HomeMy WebLinkAbout03 - Decision Regarding a Disability Retirement in the NBFDQ SEW Pp�T
CITY OF
s NEWPORT BEACH
C'94IF09 City Council Staff Report
July 11, 2017
Agenda Item No. 3
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Barbara Salvini, Human Resources Director - 949-644-3300,
bsalvini@newportbeachca.gov
PREPARED BY: Alison D. Alpert, Esq., Best Best & Krieger LLP
PHONE: 619-525-1304
TITLE: Adopt Decision Regarding a Disability Retirement in the NBFD
Pursuant to Resolution No. 2015-100, the City delegated the initial decision on
applications for disability retirements to the City Manager. The City Manager denied the
industrial disability retirement application of Paul Matheis. Following the City's denial,
Matheis requested an appeal hearing which was heard by an Administrative Law Judge
(ALJ) from the California Office of Administrative Hearings. Following a hearing, the ALJ
issued a Proposed Decision. The City Council rejected that Proposed Decision on
April 11, 2017, and determined it would hear the matter itself on the administrative record,
including the transcript, and with the parties submitting written argument. The City
Council considered the matter on June 27, 2017 and a decision denying the industrial
disability retirement application (Decision) has been prepared for consideration by the
City Council.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) The City Council may, in accordance with applicable law, Adopt Resolution
No. 2017-27, A Resolution of the City Council of the City of Newport Beach, California,
Adopting the Decision in the Industrial Disability Retirement of Paul Matheis, thereby
denying the Industrial Disability Retirement of Paul Matheis, or provide other direction
to counsel for the City.
FUNDING REQUIREMENTS:
There are no funding requirements if the Council adopts the Decision.
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Consider Proposed Decision of Administrative Law Judge
Regarding a Disability Retirement in the NBFD
July 11, 2017
Page 2
DISCUSSION:
After rejection of the Proposed Decision of the ALJ and the decision to hear the
matter itself, the Council is required to issue its decision within 100 days of the
rejection. The rejection occurred on April 11, 2017. The City Council must now take
action, as described above, to either adopt this Decision, or provide other direction
to counsel for the City.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Resolution No. 2017-27
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ATTACHMENT A
RESOLUTION NO. 2017-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, ADOPTING THE
DECISION ON THE INDUSTRIAL DISABILITY RETIRE-
MENT OF PAUL MATHEIS
(Section 21156, Government Code)
WHEREAS, the City of Newport Beach (hereinafter the "City") is a contracting
agency of the Public Employee's Retirement System;
WHEREAS, the Public Employee's 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 Public Employee's
Retirement Law and whether such disability is "industrial" within the meaning of such Law,
WHEREAS, an application for industrial disability retirement of Paul Matheis
employed by the City in the position of Fire Division Chief has been filed with the Public
Employees' Retirement System;
WHEREAS, pursuant to the authority delegated to the City Manager by action of
the City Council in Resolution 2015-100 pursuant to Section 21173 of the Government
Code, and after review of medical and other evidence relevant thereto, the City
determined that Paul Matheis, a local safety member of the Public Employees' Retirement
System, employed by the City, was not incapacitated within the meaning of the Public
Employees' Retirement Law;
WHEREAS, following a request for an appeal, the matter was heard before an
Administrative Law Judge ("ALJ") of the Office of Administrative Hearings and a Proposed
Decision dated January 23, 2017 was issued;
WHEREAS, on April 11, 2017, the City Council voted to reject the Proposed
Decision and hear the matter itself on the record, including the transcript, with the parties
providing written argument; and
WHEREAS, at its June 27, 2017 meeting, the City Council considered this matter.
NOW, THEREFORE, the City Council of the City of Newport Beach does resolve
as follows:
Section 1: The attached Decision is hereby adopted by the City of Newport Beach
as its Decision in the matter of the Industrial Disability Retirement Appeal of Paul Matheis.
Section 2: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
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Resolution No. 2017-27
Page 2 of 2
Section 3: If any section, subsection, sentence, clause or phrase of this resolution
is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this resolution. The City Council
hereby declares that it would have passed this resolution, and each section, subsection,
sentence, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 4: The City Council finds the adoption of this resolution is not subject to
the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or indirectly.
Section 5: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 11th day of July, 2017.
Kevin Muldoon
Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
,,-- C �--
Aaron C. Harp
City Attorney
Attachment: Newport Beach City Council's Decision dated July 11, 2017
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BEFORE THE
CITY COUNCIL OF THE CITY OF NEWPORT BEACH
In the Matter of the Statement of
Issues of-
PAUL
£
PAUL MATHEIS,
Applicant,
V.
CITY OF NEWPORT BEACH,
OAH Case No. 2016070710
Agency Case No. A09-00153
Respondent.
DECISION
This matter was heard by Laurie R. Pearlman, Administrative Law Judge (ALJ), Office
of Administrative Hearings, on October 10, 2016, in Newport Beach, California.
Carol M. Matheis, Attorney at Law, represented Paul Matheis (Applicant).
Steven M. Berliner, Attorney at Law, represented the City of Newport Beach (Respondent
or City).
On January 3, 2016, Applicant filed an application to convert his January 14, 2011, service
retirement into an industrial disability retirement. On June 1, 2016, Respondent denied the
application on the grounds that Applicant was not substantially incapacitated from performance of
his usual duties as Fire Division Chief with the City.
Applicant appealed Respondent's denial and the appeal was sent to ALJ Laurie Pearlman
(Judge Pearlman) for hearing and consideration. On October 10, 2016, the appeal hearing was
held before Judge Pearlman and Judge Pearlman received oral and documentary evidence.
After the hearing, Applicant filed a request to take judicial notice of Exhibits 1-10 and 14
and also filed a copy of the NFPA 1582 Standard on Comprehensive Occupational Medical
Program for Fire Departments. Respondent objected to both on the ground that there was no
legal basis for judicial notice to be taken of the exhibits, and the objections were sustained by
Judge Pearlman. Similarly, after the hearing, Respondent filed the Declaration of Chip Duncan,
with attachments. The Applicant objected thereto, and Judge Pearlman sustained the objection.
Neither the NFPA 1582 Standard, nor the Declaration of Chip Duncan with attachments, were
considered by Judge Pearlman as part of the administrative record. Exhibits 1-10 and 14 remain
part of the evidence, however, admitted only as administrative hearsay.
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Judge Pearlman left the record open until December 22, 2016, to enable the parties to
order and lodge a copy of the transcript; submit pages that were missing from a document
introduced at the hearing; and file closing and response briefs. These items were timely
presented and the record was closed and submitted for decision on December 22, 2016.
On January 23, 2017, a proposed decision was issued by Judge Pearlman (Proposed
Decision). On April 11, 2017, the City Council of the City of Newport Beach (City Council)
considered the Proposed Decision. At that time, the City Council rejected the Proposed
Decision and made a determination it would decide the matter itself based upon the
administrative record, including the transcript of the hearing, with the parties providing written
argument.
Counsel for the parties submitted written argument on June 21, 2017. The matter was
considered by the City Council on June 27, 2017, and this decision is hereby adopted by the
City Council on July 11, 2017.
In making this decision, the City Council has not considered any evidence not admitted
into evidence by Judge Pearlman, accepting her rulings on the parties' objections. In addition,
the City Council adopts the evidentiary rulings of Judge Pearlman on the admission of evidence,
including those exhibits admitted as administrative hearsay, subject to the limitations
recognized by Judge Pearlman that administrative hearsay cannot be relied upon to establish
any finding and can only be used to supplement other admissible evidence. To the extent Judge
Pearlman made any evidentiary ruling or finding that administrative hearsay can support a
finding of disability without direct medical evidence or that Applicant's lay opinion is
admissible to establish disability, the City Council rejects these determinations and evidentiary
rulings.
FACTUAL FINDINGS
1. Applicant worked for Respondent from July 14, 1980 until his retirement on
January 14, 2011. (Administrative Record ("AR") 375:6-10.) At the time of his retirement,
Applicant worked as Fire Division Chief. (AR 406:7-13.) By virtue of his employment,
Applicant is a local safety member of the California Public Employees' Retirement System
(Ca1PERS). (AR 91-93.)
2. On January 3, 2016, approximately five years after his service retirement,
Applicant filed an application for an industrial disability retirement. (AR 45.)
3. On June 1, 2016, the City denied the application for industrial disability
retirement on the grounds that Applicant was not incapacitated within the meaning of the Public
Employees' Retirement Law from performance of his usual duties as Fire Division Chief with
the City and with other California public agencies in Ca1PERS. (Exhibit G, p.3; AR 47.)
4. Applicant timely requested an appeal of the City's denial on June 21, 2016. The
City filed a Statement of Issues and this appeal was referred to Judge Pearlman for hearing. (AR
21-34,46.)
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5. At the appeal hearing before Judge Pearlman, the City contended that
Applicant was required to establish that he was substantially incapacitated from the
performance of his usual duties at the time of his retirement on January 14, 2011, and
remained continuously incapacitated until he filed his application for disability retirement on
January 3, 2016. (AR 128.)
6. Applicant began working for Respondent as a firefighter on July 14, 1980. (AR
375: 6-10.) From July 1990 until October 2004, he was a Fire Captain with the City and worked
"on an engine company." (AR 376:23 — 377:2.) From October 2004 until August 2006,
Applicant was a Battalion Chief. (AR 406:14-20.)
7. From August 2006 through January 2011, Applicant was a Fire Division Chief in
charge of training. (AR 406:7-13; 409:10-16.) This position was primarily administrative. (AR
410:18-20.) He was "at a desk, in a car, at the training ground or at an emergency." (AR 411:25-
412:5.) Applicant was responsible for organizing, directing, coordinating and supervising the
day-to-day activities of the Fire Department Training and Education Division, as well as
responding to fire and medical emergencies. (AR 51.) One "Essential Job Duty" for Applicant's
position with the City as a Fire Division Chief was to "Respond to fire, medical or other
emergencies and provide incident staff support as assigned." (Exhibit H; AR 51.) Applicant
testified that it meant that he had to get into his gear and be ready to perform. (AR 411:25-
412:3.)
8. While each of the positions held by Applicant from 1990 through January 2011
required him to respond to fire emergencies, only about five percent of the calls for the Fire
Department are fire calls as opposed to medical calls. (AR 409:23-410:13.) The protective gear,
which weighs 50-60 pounds, consists of a fire resistive hood and turnout coat, turnout pants,
safety boots, gloves, and a self-contained breathing apparatus. (AR 407:23-408:9.) Applicant was
required to go out on virtually every fire call, including times when he was off-duty. (AR 408:10-
15.) Applicant did not testify that he performed any active role at any of the fires he responded
to as a Fire Division Chief, or performed any work other than supervising activities. (AR
410:18-20.)
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18. None of the above Medical Reports imposed restrictions on Applicant's ability
to work. (Exhibit 5, AR 163-166; Exhibit 6, AR 167-177; Exhibit 8, AR 187-192; Exhibit 10,
AR 203-214; Exhibit 14, AR 223-227.)
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21. On January 14, 2011, Applicant took service retirement from his position with
the City as Fire Division Chief (Exhibit F; AR 43-44.)
22.
retirement.
On January 3, 201
23. While Applicant stated that from the date of his retirement through the present, he
has experienced pain Ihis pain did
not result in an inabilitv to perform. (AR 426:22-25.1
Applicant was still able to do his fob, both as a
Fire Division Chief and in his prior position, for at least 16 years. (AR 426:22-428:1.) Applicant
currently works out with weights six days per week. (AR 420:9-17.) He lifts 100 -pound
dumbbells in each hand and bench presses 150 pounds. (AR 420:20-421:11.) Applicant testified
that the average person would not be able to lift such heavy weights and that it is "extreme." (AR
425:18-24.) He has slowly progressed over the past five years to reach a point where he could do
that level of workout. (AR 424:17-425:24.) While exercising, he is very careful not to stoop, is
"very methodical" and does "a significant period of warm-up." (AR 424:5-15.) Prior to a
workout, he spends 30 to 60 minutes stretching his neck, lower back, and shoulders. (AR 424:5-
15.)
24.
Applicant testified he decided to retire because it was "the best time to retire
based on all of the situations regarding [his] employment at the time." (AR 440:14-20.) Among
the reasons he cited were his maxed out accrual, the City's increase of the amount he would
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have to nav for his retirement and
LEGAL CONCLUSIONS
1. Cause does not exist to sustain Appellant's appeal of the City's determination
that he is not substantially incapacitated from his usual duties as a Fire Division Chief, pursuant
to Government Code sections 20026, 21151, subdivision (a), and 21156, as set forth in
Findings 1 through 24.
2. Government Code section 20026 states:
"Disability" and "incapacity for performance of duty" as a basis of
retirement, mean disability of permanent or extended and uncertain
duration, as determined by the board, or in the case of a local safety
member by the governing body of the contracting agency employing the
member, on the basis of competent medical opinion. (Emphasis added).
3. Government Code section 21151, subdivision (a) states:
Any patrol, state safety, state industrial, state peace officer/firefighter, or
local safety member incapacitated for the performance of duty as the
result of an industrial disability shall be retired for disability, pursuant to
this chapter, regardless of age or amount of service.
4. Government Code section 21156, subdivision (a) (1), states in pertinent part:
If the medical examination and other available information show to
the satisfaction of the board, or in case of a local safety member,
other than a school safety member, the governing body of the
contracting agency employing the member, that the member in the
state service is incapacitated physically or mentally for the
performance of his or her duties and is eligible to retire for
disability, the board shall immediately retire him or her for
disability.
5. To be eligible for disability retirement, an applicant must have a
"substantial inability" to perform his "usual duties." (Mansperger v. Public Employees'
Retirement System (1970) 6 Cal.App.3d 873, 877.) "Substantial inability" requires more
than only difficulty in performing the tasks common to one's profession. In Hosford v.
Board of Administration of the Public Employees' Retirement System (1978) 77
Cal.App.3d 854, a case involving a state traffic officer with the California Highway
Patrol, who held the rank of Sergeant, the applicant established that he could run, but
inadequately, and that his back would probably hurt if he sat for long periods of time,
or apprehended a subject escaping on foot over rough terrain or over and around
obstacles. The court found that this was insufficient to support a finding of disability.
The court stated:
on
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stated:
Hosford argues that the "Typical Physical Demands" document
requires that he be able to perform these functions "safely and
effectively." Both terms are highly subjective. Even officers in top
physical condition may suffer injuries in performing these tasks, and
effectiveness certainly cannot be equated with brute strength. Each
officer must be expected to have an awareness of his own limitations
in facing emergency situations.
6. In Dillard v. City of Los Angeles (1942) 20 Cal.2d 599, 602, the court
Pension laws should be liberally construed and applied to the end
that the beneficent policy thereby established may be accorded
proper recognition. (Citations.)
7. A workers' compensation ruling or settlement is not binding on the issue of
eligibility for disability retirement because the focus of the issues and the parties are
different. (Smith v. City of Napa (2004) 120 Cal.App.4th 194, 207, citing Bianchi v. City
of San Diego (1989) 214 Cal.App.3d 563, 567; Summerford v. Board of Retirement (1977)
72 Cal.App.3d 128, 132.) In Reynolds v. City of San Carlos (1981) 126 Cal.App.3d 208,
the court addressed the distinction between workers' compensation laws and the
Ca1PERS: "A finding by the WCAB of permanent disability, which may be partial for the
purposes of workers' compensation, does not bind the retirement board on the issue of the
employee's incapacity to perform his duties.... (Citations.)" (Id. at 215.)
8. The Reynolds court cited Pathe v. City of Bakersfield (1967) 255 Ca1.App.2d
409 in distinguishing between the workers' compensation laws and Ca1PERS. The two
systems were distinguished as existing for entirely different reasons and they were established
to attain wholly independent objectives. (Reynolds, supra, 126 Cal.App.3d at p. 212.) The
Reynolds court further held that, although they supplement each other, "The jurisdiction of the
WCAB is exclusive only in relation to its own objectives and purposes and at the very most
overlaps the subject matter jurisdiction of the pension board on a single issue of fact only, the
issue as to whether an injury or disability is service -connected ...." (Id. at 213.) Accordingly,
a finding of industrial injury under the workers' compensation system does not entitle an
applicant to a disability retirement.
9. The Respondent correctly asserts that competent medical evidence is
needed to support a finding on the question of whether an applicant qualifies for a
disability retirement. Applicant is required to prove by a preponderance of the evidence
that he was substantially incapacitated at the time of his retirement, continuing until the
date of filing for a disability retirement. Gov. Code § 21154(d); Piscioneri v. City of
Ontario (2002) 95 Cal.App.4th 1037, 1044.
10. Applicant did not meet his burden to establish by competent medical
evidence that he was entitled to a disability retirement. First, the medical reports were
admitted as administrative hearsay that can only supplement direct medical evidence. By
itself, the medical reports are insufficient to meet Applicant's burden of proof. Applicant
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is not a medical professional and Applicant's lay opinion is not direct evidence of
disability that can be supplemented by hearsay evidence. Applicant did not provide
admissible medical evidence by calling one or more physicians to testify about his
condition and Applicant's testimony and his own interpretation of the hearsay medical
reports is insufficient. Further, the Workers' Compensation Stipulations and Awards,
admitted as administrative hearsay, are not binding in a disability retirement matter, and
do not establish disability for purposes of a disability retirement.
11. Further, while Applicant testified about the difficulties under which he
performed his duties and the pain, he testified he performed his usual and customary duties
as a Fire Division Chief until the day of his retirement. (AR 43, 419:1-3. Pain or
difficultv in Derformine duties does not establish incapacity to perform.
lay opinion could be considered evidence on his disability or substantial inability to
perform, Applicant never testified he was not able to perform his duties as Fire Division
Chief with the City at the time of his service retirement; therefore his testimony does not
support a finding of substantial inability to perform the usual duties.
12. Finally, even if the hearsay medical reports and medical evidence were relied
upon as competent evidence, which they should not be as administrative hearsay, they do not
establish physical or mental incapacity to perform usual duties from the time of Applicant's
retirement until the date of filing his application, as required under the law to support a
disabilitv retirement.
- rurtner, this restriction cioes not establlsn wnetner on a rare basis, 1n an
emergency, Applicant could perform duties at a fire or whether these restrictions would
preclude him from performing fire support on an emergency basis or any of his other duties.
13. Applicant was not incapacitated for performance of duty for a permanent or
extended and uncertain duration, on the date of his retirement, and continuing through the date
he filed his application for disability retirement, and is not eligible for an industrial disability
retirement. Applicant did not prove by a preponderance of the evidence, that he had a
substantial inability to perform his usual duties.
14. Respondent has not sustained his burden of establishing that he is incapacitated
physically for the performance of duty, as required under Government Code sections 21154
and 21156. He is therefore not entitled to an industrial disability retirement.
N.
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ORDER
1. Applicant Paul Matheis' appeal of the City's determination that he is not
eligible for and entitled to disability retirement benefits, pursuant to Government Code
sections 20026, 21151 and 21156, is denied.
2. Applicant's service retirement will not be converted to an industrial disability
retirement.
3. Applicant's application for an industrial disability retirement is denied.
Dated: July 11, 2017
x
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