disabled with no change in the reported work restrictions for over a year, and no medical evidence that his condition is improving, or expected to improve to the point he can return to full duty. Based on his current status, his medical condition has now reached the "extended and uncertain duration" threshold as defined by CaIPERS, which now triggers our obligation to pursue an IDR for Officer Howard. Considering the above, the City's human resources staff and third -party workers' compensation administrator believe that the City has all the information necessary to determine that Matthew Howard is industrially disabled from his 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 CaIPERS to certify his industrial disability and allow CalPERS to process his IDR application. Prepared by: DocuSigned by: �w 961, hS 'Kal5°lRUos Senior Management Analyst Attachments: 1. City Council Resolution No. 22-17 Approved by: DocuSigned by: -f6�a�— 9bk"Y8la Director of Human Resources DocuSign Envelope ID: F5AAB750-D243-4FB0-A521-EE7F836FBF11 RESOLUTION NO. 22-17 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, FINDING THAT MATTHEW HOWARD, A LOCAL SAFETY MEMBER, IS INDUSTRIALLY DISABLED FROM HIS 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 (CaIPERS); 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 Matthew Howard, employed by the City in the position of Police Officer, for orthopedic injury, 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 Matthew Howard is substantially incapacitated within the meaning of the California Public Employees' Retirement Law from performance of his 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). Matthew Howard had filed a Workers' Compensation claim for his disabling condition. The Workers' Compensation claim was accepted. BE IT FURTHER RESOLVED that the City Council does hereby find and determine that such disability is a result of injury or disease arising out of and in the course of employment with the City. Neither Matthew Howard nor the City has applied to the Workers' Compensation Appeals Board for a determination pursuant to Section 21166 as to whether such disability is industrial; and BE IT FURTHER RESOLVED that the last date Matthew Howard was in paid status in the position of Police Officer after expiration of his leave rights under Government Code sections 21163 and 21164 was December 16, 2021 and that no Resolution 22-17 Page 1 of 3 DocuSign Envelope ID: F5AAB750-D243-4FB0-A521-EE7F836FBF11 dispute as to the expiration of such leave rights is pending. His CalPERS retirement date will be December 17, 2021. There is not a possibility of third -party liability. Advanced Disability Pension Payments will be made. The payments will be made monthly in the amount of $4,761.00 beginning May 31, 2022. A retroactive payment will be made in the amount of $21,193.00 for the period of December 17, 2021 through April 30, 2022. The primary disabling condition is Orthopedic (back). The duration of the disabling condition is of an extended and uncertain duration, lasting more than twelve consecutive months, 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 17th day of May 2022. AUSTIN LUMBARD Mayor ATTEST: ERICA N. YASUDA City Clerk Resolution 22-17 Page 2 of 3 DocuSign Envelope ID: F5AAB750-D243-4FB0-A521-EE7F836FBF11 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN 1 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. 22-17 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 17th day of May 2022, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: ERICA N. YASUDA City Clerk Resolution 22-17 Page 3 of 3