Disability Retirement and the Nolan Decision

Saturday, February 26, 2005 | 0

A recent California Supreme Court decision, Nolan v. City of Anaheim, has substantially impacted the CalPers retirement process. For those making application for a disability/industrial disability retirement, the burden of proof will now rest on the CalPers member to show that he/she is substantially incapacitated from performing the usual duties of his/her position with their current employer. Additionally, the member must now demonstrate that he/she is substantially incapacitated from performing the usual duties of the position for other California public agencies in CalPers agencies including state, school and public employees.

As a result of the Nolan decision which became effective in September of 2004, CalPers now requires the completion of a two-page form entitled Physical Requirements of Position/Occupational Title which was revised in November of 2004.

The case involved a police officer with the City of Anaheim who became a whistle blower against fellow officers in the department. Mr. Nolan maintained that he was substantially incapacitated to carry out his police officer job with the City of Anaheim. The Nolan decision holds that this is not enough, but instead the CalPers applicant must show that he was disabled from all similar employment situations within the CalPers system. Taking this idea further, perhaps an individual might not be able to continue in the employment setting, such as is the case with Mr. Nolan, for the City of Anaheim, because he was a whistle blower. This did not necessarily preclude Mr. Nolan from work elsewhere in the state of California as a Police Officer.

CalPers has now issued a determination that every case involving a disability retirement needs to have the additional paperwork that addresses the above-mentioned issue. This two-page form is required to be completed by the applicant and the employer. The form must be completed in a timely manner to avoid further delay in the processing of the application and each page of documentation submitted to CalPers should contain the applicants social security number.

A CalPers member who is incapacitated from their current position but is able to perform the usual duties of their position for other public agencies, such as state, school and public employees, will be denied disability retirement if there is a similar position available.

The Nolan decision impacts all new and pending disability and industrial disability retirement applications that are presently awaiting a decision. Those currently under appeal will be determined under the new criteria.

Due to the additional information now required by the Nolan decision, additional time will be required to reach a decision concerning CalPers retirement status. The amount of time will be dependent on the unique circumstances and facts of each case and the length of time it takes CalPers to receive the additional information which has been requested. It has been estimated that an additional 3-5 months will be added to the current processing time of CalPers retirement applications.

Members will need to obtain the additional information requested by CalPers by seeking cooperation from their employer and doctor in order to satisfy the requirements.

In a follow up article, I will be providing additional information concerning the Nolan decision, the search for similar positions for other California public agencies in CalPers and related issues.

Jamie Charter has been providing vocational consulting and return to work services for 21 years through Charter and Company in Soquel, California. She is the Bay area/Central Coast coordinator for the Employer Resource Consultants, a statewide network, offering proactive solutions to employers. Jamie's specialty areas include development and implementation of disability management programs, case management, FEHA/ADA consultation, return-to-work facilitation, job analyses, conducting training seminars for employer groups and litigation /expert witness services in Forensics. Jamie has assisted City, County and school district employers with compliance matters, resulting in a positive outcome. Jamie holds a Masters Degree in Counseling and is Certified as a Professional in Disability Management, (CPDM). Jamie is also a writer and editor, with many published articles on employment related issues in wide-reaching media arenas. She can be reached at jcharter@calcentral.com .

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Norin Grancell was kind enough to make the following additional comments to the above article:

If you check you'll see that Larry (Kirk) and I were counsel for the City of Anaheim in this case.

Nolan was a local safety member of a PERS member. As such, pursuant to the Government Code, the local public agency makes the incapacity determination on industrial disability retirements among other things not PERS. In the circular PERS sent out discussing the required forms, PERS specifically confirmed that the local public agency makes the determination in the case of local safety memebers for the industrial disability retirement and their forms are NOT required but may be used by the local agency if they want for their OWN determination. However, PERS is sending out the forms to almost every local industrial disability retirement safety member with a pending retirement anyways. Our recommendation is that those forms be not adopted by any local agency because they are restrictive and that they definitely not be filled out and submitted to PERS in local safety member industrial disability retirement determinations.

Norin

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